ti  ' 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBIURY 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 

Los  Angeles 
This  book  is  DUE  on  the  last  date  stamped  below. 


SCHOOL  OF  LAW  LIBRARY 

UNIVERSITY  OF  CALIFORNIA 

LOS  ANGELJES 


i 


% 


500D   WILL"  NOT  TAXABLE. 

INDIANAPOLIS,         June        2S.— The , 

"good   will"    of   a    business    cannot    be 

taxed  under   the   Indiana  law,   accord- 

mg   to   the   decision   o.f     the     Supreme 

Court  in   the   Indianapolis   News   case. 

T^he  valuation  of  tangible  property  as 

irned    for    taxation    had    not    been 

stioned,    but    the    State    board    hal 

auued  a  large   sum   for   good   will   anc 

for    value    of    the      Associated      Pr- 

franchise.      When    the    paper    re'' 

to  pay,  the  State  board  sued,   ' 

the  State  Auditor,  to  collect 


K 


L 


CAaa^Aa^ 


University  of  California 

SOUTHERN  REGIONAL  LIBRARY  FACILITY 

305  De  Neve  Drive  -  Parking  Lot  17  •  Box  951388 

LOS  ANGELES,  CALIFORNIA  90095-1388 

Return  this  material  to  the  library  from  which  it  was  borrowed. 


OTHER  WORKS  of  OSCAR  T.  SHUCK 


California  Scrap  Book,  1868 
Representative  Men  of  ttie  Pacific,  1870 
California  Anttiology,  1882 
Bench  and  Bar  in  California,  1889 
Official  Roll  of  San  Francisco,  1894 
The  San  Francisco  Historical  Abstract,  1897 
Eloquence    of    the    Far    West,    1 899- 1 900: 

Masterpieces  of  E.  D.  Baker.      Pocket 

Edition 

''  You  are  making  good  books.  c4  novel  is  no-where 
in  comparison  ivith  the  reminiscences  in  "Bench  and  Bar.  " 
—"Dr.  "Bonte,  Secretary  Board  of  Regents,  University  of 
California. 


509  Kearny  St.,  San  Francisco,  Cal. 


HISTORY  OF   THE  BENCH 
AND  BAR  OF  CALIFORNIA 


'Printing  by  Commercial  Printing  House 

LOS     ANOELE8 

Linotype  Composition  by  Miller  &  Wagner 

LCS     ANOELES 

Engravings  b\)  Los  Angeles  Engraving  Co. 

LOS    ANGELES 

'Binding  by  Glass  &  Long 


^p 


HALL    MCALLISTER 


SKK    I'Al^K     117 


HISTORY 


OF   THE 


Bench  and  Bar 


OF 


CALIFORNIA 


BEING 


biographies  of  many  ^markable  cMerit  a  Store  of  Humorous 

and  bathetic  '^collections^  (Accounts  of  Important 

Legislation  and  Extraordinary  Cases^ 


COMPREHENDING 


THE  JUDICIAL  HISTORY  OF  THE   STATE 


EDITED  BY 

OSCAR  T.  SHUCK, 

Editor  of  "Col.  E.  D.  Baker's  Masterpieces",  and  other  Works. 


U08  BnaclcB,  Cal. 

THE    COMMERCIAL   PRINTING  HOUSE 

1901 


c,  I 

Entered  according  to  Act  of  Congress,  in  the  year  iqco,  by 
M.  M.  Miller  and  Ulrich  Knoch.  in  the  office 
of  the  Librarian  of  Congress,  at 
Washington,  D.  C. 


Copyright  transferred,  iqoi,  to 
Ulrich  Knoch 


THIS    HISTORY 

IS 

REGARDFULLY  INSCIMBKD 

'JO 

Ibon.  5obn  ©.  /iRcCullougb,  %%.W>., 

Now  A  DiSTiNGUisirKD  Puhlic  Max  of  Vekmont, 

REMEMBEHED    AS 

A  Light  of  the  P^AHiiT  Bar  of  California, 

AND  FOR  his  HHILLIANT  ADMINISTRATION 
OF  THE  OFFICE  OF 

Attornev-Genekal,  18(  ).">-!  n(")7. 


^- 


PREFACE 


To  the  Hon.  M.  M.  Miller,  of  the  San  Francisco  Bar,  belongs  the  credit  of 
originating  the  idea  of  presenting  such  a  "History  of  the  Bench  and  Bar  of  Cali- 
fornia" for  the  first  half  century  as  the  present  volume  ofifers.  It  was  early  in 
the  year  1899,  that  this  conception  became  developed  in  the  mind  of  Mr.  Miller, 
who  thereupon  enlisted  the  co-operation  of  the  enterprising  publishing  house  of 
Los  Angeles,  whose  name  appears  on  the  title  page  of  this  work.  Much  material 
was  gathered  and  the  plan  was  pursued  by  its  originator,  until  the  success  of  the 
undertaking  was  assured,  through  the  favorable  reception  given  to  the  projected 
work  by  the  profession.  Then  Mr.  Miller,  under  alluring  inducements  held  out 
to  him  to  settle  in  Honolulu  and  take  part  in  the  transformation  of  the  Hawaiian 
Islands  into  a  portion  of  the  American  Union,  was  led  in  the  spring  of  1900,  to 
resume  his  legal  practice,  and  thereupon  disposed  of  his  interest  under  an  advan- 
tageous sale  to  the  publisher.  The  undersigned  author  of  the  only  like  work  then 
extant,  that  entitled,  "Bench  and  Bar  in  California,"  issued  in  1889,  was  then 
engaged  to  edit  the  present  work.  In  the  twelve  months  which  have  since  elapsed, 
the  Editor  has  given,  substantially,  all  of  his  time  and  endeavor  to  make  the  book 
answer  to  its  aspiring  title.  The  historical  articles,  which  make  up  a  large  part  of 
the  volume,  have  familiar  signatures, — those  of  experienced  and  devoted  men  who 
command  the  admiration  of  the  bar,  and  of  the  judiciary  as  well,  for  the  learning 
and  dignity  which  they  have  brought  to  their  calling.  Their  valued  contributions 
belong  not  only  to  the  story  of  the  bar,  but  to  that  of  the  State.  The  Publisher 
and  Editor  join  in  acknowledging  their  great  obligation  to  these  fruitful  minds, 
and  now  give  into  the  hands  of  a  great  profession  a  most  engaging  and  instructive 
History. 

OSCAR  r.  SHUCK. 

San  Francisco,  March  25th,  1901. 


TABLE  OF  CONTENTS 


Introductory  :     Historical  View  of  the  Judiciary  System  of  Cali- 
fornia.   Henry  H.  Reid xv 

A  Review  of  Military-Civil  Government,  1846-50.  Samuel  //'.  Holladay  3 

The  Birth  of  the  Commonwealth.    Prof.  Rockzcell  D.  Hunt 35 

Adoption  of  the  Common  Law.     The  Editor 47 

Treaty  of  Guadalupe  Hidalgo  and  Private  Land  Claims.    John  Currcy  57 

The  Death  Penalty  for  Larceny.    The  Editor 75 

Recovery  of  the  Pious  Fund.    John  T.  Doyle 81 

The  Bonanza  Suits  of  1877.    John  H.  Burke 95 

Irrigation  Laws  and  Decisions  of  California.    John  D.  Works loi 

The  Tragic  History  of  the  Sharon  Cases.    77?^  Editor 173 

The  California  Code  of  Laws.    The  Editor 191 

The  Strange  Story  of  an  Old  Bank  Deposit.     The  Editor 197 

The  Broderick  Will  Case.     The  Editor 209 

The  Horace  Hawes  Will  Case.    The  Editor 215 

Legal  Education  in  the  State  University.    Gnstav  Gutsch 221 

The  Field  of  Honor:    Historic  Duels  in  California.    Tlie  Editor  ....  227 

Lynch  Law  in  California.    John  G.  Jury 267 

The  History  op  the  Mining  Laws  of  California.    JoJm  E.  Davis  ....  279 

The  Celebrated  Trust  Will  of  James  G.  Fair.    The  Editor  . 335 

The  State  Supreme  Court  From  its  Organization  349 

Attorney-Generals  of  California  357 

Our  First  Water  Rights  Decision.     The  Editor 361 

The  Remarkable  Contempt  Case  of  Philosopher  Pickett.    The  Editor  367 
Reminiscences  of  California  Judges  and  Lawyers.     M.   M.   Estec: 

E.  IV.  McKinstry;  William  T.  Wallace;  The  Editor ^yy 

Men  of  the  First  Era.    The  Editor 417 

Veterans  Surviving  in  1900.    The  Editor 483 

Necrology  of  Recent  Years.    The  Editor 537 

Masters  Who  Followed  the  Pioneers.    The  Editor 559 

The  Adventurous  Career  of  L.  A.  Norton.    The  Editor 5()5 

Some  of  the  Strong  Men  of  Today.    The  Editor 617 

Federal  and  State  Judiciary — Past  and  Present,     llie  Editor 653 

Seniors  of  the  Collective  Bar.     The  pAiitor 771 

The  Junior  Rank.     The  Editor 993 

Citizenship  of  Chinamen.    Marshall  B.  Woodii'orth 1099 

The  Early  Bench  and  1)Ar  of  San  Jose.    JoIdi  E.  Richards 1 107 

California  Law  Books — Complete  List  1131 

Stephen  M.  White — In  Memoriam  1 137 


INTRODUCTORY:  HISTORICAL 
VIEW  OF  THE  JUDICIARY 
SYSTEM    OF    CALIFORNIA 

HENRY  H.  %EID 


Henry   H.    Reid 


L5'a-j3&dSi>&<2fow3&&& 


HISTORY  of  the 
BENCH  and  BAR 
of  CALIFORNIA 


e*3eraaso«jetactp«i«if^>e^c5|n 


INTRODUCTORY:    HISTORICAL  VIEW 

of  the  JUDICIARY  SYSTEM  of 

CALIFORNIA 


What  could  I)e  more  interesting  and  instructive  than  to  trace  the  origin 
and  development  of  the  judicial  system  of  a  great  modern  State?  And  among 
the  "American  Commonwealths" — of  whose  institutions  that  eminent  scholar 
and  acute  observer,  Professor  James  Bryce,  has  written  with  a  knowledge  and 
ability  not  elsewhere  equalled — what  state  has  a  history  more  attractive  and 
of  more  value  and  importance  than  that  of  California? 

The  philosophic  and  historic  truth,  that  in  order  to  understand  the  present 
we  must  study  the  past,  finds  no  stronger  confirmation  than  in  the  realm  of 
jurisprudence.  But  we  must  be  circumspect  in  our  search  for  the  beginnings 
of  things,  lest  we  find  ourselves  following  the  example  of  Dicdrich  Knicker- 
bocker, in  his  "History  of  New  York  from  the  Beginning  of  the  World  to 
the  End  of  the  Dutch  Dynasty,"  in  which  the  author,  having  been  "bred  to 
the  law,"  and  giving  due  regard  to  precedents,  historical  and  otherwise,  devotes 
the  five  chapters  constituting  his  first  book  to  a  history  of  the  world  and  its 
cosmogony,  with  references  to  the  famous  navigators,  Noah.  Columl)us,  and 
Captain  Lemuel  Gulliver,  the  origin  of  the  aborigines,  and  the  peopling  of 
America.  We  shall  therefore  refrain  from  exploring  the  vast  field  of  Spanish 
and  Mexican  law — based  upon  the  laws  of  the  Romans,  as  modified  1)\"  the 
Canon  law — and  from  describing,  except  with  the  utmost  brevity,  its  practical 
application  and  administration  in  California  prior  to  the  American  occupation 
in  July,  1846. 

Shortly  after  Mexico  had  won  her  independence  from  Spain,  the  new  gov- 
ernment formed  the  two  Californias  (territories)  out  of  the  old  Mexican 
states  of  Sonora  and  Sinaloa.  The  Californias  were  then  made  to  comprise 
the  sixth  judicial  circuit  of  the  Mexican  Kcpublic.  and  Alta,  oi-  I'ppi-'i'  Cali- 
fornia (our  California),  was  made  one  of  the  districts  of  that  circuit.  In 
1828,  a  court  for  the  circuit  was  installed  at  Rosario.  with  Jose  Joa<|nin  .\\  ilcs 
as  judge,  but  no  district  court  had  been  organized  for  Alta  California.  There 
was  an  i^cclesiastical  Court,  presided  o\er  by  Tadic  |ose  J^ancluv,  then  presi- 
dent of  the  missions  and  riairio  furiiiwo,  oi"  represcntatixc  ol  the  I  bishop  of 
Sonora. 


xvi.  History  of  the  Bench  and  Bar  of  California. 

Under  the  Mexican  law  of  December  29,  1836,  the  alcaldes  exercised  juris- 
diction (in  civil  law  nomenclature)  over  cases  of  conciliation,  oral  litigation, 
and  preliminary  proceedings,  of  both  civil  and  criminal  nature.  There  were 
several  attempts  to  establish  a  Superior  Court,  and  in  June,  1845,  the  matter 
of  the  reorganization  and  regulation  of  a  superior  tribunal  of  justice  was  taken 
up.  This  was  to  consist  of  two  judges  {ministers)  and  an  attorney  general 
(fiscal),  and  to  be  divided  into  two  chambers. 

As  to  inferior  jurisdictions,  there  was  to  be  in  each  capital  of  a  partido 
a  court  of  first  instance,  presided  over  provisionally  by  the  First  Alcalde,  where 
there  was  an  Ayuntamiento  (or  town  council),  and  elsewhere  bv  a  justice  of 
the  peace  of  first  nomination. 

There  was  but  brief  oi^jjortunity  to  test  the  wisdom  of  this  judicial  system 
by  actual  practice;  for  war  with  the  United  States  quickly  followed,  resulting 
in  American  occupation  and  annexation. 

The  transition  from  the  old  regime  to  the  new  was  sudden  as  well  as 
permanent,  and  the  efificient  administration  of  affairs  by  the  military  officials, 
until  the  establishment  of  civil  government  and  formal  tribunals  for  the 
administration  of  justice,  put  to  shame  the  history  of  high  officials  in  later 
periods  of  our  national  life. 

The  first  of  these  military  governors  was  Colonel  Richard  B.  Mason,  whose 
administration  began  on  May  31,  1847,  ^^^  terminated  on  April  13,  1849.  He 
appears  to  have  been  a  man  of  excellent  judgment,  and,  as  far  as  possible,  he 
acted  upon  the  American  principle  that  the  military  should  be  subordinate 
to  the  civil  power.  He  ordered  that  cases  should  be  tried  by  jury — consisting, 
in  ci\-il  cases,  of  six,  and  in  criminal  cases,  of  twelve  jurors.  As  illustrative 
of  his  determination  that  all  classes  should  be  equal  before  the  law,  Hittell.  in 
his  History  of  California,  gives  the  following  account : 

"In  November,  1847,  Father  Real,  of  Santa  Clara,  was  suerl  before  the 
Alcalde  of  San  Jose,  for  a  breach  of  contract.  In  defense,  he  pleaded  that,  as 
an  ecclesiastic,  he  w^as  not  amenable  to  the  profane  judgment  of  a  civil  court. 
The  question  being  referred  to  the  Governor,  the  latter  (Mason)  replied  that 
he  did  not  know  what  peculiar  privileges  his  Reverence  enjoyed,  but  it  was  very 
evident  that  if  he  departed  from  his  religious  calling  as  a  Catholic  priest,  and 
entered  into  a  secular  bargain  with  a  citizen,  he  placed  himself  upon  the  same 
footing  with  the  citizen,  and  should  be  required,  like  everybody  else,  to  comply 
with  his  agreement.  By  this  decision,  unimportant  as  it  might  have  appeared. 
Governor  Mason  wiped  out  from  California  jurisprudence  the  abuse  of  clerical 
privilege,  which  had  grown  up  as  a  part  of  the  Civil  Law." 

Colonel  Mason  was  succeeded  as  Governor  by  General  Bennet  Riley. 
Judge  E.  W.  McKinstry  has  observed  of  this  first-class  officer,  in  an  address 
before  the  Society  of  California  Pioneers,  on  September  9.  1871.  that  he  "was 
not  too  scientific  a  soldier  to  fight,  and  not  so  much  of  a  constitution-monger 
.as  to  interfere  with  the  natural  course  of  events.     He  employed  without  osten- 


History  of  the  Bench  and  Bar  of  California.  xvii. 

tation,  and  surrendered  without  delay,  such  civil  powers  as  were  thrust  upon 
him  by  an  extraordinary  combination  of  circumstances.'' 

On  June  3,  1849,  Governor  Riley  issued  a  proclamation  for  the  election 
of  a  Superior  Court  of  four  judges  and  a  fiscal,  a  judge  of  first  instance  for 
each  district,  alcaldes,  and  justices  of  the  peace.  The  election  took  place 
August  I,  i<S49,  and  John  W.  Geary  was  chosen  first  alcalde,  receiving  all 
the  votes  cast  in  San  Francisco,  to-wit,  15 16.  Frank  Turk  was  chosen  ivs 
second  alcalde.  Peter  H.  Burnett  was  chosen  from  San  Francisco  and  San  Jose 
as  one  of  the  four  judges  of  the  Superior  Court;  Pacificus  Ord,  Lewis  Dent, 
and  Jose  M.  Covarrubias  were  the  other  three.  Governor  Riley  then  appointed 
Frederick  Billings  as  fiscal,  or  attorney-general,  of  California.  In  October, 
Judges  Burnett  and  Dent  resigned.  One  of  Governor  Riley's  appointments 
was  that  of  William  B.  .Mmond  as  judge  of  a  special  court  of  first  instance, 
with  civil  jurisdiction  only.  Hittell  will  not  be  accused  of  hyperbole  when  he 
observes  concerning  Almond,  that  "he  was  what  may  be  called  an  original 
character."  The  historian  continues:  "He  was  a  man  of  quick  discernment, 
and,  as  far  as  it  went,  clear  judgment.  But  when  he  made  up  his  mind,  which 
he  often  did  before  he  heard  any  evidence,  nothing  could  change  him.  He 
had  a  sovereign  contempt  for  lawyers'  speeches,  legal  technicalities,  learned 
opinions,  and  judicial  precedents.  He  had  an  idea  that  he  could  see  through 
a  case  at  a  glance,  and  imagined  that  he  could,  with  a  shake  of  his  head  or  a 
wave  of  his  hand,  solve  questions  which  would  have  puzzled  a  Marshall  or  a 
Mansfield." 

In  the  address  by  Judge  McKinstry,  from  which  1  have  already  (|uote(l  his 
opinion  of  Governor  Riley,  the  speaker  gave  the  following  graphic  and  humor- 
ous account  of  the  rough  and  ready  administration  of  justice  at  this  period, 
which  could  hardly  be  improved  upon : 

"The  immense  immigration  which  followed  the  discovery  of  gold  brought 
into  conflict  two  principles  of  international  law.  The  first  is,  that  a  coloi:y 
from  a  civilized  nation  carries  with  it  the  laws  and  usages  of  the  parent  state. 
The  second  is,  that  the  laws  and  usages  of  a  conquered  country  remain  in  oper- 
ation until  changed  by  the  conqueror.  Some  parts  of  California  had  been 
long  settled  and  inqjroved,  while  in  much  the  larger  part  the  ATexican  ponula 
tion  was  so  inconsiderable  as  hardly  to  constitute  an  element  in  the  numerical 
estimate  of  the  whole. 

Hence  arose  a  pleasing  variet}"  in  the  modes  of  determining  litigation.  In 
Los  Angeles  and  San  Jose  there  were  officials,  accomplished,  and  familiar  with 
the  sources  of  their  own  beautiful  system,  and  with  the  Mexican  decrees  and 
statutes  by  which  that  system  had  been  moditied.  I'Jsewhere  in  the  South,  a 
rude  justice,  fitted  to  the  business  am!  affairs  and  suited  lo  the  tastes  ot  a  pas- 
toral people,  was  dispensed  sometimes  by  a  jiie::  del  pa::  as  dusky  as  the  sujjremc 
judge  of  a  reconstructed  American  state  after  our  Civil  W'ar,  who  was  said  to 
be  so  dark  that  the  whole  bar  could  not  enlighten  him.  In  Sacramento,  where 
"Pike  county"  was  once  in  the  ascendant,  judgments  were  rendered  according 


xviii.  History  of  the  Bench  and  Bar  of  California. 

to  the  course  of  the  Common  Law  of  England,  and  the  Acts  of  the  Alissouri 
Legislature,  while  in  San  Francisco  was  a  wonderful  tribunal.  Here  the  Judge 
of  First  Instance  assumed  a  jurisdiction  unlimited  as  to  parties  or  subject 
matter.  All  was  iish  that  came  to  his  net.  His  w^as  a  court,  civil  and  crim- 
inal, taking-  cognizance  of  matters  spiritual  or  in  probate,  matters  maritime 
or  in  admiralty,  matters  at  common  law  or  in  e(|uitv,  vet  always  recognizing 
the  rule  of  the  Civil  Law  as  paramount  when  auvbodv  could  tell  what  was 
the  rule  of  the  Civil  Law.  Towards  the  last,  just  thirty  minutes  were  allowed 
to  each  trial.  Now.  in  the  winter  of  1849-50,  it  rained  incessantly  four  months 
and  a  half.  In  default  of  jury-room  twelve  sufferers  were  not  infrequently 
corralled  in  the  back  yard,  to  find  a  verdict  upon  the  opening  of  plaintiff's 
counsel,  or  the  testimony  of  the  first  witness.  They  generally  found  it.  The 
clerk's  name  was  Pomeroy,  and  the  judicial  opinion  ended  with  the  invariable 
formula,  'Pom.,  what's  our  fees?'  Yet  pioneers  have  no  call  to  be  ashamed 
of  their  courts.  As  a  rule,  excellent  common  sense  guided  their  actions,  and 
they  gave  what  was  then  more  desired  than  elaborate  opinions,  prompt  and 
decisive  judgments." 

The  ])ractical  wisdom  shown  in  the  work  of  the  convention  which  framed 
the  constitution  of  1849  ^""^^  never  failed  to  evoke  the  wonder  as  well  as  the 
commendation  of  all  who  have  given  due  consideration  to  the  abnormal  con- 
ditions and  circumstances  under  \\hich  it  was  constituted  and  performed  its 
labors.  And  not  the  least  valuable  and  admirable  result  was  that  portion  of 
the  organic  law  which  provided  for  the  judicial  administration  of  the  laws 
by  which  the  people  of  California  were  to  be  governed. 

The  judicial  department  under  that  constitution  consisted  of  a  Supreme 
Court,  District  Courts,  County  Courts,  Probate  Courts,  Justices  of  the  Peace, 
and  such  municipal  and  other  inferior  courts  as  the  legislature  might  deem 
necessary.  The  Supreme  Court  was  composed  of  a  chief  justice  and  two 
associate  justices,  their  term  of  office  being  six  years.  The  District  Courts 
were  given  original  jurisdiction  in  law  and  equity  in  all  civil  cases  where  the 
amount  in  dis]uite  exceeded  $200,  exclusive  of  interest,  and  in  all  criminal 
cases  not  otherwise  provided  for,  and  in  all  issues  of  fact  joined  in  Probate 
Courts.  The  first  district  judges  were  chosen  by  the  legislature,  for  a  term 
of  two  years ;  their  successors  to  be  elected  by  the  people,  their  terms  to  be 
six  years.  The  County  Courts  were  given  jurisdiction  of  cases  arising  in 
Justices'  Courts,  and  in  such  special  cases  as  the  legislature  might  prescribe. 
They  were  to  exercise  no  original  civil  jurisdiction  except  in  such  specified 
cases.  The  judges  of  the  County  Courts — their  terms  of  office  four  years — 
were  to  perform  the  duties  of  surrogate  or  probate  judge,  and  also,  with  two 
Justices  of  the  Peace,  to  hold  courts  of  sessions,  with  such  crinu'nal  jurisdiction 
as  the  legislature  might  prescribe. 

-As  authorized  l)y  the  constitution,  the  legislature  chose  as  judges  of  the 
vSuj)reme  Court.  S.  C.  Hastings,  chief  justice,  and  Henry  A.  Lyon  and  Na- 
thaniel P)ennett.  associate  justices. 


History  of  the  Bench  and  Bar  of  California.  xix. 

On  March  30,  1850,  after  dividing  the  State  into  nine  judicial  districts, 
tlie  legislature  elected  the  district  judges,  and  on  April  5th,  after  the  erection 
of  a  Superior  Court  for  San  Francisco,  they  elected  three  judges  for  it.  The 
first  district  judges  thus  chosen  were,  O.  S.  W'itherby,  for  the  First  District, 
Henry  A.  Tefft,  Second  District,  John  H.  Watson,  Third  District,  Levi  Par- 
sons, Fourth  District,  Charles  N.  Creaner,  Fifth  ]3istrict,  James  S.  Thomas, 
Sixth  District,  Rol)ert  Hopkins,  Seventh  District,  William  R.  Turner,  Eighth 
District,  and  W.  Scott  Sherwood,  Ninth  District.  The  first  judges  of  the 
Superior  Court  of  San  Francisco  were  P.  H.  Morse,  Chief  Judge,  Hugh  C. 
Murray  and  James  Caleb  Smith,  associates. 

By  the  amendments  to  the  constitution  of  1849,  i"itified  September  3,  1862, 
the  Supreme  Court  was  reorganized  by  increasing  its  members  from  three 
to  five,  and  extending  their  term  of  office  from  six  to  ten  years,  with  appellate 
jurisdiction  in  all  cases  in  e(|uity.  all  cases  at  law,  in\T)lving  title  to  real  estate, 
cases  in  which  the  demand  or  value  of  the  property  in  controversy  amounted 
to  $300,  cases  arising  in  probate  courts  and  also  in  criminal  cases  amounting 
to  felony  on  questions  of  law  alone.  Power  was  also  gi\-en  to  it  to  issue  writs 
of  mandamus,  certiorari,  prohibition  and  habeas  corpus.  By  the  constitution 
of  1849,  the  Supreme  Court  was  not  given  any  original  jurisdiction.  The 
State  was  divided  into  fourteen  judicial  districts,  with  power  in  the  legislature 
to  make  such  alterations  as  the  public  good  might  re(|uire;  such  alterations 
could  not  be  made,  however,  except  by  a  two-thirds  vote  of  all  the  members 
elected  to  both  houses  of  the  legislature.  In  addition  to  their  jurisdiction  in 
cases  of  law  and  equity,  the  District  Courts,  and  the  judges  thereof,  were 
authorized  to  issue  writs  of  habeas  corpus  on  behalf  of  any  person  held  in 
actual  custody  in  their  respective  districts. 

The  County  Courts  were  given  original  jurisdiction  in  cases  of  forcil)le 
entry  and  detainer,  insolvency,  actions  to  prevent  or  abate  nuisances,  special 
cases  and  proceedings,  not  otherwise  provided  for,  and  such  criminal  juris- 
diction as  the  legislature  might  prescribe.  They  also  had  appellate  jurisdic- 
tion in  cases  arising  in  justices  and  other  inferior  courts.  The  county  judges 
were  also  to  hold  Probate  Courts  and  perform  such  duties  as  Probate  Judges  as 
might  be  prescribed  by  law.  Power  was  given  them  to  issue  writs  of  habeas 
corpus  in  their  respective  counties.  In  neither  the  original  constitution  nor  by 
the  amendments  were  the  salaries  of  the  judges  fixed.  Their  salaries  were  to 
be  fixed,  from  time  to  time  by  the  legislature,  with  the  proviso  that  the  com- 
pensation should  not  be  increased  nor  diminished  during  the  term  tor  which 
the  judges  had  been  elected. 

.\t  the  election  of  judges,  after  the  amendments  to  the  constitution  of  184Q. 
Silas  W.  Sanderson,  Lorenzo  Sawyer,  John  Currey,  .\ugustus  L.  Rhodes, 
and  Oscar  L.  v^hafter  were  chosen,  as  justices  of  the  reorganized  Supreme 
Court.  Of  these  able  and  eminent  jurists,  but  two  survive.  Judge  Currey 
remains  a  notable  figure — although  merely  as  a  priwite  citizen — in  San  l^^ran- 
cisco,  where  he  has  resided   since  his  retirement    from   public  office,      jndge 


XX.  '        History  of  the  Bench  and  Bar  of  California. 

Rhodes  is  now  (1900)  by  the  appointment  of  the  Governor,  and  with  the 
approval  of  every  lawyer  in  the  State,  a  judge  of  the  Superior  Court  of  Santa 
Clara  County,  and  has  been  nominated  and  will  be  elected  by  botli  of  the  great 
political  parties  of  the  county — a  tribute  not  less  honorable  to  those  who  pay 
it,  than  to  him  to  whom  it  is  paid. 

For  a  period  of  seventeen  years,  justice  was  administered  in  our  courts, 
as  thus  constituted,  by  a  l)ody  of  judges,  the  majority  of  whom  were  honest 
and  capable  and  some  of  whom  achieved  well  merited  fame.  Like  all  other 
human  institutions,  our  judicial  system  developed  some  objectionable  fea- 
tures in  its  actual  working  and  some  changes  were  imperatively  demanded. 
Opinions  were  variant  as  to  how  and  how  far  the  changes  should  be  effected ; 
but  the  view  which  generally  ol)tained  among  the  members  of  the  bar  was 
against  any  radical  reconstruction  of  the  judicial  system.  But  when  the  Con- 
stitutional Convention  met  in  1879  ^^  ^^^s  found  that  a  majority  of  its  mem- 
bers were  in  favor  of  as  many  "brand  new"  provisions  in  the  constitution  as 
could  i)ossibly  be  secured,  and  the  judiciary  was  dealt  with  accordingly.  The 
Supreme  Court  was  still  further  enlarged  in  membership,  seven  judges  instead 
of  five,  which  has  since  been  (actually  if  not  nominally)  extended  by  the 
appointment  of  five  commissioners,  who  examine  and  give  written  opinions 
upon  cases  referred  to  them  by  the  Court. 

Their  terms  were  also  extended  to  twelve  years  and  their  salaries  fixed  at 
$6000  a  year.  The  Court  is  divided  into  two  departments — but  also  sits  "in 
banc,"  to  consider  such  cases  as  are  deemed  of  sufficient  importance  to  justify 
it.  The  concurrence  of  all  the  judges  sitting  in  a  department  is  necessary  to 
pronounce  a  judgment  therein;  and  in  banc,  the  concurrence  of  four  judges 
is  necessary.  All  decisions  of  the  Court,  in  banc  or  in  department,  are  required 
to  be  in  writing,  stating  the  grounds  of  the  decision.  Complaints  having 
been  made  because  of  delays  in  the  decision  of  causes  under  the  old  system,  the 
framers  of  the  new  constitution  endeavored  to  correct  the  evil  by  providing  that 
no  judge  of  a  Superior  Court  nor  of  the  Supreme  Court,  shall  after  the  first 
day  of  July,  1880,  be  allowed  to  draw  or  receive  any  monthly  salary  unless 
he  shall  take  and  subscribe  an  affidavit  before  an  officer  entitled  to  adminis- 
ter oaths,  that  no  cause  in  his  court  remains  undecided  that  has  been  sub- 
mitted for  decision  for  the  period  of  ninety  days. 

Shakespeare  in  Hamlet's  soliloquy,  where  he  enumerates  some  of  the  poign- 
ant ills  which  affect  humanity,  speaks  of  the  "law's  delays" — and  every  lawyer 
knows  the  chapter  of  Magna  Charta  where  King  John  undertook  that  he 
would  neither  sell,  nor  deny,  nor  defer  right  or  justice  to  any  one — NiiUi 
vendeinus,  nitlli  negabinms,  ant  diiferenuis,  rectum  vel  jnsticiani.  The  inten- 
tion of  the  constitution  makers  was  therefore  praiseworthy — but  it  may  be 
questioned  whether  the  means  they  adopted  were  really  efficacious.  They  at- 
tempted to  stimulate  promptitude  of  decision  by  making  the  payment  of 
salaries  dependent  thereon ;  but  at  the  same  time,  they  greatly  increased  the 
difficultv  in  the  way  of  rendering  judgment  promptly,  by  re(|uiring  that  reasons 


History  of  the  Bench  and  Bar  of  California.  xxi. 

in  writing  be  given  in  each  case  for  the  conchision  at  which  the  court  has 
arrived. 

No  one  will  deny  that  there  were  just  causes  for  complaint  under  the 
old  system  by  reason  of  unreasonable  delays  in  deciding  cases ;  but  the  delays 
were  usually  in  the  trial  courts.  As  to  them,  the  salary  provision  of  the  new 
constitution  was  probably  wise,  for  they  are  not  required  to  give  reasons  for 
their  decisions.  But  as  to  the  requirement  that  the  Supreme  Court  should  give 
the  grounds  of  their  decision  in  every  case,  I  think  there  can  be  but  one  opinion, 
that  it  is  unwise  in  the  extrenie.  An  attempt  was  made  by  the  legislature  of 
1854  to  compel  appellate  courts  to  give  in  writing  the  reasons  for  their  de- 
cisions, and  upon  the  question  as  to  the  policy  of  such  a  requirement  Judge 
Field,  speaking  for  the  Supreme  Court,  said,  that,  "the  practice  of  giving 
reasons  in  writing,  for  judgments,  has  grown  into  use  in  modern  times.  Com- 
monly, the  reasons,  if  any  were  given,  were  generally  stated  orally,  by  the 
judges,  and  taken  down  by  the  reporters  in  shorthand.  In  the  judicial  records 
of  the  Kings  Courts,  'the  reasons  or  causes  of  the  judgments,'  says  Lord 
Coke,  'are  not  expressed,  for  wise  and  learned  men  do,  before  they  judge, 
labor  to  reach  to  the  depth  of  all  the  reasons  of  the  case  in  cjuestion,  but  in 
their  judgments  express  not  any;  and,  in  truth,  if  judges  should  set  down 
the  reasons  and  causes  of  their  judgment  within  every  record,  that  immense 
labor  should  withdraw  them  from  the  necessary  services  of  the  commonwealtli 
and  their  records  should  grow  to  be  like  clcphantiui  libri.  of  infinite  length, 
and,  in  mine  opinion  lose  somewhat  of  their  present  authority  and  reverence, 
and  this  is  also  worthy  for  learned  and  grave  men  to  imitate.  (Coke's 
Rep.,  part  3,  Pref.  5.)  The  opinions  of  the  judges  setting  forth  their  reasons 
for  their  judgments,  are  of  great  importance  in  the  information  they  impart 
as  to  the  principles  of  law  which  govern  the  court,  and  should  guide  litigants 
and  right-minded  judges  in  important  cases — and  where  the  pressure  of 
other  business  will  permit,  such  o])inions  should  be  given.  It  is  not  every 
case,  however,  which  will  justify  the  expenditure  of  time  necessary  to  write 
an  opinion.  Many  cases  involve  no  new  principles,  and  are  appealed  only 
for  delay.  It  can  serve  no  purpose  of  public  good  to  repeat  elementary  prin- 
ciples of  law  which  have  never  been  (juestioned  for  centuries."  Nothing  in 
the  experience  of  courts  since  these  words  were  written  furnishes  any  answer 
to  the  views  thus  set  forth  by  Judge  Field,  with  his  characteristic  clearness 
and  force. 

Besides  the  great  and  important  changes  thus  made  in  the  Su[)rcme  Court, 
a  sweeping  revolution  followed  as  to  the  remainder  of  the  judiciary.  All  the 
old  courts  of  original  jurisdiction  except  those  of  Justices  of  the  Peace  were 
swept  away,  and  in  their  place,  a  Superior  Court  for  nearly  every  county  in 
the  vStatc  was  organized.  To  this  court  all  cases  then  pending  in  the  District 
Courts,  County  Courts,  Probate  Courts,  and  all  other  inferior  courts,  except 
justices  of  the  ])eace.  were  transferred,  and  all  cases  in  which  those  C(^urts 
had  exercised   inrisdiction  were  tlicnceforth  to  bt-  bronqlit.  heard,  and  deter- 


xxii.  History  of  the  Bench  and  Bar  of  California. 

mined  in  the  new  Superior  Court.  To  the  same  judge  are  confided  the  powers 
exercised  in  other  communities  by  separate  tribunals.  He  is  to  perform  all' 
the  duties  of  tlie  judge  in  cases  at  common  law,  both  civil  and  criminal ; 
he  is.  as  chancellor,  to  apply  all  the  rules  and  remedies  of  equity  jurisprudence; 
he  is  to  perform  the  functions  of  the  spiritual  courts,  as  to  wills,  and  estates 
of  decedents,  and  matrimonial  cases,  besides  determining-  all  special  proceed- 
ings, and.  in  the  absence  of  federal  legislation,  dealing  with  cases  of  insol- 
vency. Considering  the  learning  and  labor  necessarily  involved  in  the  per- 
formance of  these  multifarious  duties,  it  must  be  conceded  that  the  administra- 
tion of  justice  in  our  courts  is  far  better  than  could  reasonably  have  been  ex- 
pected. 

Among  the  new  things  contained  in  the  ccMistitution  of  1879,  are  the  pro- 
visions making  the  judges  of  Superior  Courts  ineligible  to  any  other  ofiice 
or  employment  than  a  judicial  office  or  employment  during  the  term  for  which 
they  shall  ha\e  been  elected,  and  making  their  salaries  payable,  one-half  by  the 
county  and  one-half  by  the  State.  One  of  the  most  important  provisions,  how- 
ever, is  that  which  authorizes  the  legislature  to  remove  justices  of  the  Supreme 
Court  and  judges  of  the  Superior  Court.  This  can  be  done  by  a  concurrent 
resolution  of  both  houses  of  the  legislature,  adopted  by  a  two-thirds  vote  of 
each  house.  A  copy  of  the  complaint  must  be  served  on  the  party  complained 
of,  and  an  opportunity  given  him  to  be  heard.  An  attempt  w-as  made  by  a  dis- 
appointed litigant  to  secure  the  removal  of  two  of  the  justices  of  the  Supreme 
Court,  under  this  provision,  but  the  attempt  ignominiously  failed.  There 
may  be  occasions  when  the  exercise  of  this  summary  method  of  getting  rid 
of  an  objcctional)le  judge  would  be  justifiable,  but  it  is  a  very  dangerous  expe- 
dient, and  more  likely  to  be  used  to  remove  from  oftice  a  judge  wdio  is  un- 
popular rather  than  one  who  is  ignorant  or  unjust.  That  the  judiciary  should 
as  far  as  possible  be  indei)endent  of  both  the  other  departments  of  the  govern- 
ment— executive  and  legislative — is  shown  by  the  history  of  every  government 
in  w  hich  iudicial  tril)unals  have  existed.  The  duties  of  judges  and  the  reasons 
why  they  should  not  be  controlled  by  any  fear  of  legislative  action  which 
might  result  from  any  unpopular  decision,  have  never  been  stated  more  cc^i- 
vincingly  than  by  Daniel  Webster,  in  the  Massachusetts  Constitutional  Con- 
vention, in  words  that  should  never  be  forgotten.  After  some  reference  to 
English  judicial  history,  he  said: 

"It  cannot  be  denied  that  one  great  object  of  written  constitutions  is  to  keep 
the  departments  of  government  as  distinct  as  possible,  and  for  this  purpose  to 
impose  restraints  designed  to  have  that  effect.  And  it  is  equally  true,  that  there 
is  no  department  in  which  it  is  more  necessary  to  impose  restraints  than  the 
legislature.  The  tendency  of  things  is  almost  always  to  augment  the  power  of 
that  department,  in  its  relation  to  the  judiciary.  Tlie  judiciary  is  composed  of 
few  persons,  and  those  not  such  as  mix  habitually  in  the  pursuits  and  objects 
which  most  engage  public  men.  They  are  not,  or  never  should  be,  political 
men.  They  have  often  unpleasant  duties  to  perform,  and  their  conduct  is  often 
liable  to  be  canvassed  and  censured,  where  their  reasons  for  it  are  not  known, 
or  cannot  be  understood.  ...  It  is  the  theory  and  plan  of  the  constitution 
to  restrain  the  legislature  as  well  as  other  departments,  and  to  subject  their 
acts  to  judicial  decision,  whenever  it  appears  that  such  acts  infringe  constitu- 
tional limits.  Without  this  check,  no  certain  limitations  could  e.xist  on  the 
exercise  of  legislative  power.     .     .     .     The  Judge  is  bound  by  his  oath  to  decide 


History  of  the  Bench  and  Bar  of  Califoniia.  xxiii. 

according  to  law.  The  constitution  is  the  supreme  law.  Any  act  of  the  legis- 
lature, therefore,  inconsis^tent  with  that  supreme  law,  must  yield  to  it;  and  any 
Judge,  seeing  this  inconsistency,  and  yet  giving  effect  to  the  law,  would  violate 
both  his  duty  and  his  oath.  But  it  is  evident  that  this  power,  to  be  useful,  must 
be  lodged  in  independent  hands.  ...  If  the  legislature  should  unhappily  be 
in  a  temper  to  do  a  violent  thing,  it  would  probably  take  care  to  see  that  the 
bench  of  justice  was  so  constituted  as  to  agree  with  it  in  opinion.  There  is 
nothing,  after  all,  so  important  to  individuals  as  the  upright  administration  of 
justice.  This  comes  home  to  every  man;  life,  liberty,  reputation,  property — all 
depend  on  this.  No  government  does  its  duty  to  the  people  which  does  not 
make  ample  and  stable  provision  for  the  exercise  of  this  part  of  its  powers.  Nor 
is  it  enough  that  there  are  courts  which  will  deal  justly  with  mere  private 
questions.  We  look  to  the  judicial  tribunal  for  protection  against  illegal  or 
unconstitutional  acts,  from  whatever  quarter  they  may  proceed.  The  courts 
of  law,  independent  Judges,  and  enlightened  juries,  are  citadels  of  popular  lib- 
erty, as  well  as  temples  of  private  justice. 

"The  most  essential  rights  connected  with  political  liberty  are  there  can- 
vassed, discussed  and  maintained;  and  if  it  should  at  any  time  so  happen  that 
these  rights  should  be  invaded,  there  is  no  remedy  but  a  reliance  on  the  courts 
to  protect  and  vindicate  them.  Tliere  is  danger,  also,  that  legislative  bodies 
will  sometimes  pass  laws  interfering  with  other  private  rights  than  those  con- 
nected with  political  liberty.  Individuals  are  too  apt  to  apply  to  the  legislative 
power  to  interfere  with  private  cases  or  private  property;  and  such  applications 
sometimes  meet  with  favor  and  support.  There  would  be  no  security,  if  these 
interferences  were  not  subject  to  some  subsequent  constitutional  revision,  where 
all  parties  could  be  heard,  and  justice  be  administered  according  to  the  standing 
laws." 

That  these  dangers  to  the  independence  of  the  judiciary  were  not  imagin- 
ary, was  shown  in  the  siihsequent  history  of  the  old  Bay  State,  when  a  judge 
was  deprived  of  his  office  hecause  he  executed  a  hiw  of  the  United  States 
which  was  disHked  by  the  Massachusetts  legislature  at  that  time. 

The  constitution  of  1879,  with  many  undeniable  merits  and  some  demerits, 
as  the  people  have  already  perceived,  and  have  endeavored  to  remedy  in  some 
respects,  was  duly  ratified  and  went  into  operation  in  the  following  year. 
The  results,  as  might  have  been  expected,  have  not  been  such  as  were  predicted 
by  either  friends  or  enemies  of  the  new  organic  law ;  the  millennium  has  not 
dawned  upon  us,  neither  has  "chaos  come  again."  A  people  with  the  traditions 
and  experiences  of  self-government  may  be  interfered  with  by  bad  or  imper- 
fect laws,  but  will  in  practice  so  admini.ster  their  affairs  that  substantial  justice 
will  in  most  instances  be  attained.  This  truth  has  been  illustrated  by  the 
people  of  California  for  the  past  fifty  years,  and,  T  have  no  doubt,  will  ct)ntintio 
to  be  so  in  the  future. 

The  justices  of  the  Sui)reme  Court  chosen  at  the  first  election  were  Robert 
F.  Morrison,  chief  justice,  and  K.  W.  McKinstry.  Samuel  B.  McKee.  James 
D.  Thornton,  John  R.  Sharjjstein,  M.  II.  Myrick  and  iCrskine  M.  Ross,  asso- 
ciate justices.  The  Chief  Justice  and  Justices  McKinstry,  McKee.  Thornton  and 
Sharpstein,  had  been  judges  of  District  Courts,  and  Justice  Myrick  had  been 
Probate  Judge  in  San  Francisco  for  many  years.  Justice  Ross  alone  had  held 
no  judicial  office:  but  after  distinguished  and  honorable  service  as  Justice 
of  our  Supreme  Court  he  was  ai)pointed,  first.  District  and  then  Circuit  Judge 
of  the  United  States,  in  both  of  which  positions  he  has  won  addition;d  laurels 
by  the  learned,  a1)le  and  laithrul  performance  of  the  duties  of  his  exalted 
station,  both  as  trial  judge  and  in  the  United  States  Circuit  Court  of  Appeals. 
Chief  Justice  Morrison  and  Justices  McKee  and  Sharpstein  have  passed  to  a 
still  higher  tribunal,  but  McKinstry,  Thornton  and  Myrick  still  remain  with 


xxiv.  History  of  the  Bench  and  Bar  of  California. 

us.  Recent  public  addresses  and  arguments  by  Judge  McKinstry  before  the 
court  of  vvhicli  he  was  formerly  a  very  important  part,  show  no  failure  of  in- 
tellectual strength  and  brilliancy. 

This  sketch  has  already  exceeded  its  proper  limits,  and  therefore  even  a 
brief  statement  and  consideration  of  the  jurisprudence  of  the  State,  made  up 
of  the  legislative  enactments  and  judicial  decisions  of  a  half  century,  cannot 
be  given  here.  It  deserves  and  will  repay  all  the  attention  that  the  juridical 
student  may  bestow  ui)on  it.  This  comix)site  structure  is  formed  of  materials 
drawn  from  the  history  and  experience  of  the  ages,  of  governments  ancient 
and  modern,  in  the  old  world  and  the  new.  Notwithstanding  the  somewhat 
flamboyant  rhetoric  employed  in  the  report  of  the  judiciary  committee  of  the 
first  legislature  in  exalting  the  Common  Law  of  England  above  the  Civil  Law, 
our  law-makers  have  not  failed  to  make  use  of  the  rules  and  maxims  of  the 
Civil  Law,  so  far  as  they  have  commended  themselves  to  good  sense  and 
good  morals  and  have  met  the  exigencies  of  the  common  weal.  In  framing 
our  law  as  to  crimes  and  criminal  procedure,  humanity  and  wisdom  were  their 
guides.  The  legislature  and  the  courts  united  in  the  endeavor  to  perfect  . 
system  by  which  the  community  would  be  protected,  and  the  individual,  wdien 
charged  with  crime,  be  heard  before  being  condemned ;  and  they  avoided  the 
infliction  of  punishments  so  severe  as  to  beget  sympathy  for  the  accused  rather 
than  for  the  accuser.  Thus  California  has  no  share  in  the  reproach  of  the  fero- 
cious system  of  the  English  Criminal  Law — a  system  which  fully  deserved 
the  denunciation  of  that  great  jurist,  Edward  Livingston,  styled  by  Sir  Henry 
Maine,  "the  first  legal  genius  of  modern  times.''  After  enumerating"  some  of 
the  shocking  instances  of  the  savagery  of  the  English  law,  he  says :  "The 
statute  gave  the  text,  and  the  tribunals  wrote  the  commentary  in  letters  of 
blood,  and  extended  its  penalties  l^x'  the  creation  of  constructive  offenses.  The 
vague  and  sometimes  unintelligible  language,  employed  in  the  penal  statutes, 
and  the  discordant  opinions  of  elementary  writers,  gave  a  color  of  necessity  to 
this  assumption  of  power;  and  the  English  people  have  sulimitted  to  the  legis- 
lation of  the  courts,  and  seen  their  fellow  subjects  hanged  for  constructive 
felonies,  quartered  for  constructive  treason,  and  roasted  alive  for  constructive 
heresies,  with  a  patience  which  would  be  astonishing,  even  if  their  written  laws 
had  sanctioned  the  butchery." 

The  concluding  words  of  this  passage  point  to  the  wisdom  of  a  code  which 
enumerates  and  defines  all  criminal  offenses,  and  leaves  no  shoreless  sea  ot 
so-called  "common  law  crimes,"  in  which  to  submerge  the  citizen,  by  the 
exercise  of  judicial  discretion — or  indiscretion.  In  codification  of  the  laws, 
as  well  as  in  other  respects,  the  people  of  California  may  claim  enrollment  with 
the  pioneers. 

Those  in  our  state  who  have  labored  in  this  field  of  human  endeavor  for 
the  betterment  of  our  law  and  its  administration,  though  they  may  not  rank 
in  fame  with  such  law  reformers  as  Bentham.  Austin.  Romilly.  Bethel,  and 

Field,  deserve  well  of  their  fellow-men. 

—HENRY  H.  REID. 
San  Francisco.  Cal. 


A  REVIEW  OF 
MILITARY-CIVIL 
GOVERNMENT 
^^^    1846-50    ^^J^ 


ulb  'Jjb  (^  (^  (^  ^  ^  qEs  ^  ^ 


HISTORY  of  the 
BENCH  and  BAR 
of  CALIFORNIA 


REVIEW  of  MILITARY- CIVIL 
GOVERNMENT—  \  846  -  50 


The  frame  and  working  machinery  of  a  modern  civilized  state,  compose 
a  complex  and  subtle  institution,  evincing  the  highest  social  invention;  and 
It  is  also  the  most  important  institution,  for  it  involves  the  safety^  happiness 
and  elevation  of  mankind. 

This  is  especially  so  with  a  republican  state,  as  it  is  devised  and  constructed 
by  its  framers,  for  the  intended  use  and  benefit  of  themselves  and  their  chil- 
dren and  successors  forever. 

In  considering  the  subject  indicated  in  the  title  of  the  present  paper,  that  is, 
the  civil  government  of  California  from  1846  to  1850,  carried  on  by  the  peo- 
ple, under  such  laws  as  there  were  at  the  time,  and  yet  within  the  control  of  the 
chief  military  head  of  the  land  forces  here,  it  seems  proper  preliminarily,  to 
.show  the  condition  of  the  country  and  people,  that  we  may  better  understand 
the  situation  to  which  such  authority  applied — a  period  beginning  with  July 
7th,  1846,  and  ending  with  the  year  1849.  '^h^  main  facts  and  causes  will  be 
noticed,  which  preceded  and  tended  to  shape  the  government  of  California 
from  Jul}',  1846,  to  1850,  with  references  to  some  of  the  actors  in  the  scene. 
The  acquisition  of  California  finally  came  by  formal  cession  in  our  treaty  with 
Mexico,  concluded  in  May,  1848;  but  it  was  the  result  of  the  war  with  that 
nation,  which  was  brought  on  by  various  causes,  motives  and  pretexts. 

California  stands  unique  in  the  history  of  political  government,  as  an 
instance  where  the  whole  people,  not  entirely  homogeneous,  of  an  unorgan- 
ized territory,  of  their  own  free  will,  by  the  light  of  their  own  wisdom,  organ- 
ized and  put  into  successful  and  permanent  operation,  in  a  peaceful  and  orderly 
manner,  at  the  close  of  the  year  1849,  a  great  and  prosperous  State,  embracing 
seven  hundred  miles  of  frontage  on  the  Pacific  ocean,  with  a  sparse  popula- 
tion, variously  estimated  at  from  175,000  to  200,000.  chiefly  of  the  Anglo- 
Saxon  type,  but  including  representatives  from  almost  every  part  of  the  globe. 

It  was  a  time  of  profound  peace,  and  most  of  the  people  had  arrived  since 
the  discovery  of  the  marvelously  rich  gold  mines  shortly  before,  which  had 
electrified  the  commerce  of  the  world.     The  great  majority  had  no  settled 


4  History  of  the  Bench  and  Bar  of  California. 

intention  of  making  this  their  permanent  place  of  residence ;  this  region  had 
lately  passed  from  the  domain  of  Mexico  to  that  of  the  United  States. 

The  wonderfnl  productiveness  of  the  soil,  in  greatest  variety,  of  the  most 
valued  fruits  of  the  earth,  for  the  comfort  and  support  of  mankind,  seemed 
until  some  time  after  the  year  1849,  to  have  been  almost  unnoticed.  Those 
substantial  things,  of  which  the  State  at  present  is  so  proud,  attracted  little 
attention  until  after  the  gold  excitement  began  to  decline. 

Prior  to  1846,  the  Mexican  government  of  Upper  California,  consisted  of 
the  departmental  assembly,  with  the  Governor  as  chief  executive  of  the  depart- 
ment. Its  sessions  were  held  at  Monterey,  the  capital.  The  various  other 
officers  were  mainly  Judges  of  the  Court  of  First  Instance,  the  prefects,  sub- 
prefects,  alcaldes  and  justices  of  the  peace. 

The  simple  habits  of  the  thinly  scattered  population  required  very  little 
legislation;  the  acts  of  all  officers  were  generally  subject  to  the  revisory  power 
of  the  Governor  and  assembly,  whose  proceedings  were  in  many  respects  sub- 
ject to  the  approval  of  the  Mexican  congress ;  all  this  was  at  once  suspended 
when  our  forces  took  possession  of  the  country.  There  remained  no  settled 
or  well-defined  form  of  government  or  system  of  legislation,  or  laws,  or  courts 
or  magistrates. 

The  revenue  laws  and  the  postoffice  laws  were  tardily  extended  by  Act 
of  Congress  to  California,  in  1849,  ^"<^1  the  corresponding  officers  were 
appointed  to  and  took  their  respective  places  in  the  autumn  of  1849,  i^^  several 
of  the  large  towns;  prior  to  which  time  the  import  duties  had  been  collected 
by  officers  appointed  by,  and  under  direction  of,  our  military  Governors.  Of 
tiie  officers 'of  the  regular  army  present,  as  a  rule,  the  senior  in  rank  was 
the  acting  Governor  in  civil  affairs ;  and  he  was  the  ultimate  authority  in  all 
local  disputes,  though  his  action  was  seldom  invoked  or  exercised ;  all  ques- 
tions referred  to  him  from  alcaldes  or  municipalities  were  promptly  disposed 
of.  with  reasons  briefly  stated,  indicating  a  clear  understanding  and  regard 
for  justice  and  good  order.  In  other  cases  the  judgments  in  the  Alcaldes' 
Courts  were  reversed  ;  with  a  reservation,  in  cases  involving  real  property, 
that  the  decision  was  without  prejudice  to  review  when  the  courts  should  be 
finally  established. 

Some  of  the  decisions  of  the  Governors  sent  down  to  the  alcalde,  contain 
the  suggestion  that  the  judgment  would  be  duly  enforced,  if  necessary.  That 
was  final  :  no  time  or  money  was  wasted  in  further  contention. 

Several  of  our  warships  lingered  about  the  coast,  with  little  to  do,  and 
their  presence  was  almost  unfelt.  Not  the  slightest  apprehension  or  incon- 
venience was  suffered  from  the  military  or  naval  officers  or  men,  but  on  the 
contrary,  where  their  presence  was  felt  at  all,  it  was  in  the  way  of  the  agree- 
able society  of  those  officers  and  the  pleasant  sense  of  their  protection,  should 
that  become  necessary. 

In  the  meantime,  after  1848,  the  three  thousand  miles  of  unbroken  wilder- 


History  of  the  BencJi  and  Bar  of  California.  5 

ness  between  the  "States"  on  the  East,  and  California  on  the  West,  was  marked 
by  ahnost  continuous  caravans  of  immigration  into  the  gold  fields;  and  by  sea, 
"around  the  Horn,"  and  from  every  inhabited  quarter  of  the  globe;  by  steam 
and  sail  and  land,  the  Argonauts  were  eagerly  hastening  to  this  Colchis  of  their 
hopes.  ]\Ierchantmen,  from  our  Atlantic  ports,  from  Europe,  from  all  the 
islands  of  the  Pacific,  and  from  China,  came  laden  with  passengers  and  goods, 
including  miners'  supplies,  things  of  utility,  and  also  with  articles  the  most 
costly  and  superb,  to  please  the  fancy  and  satisfy  the  appetite;  and  especially 
came  by  clipper-ships  from  China,  cargoes  of  silks  and  novelties,  which  latter, 
for  a  time,  were  in  great  demand  as  "presents  to  send  home" ;  for  the  w^ord  had 
gone  abroad,  that  gold  w-as  in  plenty  and  that  things  brought  fabulous  prices. 
Manv  articles  were  new  to  us — toys  as  it  were,  with  which  we  were  not 
familiar — from  regions  of  the  globe,  with  the  geography  of  which  we  knew 
but  little — of  whose  people  and  their  domestic  habits,  and  products,  we  knew 
less;  besides  all  this,  the  extreme  scarcity  of  money,  that  for  years  had 
preceded  the  times  of  which  we  are  now  speaking,  having  suddenly  changed 
to  affl'uence,  it  gave  the  new  settlers  the  pleasurable  opportunity  of  accom- 
panying their  "letter  home"  wdth  something  beautiful,  costly,  new — to  family, 
sweetheart  or  friend.  It  W'as  at  first  considered  quite  venturesome  and  even 
heroic,  for  strong  young  men  to  start  for  this  strange  and  unexplored  region ; 
and  as  for  women  to  come,  that  w-as  generally  out  of  the  question ;  so  that 
in  1848  and  1849,  '^  woman  among  miners  w^as  a  very  rare  and  delightful 
object  of  attention. 

MORAL    EFFECTS    OF   IMMIGRATION. 

The  trials,  dangers  and  sufferings  by  sea  and  by  land,  bravely  sustained 
and  patiently  endured  by  the  early  immigrants ;  the  sympathy,  kindness,  assist- 
ance and  generosity,  lent  by  the  stronger  to  the  weaker,  ever  gratefully 
received,  were  not  without  their  ennobling  effect  in  developing  the  better 
nature  of  them  all.  Such  a  schooling,  such  a  chastening  of  the  minds  and 
hearts  of  that  great  concourse  on  their  long,  toilsome  and  perilous  journey 
to  this  promised  land,  have  not  been  lost;  but  have  given  a  quickening  and 
lasting  impulse  to  the  evolution  of  the  race.  Was  there  not  visible,  some  of 
its  first  fruits  in  the  manhood  and  generosity  of  these  people  here,  whether  in 
mart  or  mine,  in  the  golden  years  of  the  fifties? 

SUTTER,  N'AEEEJO.  COOPER  AND  EARKIN. 

Amongst  the  elements  that  tended  to  create  and  foster  the  friendly  dispo- 
sition of  the  Mexican  inhabitants  of  California  towards  the  United  States, 
in  preference  to  other  nations,  there  are  several  men  whose  character,  conduct 
and  influence,  seem  worthy  of  special  mention. 

Captain  John  A.  Sutter,  a  German-Swiss,  of  culture  and  military  educa- 
tion, was  a  local  magnate  in  his  fort  on  the  American  river,  near  the  site  of  the 


6  History  of  the  Bench  and  Bar  of  California. 

present  Sacramento  city.  Having  a  grant  from  the  Mexican  government  of 
eleven  leagues  of  land,  with  the  labor  of  Indians  whom  he  taught  to  work  for  a 
better  subsistence  than  their  native  habits  could  supply,  and  with  the  help  of 
superior  employes,  all  well  armed,  Sutter  kept  up  a  sort  of  military  estab- 
lishment at  "the  Fort" ;  he  had  herds  of  horses  and  cattle,  with  the  freedom  of 
unlimited  pasture,  and  he  raised  large  quantities  of  wheat  and  "threshed  it 
easily  by  turning  into  a  spacious  corral  an  hundred  or  so  of  horses  upon  the 
wheat  in  the  straw  already  piled  as  higii  as  the  horses'  l)acks,"  (as  General 
Bidwell  described  it).  The  horses  were  driven  around  violently,  the  grain 
quickly  threshed  out  from  the  straw,  but  the  much  greater  difficulty  remained, 
to  slowly  winnow  out  the  chaff,  in  those  calm,  sultry  days,  without  our  modern 
fanning  mills. 

With  his  wheat  and  cattle  and  horses  galore.  Captain  Sutter  was  ever  most 
hospitable  and  generous  to  all  who  came ;  and  they  were  not  a  few.  History 
and  tradition  tell  of  his  benevolence  to  the  exhausted  immigrants  arriving; 
and  of  his  sending  supplies  and  succor  to  meet  others  on  the  way.  too  much 
reduced  in  strength  and  food  to  complete  their  journey. 

Captain  John  Baptist  Roger  Cooper  is  another  who  should  be  gratefully 
remembered  in  this  relation.  He  was  a  native  of  Alderney  Island.  England, 
whence  as  a  boy,  he  came  with  his  widow^ed  mother  to  Boston,  where  he  grew 
up  and  became  a  shipmaster,  and  as  such  he  brought  his  vessel,  the  Ro^•er, 
from  Boston  to  Monterey  in  1823,  with  a  cargo  of  merchandise. 

He  sold  his  ship  to  Luis  Arguello,  the  Governor  of  California,  in  whose 
service  he  commanded  the  Rover  three  years,  on  voyages  to  the  ports  of  the 
South  x\merican  coast,  to  the  Islands,  and  to  China,  from  his  home  port. 
Monterey;  and  finally  he  settled  and  became  an  extensive  land-owner  about 
Monterey  and  elsewhere  in  the  State. 

On  August  24,  1827,  in  the  chapel  of  the  Presidio  of  Monterey,  as  the 
record  reads,  Captain  Cooper  married  Encarnacion  Vallejo,  sister  of  the  late 
General  Marino  G.  Vallejo.  then  a  young  military  officer  of  much  local  influ- 
ence. Vallejo's  name,  as  that  of  one  who  rendered  distinguished  services  in 
early  times  to  his  own  people,  and  later  to  ours,  is  recorded  in  letters  of  bronze 
on  monumental  granite  in  the  City  Hall  Place.  San  Francisco. 

The  writer,  now,  by  way  of  episode,  may  be  permitted  to  record  the  fact 
that  he  has  the  honor  of  a  personal  acquaintance  with  Mrs.  Cooper,  the  lady 
above  named,  his  near  neig"hbor.  She  still  retains  all  her  faculties,  now  above 
the  age  of  four  score  and  ten,  and  in  the  daily  enjoyment  of  the  converse  and 
reverence  of  a  large  circle  of  her  children  and  friends. 

Thomas  O.  Larkin,  whose  name  stands  conspicuous  in  history  as  having 
rendered  eminent  services  to  the  United  States  in  the  acquisition  of  California, 
was  a  half-brother  of  Captain  Cooper  above  mentioned.  They  were  sons  of 
the  same  mother,  who  came  to  Boston  a  widow,  bringing  her  young  son,  John, 
as  before  related.  By  a  second  marriage,  she  became  the  mother  of  Thomas  O. 
Larkin  in  Massachusetts.     When  a  young  man,  Mr.  Larkin  came  from  Boston 


History  of  the  Bench  and  Bar  of  California.  7 

to  California,  in  1832,  and  joined  his  prosperous  older  brother  at  Monterey. 
In  1844,  Thomas  became  United  States  consul,  accredited  to  that  then  Mexican 
port,  where  he  so  continued,  down  to  the  change  of  flags. 

Cooper  and  Larkin  were  ever  in  favor  with  the  Californians;  and  being 
also  allied  to  the  influential  family  of  the  Vallejos  and  others  of  their  class, 
we  can  easily  understand  how  it  helped  to  create  a  friendly  feeling,  with  some 
of  the  people  at  least,  in  favor  of  the  Americans.  We  may  well  suppose 
that  the  spirit  of  freedom  imbibed  by  those  brothers,  under  the  Stars  and 
Stripes,  while  boys  in  Boston,  was  later  felt  for  good  in  their  adopted  home 
in  California. 

TIIK   FIRST   CONSTITUTION   AND  ITS   FRAMERS. 

Prior  to  the  sudden  influx  of  people,  on  hearing  of  the  gold  discovery  of 
January  24th,  1848,  (which  was  shortly  before  the  treaty  of  peace,  and  while 
our  army  was  holding  the  City  of  Mexico  under  the  armistice),  the  meager 
population  of  this  region  was  in  a  few  small  towns  and  at  the  missions,  and 
on  the  cattle  ranches  at  remote  distances  from  each  other.  It  was  in  the 
autumn  of  1849  ^^^^  ^^e  constitution  was  adopted  by  a  vote  of  the  people, 
including  the  latest  comers,  with  but  little,  if  any,  restriction  on  the  franchise. 
The  framing  and  adoption  of  that  instrument  came  of  the  people's  own  motion 
— of  their  own  free  will,  without  the  slightest  dictation  from  Federal  power, 
as  to  what  it  should  contain.  The  idea  of  State  organization,  direct,  instead 
of  the  usual  territorial  probation,  certainly  had  the  tacit  consent  and  encour- 
agement of  the  executive  of  two  administrations,  viz..  President  Polk  and 
President  Taylor  successively.  This  idea  most  naturally  was  imparted  by 
the  executive  to  immediate  subordinates,  though  no  sign  of  dictation  to  that 
end  is  visible  of  record. 

The  substantial  features  of  that  constitution,  remain  to  this  day,  though 
it  has  been  renewed  and  changed  in  some  particulars.  Under  it  the  people 
have  continued  in  peace,  prosperity  and  happiness.  That  work  was  mainly 
the  product  of  the  American  mind.  Its  chief  promoters  were  lately  from 
"the  States" — there  were  also  a  number  of  the  leading  native  Californians  in 
the  convention,  as  also  in  the  legislatures  following.  The  members  of  that 
constitutional  convention  were  imbued  with  a  love  of  country  and  liberty ; 
with  an  ardent  devotion  to  the  spirit  of  the  Declaration  of  Independence,  and 
of  the  Federal  Constitution.  California,  although  newly  acquired  territory, 
was  confessedly  as  much  a  part  of  American  soil  as  any  of  the  original  states 
that  first  struck  for  liberty;  and  there  was  no  doubt  in  the  minds  of  the  framers 
of  that  instrument,  but  that  the  State  was  directly  to  become  a  member  of  the 
Union.  Those  men  were  eminently  select  and  representative,  including 
miners,  lawyers  and  physicians,  with  a  variety  of  other  callings,  some  of  whom 
already  had  experience  in  politics  and  affairs  of  State.  The  constitution  they 
framed  manifests  their  clear  understanding  of  the  dignity  of  the  work  com- 
mitted to  their  hands. 


8  History  of  the  Bench  and  Bar  of  California. 

The  native  Californians  in  the  convention,  naturally  were  anxious  lest 
the  new-comers  might  by  invidious  legislation  in  the  matter  of  taxation,  dis- 
criminate to  the  disadvantage  or  ruin  of  the  native  land-holders,  as,  for 
instance,  so  as  to  make  their  large  unproductive  ranches  pay  most  of  the  taxes. 
To  allay  their  fears  in  this,  besides  all  other  provisions  for  the  equal  protection 
of  persons  and  property,  it  was  especially  provided  in  the  constitution,  that  all 
property  should  be  taxed — only  excepting  State  property — according  to  value. 
That  its  value  should  be  ascertained  by  assessors,  elected  by  the  voters  of  the 
district  wherein  the  property  is  situated;  thus  securing  equality  and  fairness 
in  taxation,  in  so  far  as  by  legislation  it  was  possible.  This  gave  satisfaction 
and  a  sense  of  security  and  contentment  to  the  native  Californians  especially, 
thus  eliciting  their  co-operation  and  friendship  in  the  affairs  of  state. 

A  full  and  fair  proportion  of  the  native  Californians,  consisting  of  their 
most  trusted  and  experienced  men,  were  elected  members  of  the  first  and 
next  succeeding  legislatures,  all  of  whom  were  the  most  loyal  and  cheerful 
supporters  of  the  State  government,  and  enjoyed  a  full  share  of  its  legislative, 
judicial,  and  executive  offices  and  honors,  in  both  State  and  county  govern- 
ment. 

The  framers  of  our  first  constitution  did  not  prepare  simply  a  sketcli  or 
outline  of  the  proposed  State  government,  to  send  to  Congress,  to  be  neg- 
lected or  carped  at,  as  did  New  Mexico  about  the  same  time — while  New 
Mexico  to  this  day  remains  a  territory  merely;  but  they  completely  framed 
the  fundamental  law,  providing  for  a  fully  equipped  State,  to  go  into  imme- 
diate operation,  to  be  admitted  into  the  Union  or  not,  as  Congress  might  deter- 
mine at  leisure;  but  in  the  meantime  they  organized  a  State,  and  put  it  to 
work  fn^m  its  inception.  It  became  such,  and  instantly  upon  the  meeting  of 
the  Governor,  senate  and  assembly,  and  being  sworn  into  office,  the  military 
Governor,  General  Riley,  in  December,  1849,  resigned  all  claims  to  civil 
authority.  Since  that  event,  California  has  exercised  completely  all  the  func- 
tions of  a  State,  though  it  was  not  formally  admitted  into  the  Union  by  Act 
of  Congress  until  September  9th,  1850. 

FIRST  COLLECTOR  OF   CUSTOMS  AT   S.\N    FRANCISCO. 

Colonel  James  Collier  arrived  at  San  Francisco  (via  San  Diego)  on 
November  10,  1849,  ^""^  having  been  appointed  collector  for  this  port,  in  Ajiril, 
1849.  Two  days  after  taking  possession  of  the  office,  he  makes  his  first 
report  of  date  November  13.  1849,  to  Mr.  Meredith,  ySecretary  of  the  Treas- 
ury, wherein  he  speaks  of  "having  suffered  much  of  hardship,  of  privation, 
and  toil,  and  encountered  no  little  peril."  he  adds:  'AVe  were  compelled  for 
several  days  in  succession  to  fight  our  way  through  hostile  bands  of  Indians, 
with  but  one  man  wounded  .  .  .  both  bones  of  his  arm  broken." 
In  crossing  the  Colorado,  four  persons  were  drowmed ;  one  of  the  number  was 
Captain  Thorne,  of  New  York,  who  was  in  command  of  the  dragoons." 


History  of  the  Bench  and  Bar  of  California.  9 

Tliis  report  describes  the  frightful  prices  of  labor,  provisions  and  rents  of 
tenements  in  San  Francisco,  saying  "flour  is  this  day  selling  for  $40  per  barrel 
and  pork  at  $60,  boarding  $5  a  day,  without  rooms  or  lodging;  a  small  room, 
barely  sufficient  to  contain  a  single  bed,  rents  for  $150  a  month,  and  every 
article  of  food  at  a  like  rate.  "I  am  perfectly  astonished  at  the  amount  of 
business  in  this  office.  I  took  possession  of  it  yesterday.  The  amount  of 
tonnage  on  the  loth  inst.  (Nov.  10,  '49),  in  port  was  120,317  tons;  of  which 
87.494  were  American,  and  32,823  were  foreign." 

These  figures  give  a  faint  idea  of  the  sudden  growth  of  shipping  caused  by 
the  gold  discovery  of  January  24,  1848;  they  also  indicate  the  presence  in  this 
port  at  that  time,  of  tonnage  equal  to  120  ships  of  a  thousand  tons  each.  The 
country  he  traversed  in  coming  seemed  to  him  of  little  value;  and  especially 
he  says :  "The  valley  of  the  Gila  is  utterly  worthless,  I  would  not  take  a  deed 
of  the  whole  country  tomorrow." 

The  rates  of  wages  in  San  Francisco,  which  he  specifies,  would  absorb 
a  large  share  of  the  current  revenue. 

In  this  letter  Colonel  Collier  says :  "You  are  doubtless  already  advised 
that  the  people  of  California,  in  convention,  have  adopted  a  constitution  of 
State  government,  and  the  election  for  governor  and  for  other  officers  is 
this  day  being  held." 

Previous  to  the  coming  of  Colonel   Collier,  the  import  duties  had  been 
collected  by  officers  under  appointment  and  direction  of  the  military  governors. 
Of  the  local  merchants,  seventeen  of  the  heaviest  firms  presented  the  new- 
collector  with  a  most  cordial  letter  of  congratulations  upon  his  safe  arrival  at 
this  port. 

Prior  to  the  time  of  the  events  we  are  now  reviewing,  some  fifty-four 
years  ago,  there  were  no  railroads,  no  telegraphs,  no  steamers,  no  roads  or 
known  ways  across  the  continent;  sailing  vessels  very  seldom  rounded  the 
Horn,  and  most  of  such  as  there  were,  came  as  "hide  droggers,"  gathering 
hides  and  tallow,  hoofs  and  horns  of  cattle,  paid  for  in  goods,  chiefly  from  our 
Atlantic  cities ;  ships'  voyages  being  very  long,  occupying  one  or  two  years. 
(See  Dana's  Two  Years  Before  the  Mast.) 

It  took  the  better  ])art  of  a  year  to  march  an  army  across  the  plains;  it  was 
practically  three  thousand  miles  of  wilderness,  beset  by  hostile  Indians,  with 
great  rivers  to  cross,  no  roads,  no  ferries,  no  boats,  no  bridges  and  no  base 
of  supplies. 

Colonel  ]\Iason  at  Monterey,  under  date  of  September  i8.  1847,  ^vl■iting  to 
Adjutant  General  Jones,  in  Washington,  says:  "It  must  be  remembered,  that 
it  ref|uires  now  six  months  to  send  a  letter  to  the  United  States,  and  as  long 
to  receive  an  answer;  and  again,  under  date  of  December  27th,  i8_i8.  Colonel 
Mason  writes  from  California  to  ihe  war  department,  saying.  "The  ship  Hunt- 
ress has  just  brought  latest  dates  of  .April  i8th" — eight  months. 

Colonel  Fremont  with  a  stafY  of  officers  and  scientists  and  a  few  soldiers. 


10  History  of  the  Bench  and  Bar  of  California. 

sent  out  by  our  government  on  his  exploring  expedition,  as  to  the  resources 
of  this  Western  slope,  was  moving  about  with  celerity,  between  Oregon  and 
Monterey,  with  an  eye  to  political  conditions.  This  had  excited  the  jealousy 
of  the  local  Mexican  authorities  as  to  what  was  his  business  here.  Some  Euro- 
pean powers  were  casting  wishful  eyes  to  the  acquisition  of  California,  then  in 
the  nominal  but  feeble  possession  of  Mexico.  Captain  Sutter,  wdiile  loyal  to 
Mexico,  saw  the  crisis  approaching,  and  felt  a  strong  preference  in  favor  of 
the  United  States,  above  all  others.  Thomas  O.  Larkin,  residing  at  Monterey, 
California,  was  United  States  consul  for  ]\Ionterey  from  1844,  and  later  became 
confidential  agent  and  correspondent  of  our  government.  Meantime.  Mr. 
Larkin,  together  with  Cooper.  Vallejo  and  others,  was  courting  the  respect 
and  friendship  of  the  most  enlightened  and  influential  residents  of  this  depart- 
ment, to  stand  in  with  us  in  preference  to  all  others,  in  the  event  of  a  change 
of  rulers,  which  began  to  appear  probable.  The  actual  commencement  of  war 
with  Mexico  was  not  heard  of  here  till  long  after  it  had  actually  begun. 

Early  in  March,  1846,  Colonel  Fremont  was  ordered  peremptorily  by 
General  Jose  Castro  to  leave  California  immediately,  before  actual  hostilities 
on  the  Atlantic  side  had  commenced.  Fremont  at  first  disregarded  the  order 
to  depart ;  but  soon  after,  he  started  for  Oregon ;  was  overtaken  somewhere 
about  the  Klamath  Lakes  by  Alajor  Gillispie,  with  orders  from  Washington 
to  return  to  support  Commodore  Sloat  and  his  navy  in  the  capture  and  pos- 
session of  Monterey.  Fremont  did  so.  He  got  back  to  Sacramento  valley 
May  29,  1846.  What  those  orders  were  has  never  particularly  become  public. 
They  are  to  be  understood  only  by  succeeding  events. 

In  the  years  1846-7-8,  occurred  a  number  of  momentous  affairs,  which 
largely  affected  the  destiny  of  these  westerly  possessions  of  our  nation.  The 
chief  of  these  were :  The  first  battles  of  the  war :  those  of  Palo  Alto,  Mon- 
terey, Buena  Vista,  and  others  of  lesser  note,  under  General  Taylor,  and  the 
capture  of  Vera  Cruz,  with  its  so-called  impregnable  fortress,  San  Juan  de 
Ulloa ;  the  march  to  the  City  of  IMexico  and  its  capture,  after  the  fearful  battles 
of  Molino  del  Rey  and  Chapultepec ;  and  the  surrender  of  the  city  to  General 
Scott  in  February,  1848.  Thence  the  city  was  held  in  our  quiet  possession 
pending  the  armistice  until  the  final  exchange  of  the  treaty  of  peace  in  May, 
1848,  when  our  army  evacuated  the  city,  while  saluting  the  American  and 
Mexican  flags. 

THE  GOLD  DISCOVERY. 

Perhaps  the  most  important  local  event  which  distinguished  those  years, 
was  the  discovery  of  gold  in  the  mill  race  of  Captain  Sutter's  sawmill,  as  it 
was  about  being  finished,  under  the  direction  of  his  foreman,  James  W.  Mar- 
shall, on  the  North  Fork  of  the  American  river,  at  the  present  town  of  Coloma, 
El  Dorado  county.  California.     The  date  of  that  discovery  is  fixed  as  of  Jan- 


History  of  tJic  Bench  and  Bar  of  California.  1 1 

uary  24th,  1848,  our  army  still  being  in  possession  of  the  City  of  Mexico. 
That  discovery  was  immediately  followed  by  the  spread  of  placer  and  river- 
bar  mining,  far  and  wide  throughout  the  mineral  region,  with  almost  electrical 
rapidity.  The  towns  and  settlements  of  California  were  nearly  depopulated 
of  their  male  inhabitants;  the  sailors  deserted  the  ships,  and  soldiers  their 
ranks,  all  flocking  to  the  mines,  and  prices  of  labor,  and  of  all  supplies  rose  to 
incredible  figures, — all  these  are  matters  of  popular  history,  merely  adverted  to 
here  as  features  of  the  picture. 

James  K.  Polk  was  President  of  the  United  States  from  March  4th,  1845, 
till  March  4th,  1849;  ^^^  of  his  cabinet  James  Buchanan  was  Secretary  of 
State,  William  L.  Marcy  was  Secretary  of  War,  and  Geo.  Bancroft  Secretary 
of  the  Navy. 

The  great  mass  of  correspondence  in  the  conduct  of  the  Mexican  War, 
relating  especially  to  California,  was  under  signature  of  that  very  masterly 
statesman,  Mr.  Marcy,  as  Secretary  of  War.  To  his  wisdom  is  largely  due 
the  policy  which  guided  that  important  state  afifair,  from  its  beginning  till  the 
final  treaty  of  peace.  This  seems  manifest  from  the  public  documents,  from 
first  to  last,  of  that  war,  called  out  by  the  resolution  of  the  House  of  Repre- 
sentatives, passed  December  31st,  1849.  This  resulted  in  developing  in  much 
detail,  documents  embracing  all  the  correspondence,  orders,  etc.,  emanating 
from  the  heads  of  departments,  which  are  appended  to  the  answer  of  the  Pres- 
ident to  that  resolution,  so  far  as  California  is  concerned ;  covering  the  years 
1846  to  1850  inclusive. 

RESOLUTION   OF  DKCEMBER  3I,    1849. 

President  Polk  and  his  cabinet  had  passed  out  of  office  at  the  date  of  that 
resolution.  The  inquiry  was  addressed  to  the  then  President  of  the  United 
States,  General  Zachary  Taylor.  Its  scope  was  so  extensive  that  the  answer 
necessarily  eml^raced  many  documents,  making  nearly  one  thousand  pages. 
The  answer  was  under  date  of  January  21st,  1850.  The  questions  were  of 
great  significance,  when  we  consider  them  in  the  light  of  the  fierce  political 
strife  of  the  times,  and  the  matters  of  national  history  which  that  resolution 
caused  to  be  disclosed — direct  from  the  e.xecutixe  archi^'es — and  it  was 
"ordered  that  10,000  copies  extra  be  printed." 

The  resolution  of  the  House  of  Representatives  of  the  above  date,  and 
just  alluded  to,  is  of  great  significance,  in  view  of  the  current  events  of  those 
daws,  touching  the  most  exciting  (|ucslion  of  the  times,  pending  lictwcon  prop- 
agandists of  slavery  on  the  one  hand  and  opponents  thereof  on  the  other,  which 
gave  rise  to  acrimonious  debates  and  corresponding  jealousies  of  the  respective 
sides  towards  tlieir  adversaries.  The  three  successive  Presidents,  Tyler,  Polk 
and  Taylor  having  been  elected  from  the  slave  states,  were  naturally  supposed 
])}•  the  free  states,  to  be  in  sym])athy  with  the  ])ri)pagandists.     Ha\-ing  this  C(^n- 


12  History  of  the  Bench  and  Bar  of  California. 

dition  of  public  sentiment  in  view,  we  can  better  understand  the  spirit  and  full 
inside  meaning  of  the  resolution  of  inquiry — requesting  the  President  of  the 
United  States  to  communicate  to  the  House  of  Representatives  as  early  as 
he  conveniently  could,  as  follows:  "Whether  since  the  last  session  of  Con- 
gress, any  person  has  been  by  him  appointed  either  a  civil  or  military  Governor 
of  California  and  New  Mexico;  if  any  military  or  civil  Governor  has  been 
appointed  there,  and  their  compensation ;  if  a  military  and  civil  Governor  has 
been  united  in  one  person,  whether  any  additional  compensation  has  been  given 
for  said  duties  and  the  amount  of  the  same.  Also  that  he  be  requested  to 
communicate  to  this  House  whether  any  agent  or  agents,  or  other  persons,  have 
been  appointed  by  the  President  or  any  of  the  departments  of  this  government, 
and  sent  to  California  or  New  Mexico,  or  recognized  in  said  territories  by 
this  government,  authorized  to  organize  the  people  of  California  or  New 
Mexico  into  a  government,  or  to  aid  or  advise  them  in  such  organization ;  or 
whether  such  agent,  civil  or  military  Governor,  was  instructed  or  directed  to 
aid,  preside  over,  or  be  present  at  the  assembly  of  a  body  of  persons  called  a 
convention,  in  California,  to  control,  aid,  advise,  direct,  or  participate  in  any 
manner  in  the  deliberations  of  that  body  of  persons ;  if  any,  the  names  of  such 
agent  or  agents  and  their  compensation.  Also,  tliat  the  President  be  requested  to 
inform  the  House  whether  any  advices  had  been  given  the  people  of  California 
or  New  Mexico,  as  to  the  formation  of  a  government  for  themselves,  and  if 
so,  what  agents  were  sent,  and  their  compensation,  and  to  communicate  to  the 
House  all  the  instructions  to  such  Governor,  civil  or  military,  or  to  any  officers 
of  the  army,  or  to  any  other  persons  who  may  have  been  sent,  and  all  the 
correspondence,  proclamations,  or  appointment  of  elections,  and  as  to  the 
formation  of  a  government  for  said  territories  by  the  inhabitants,  etc.  "Also, 
all  similar  instructions  that  were  given  to  similar  officers  or  agents  by  the  late 
executive,''   (meaning  President  Polk). 

The  resolution  became  significant  also,  in  that  it  brought  forth  into  open 
public  recorded  history,  all  the  documents,  orders  and  correspondence  called 
for ;  they  are  annexed  to  the  President's  answer,  forming  a  fund  of  accurate 
and  authentic  history  of  the  founding  of  a  new  State  out  of  territorv  lately 
acquired  from  a  people  of  other  type,  laws  and  language  than  our  own — a 
history  of  unquestionable  authority. 

One  cannot  resist  an  expression  of  commendation  of  the  entire  propriety 
and  wisdom  of  conduct  which  distinguish  the  three  successive  Presidents, 
Tyler,  Polk  and  Taylor,  and  their  cabinets,  during  the  period  which  changed 
this  blessed  land  from  the  fading  power  of  Mexico,  into  the  more  prosperous 
and  enlightened  State  of  California  under  our  Nation's  banner. 

President  Taylor's  reply  to  the  resolution  of  inquiry  is  clear,  candid,  and 
fully  responsive;  frank,  and  characteristic  of  the  man  withal.  It  is  in  full  as 
follows: 


I 


History  of  the  Bench  and  Bar  of  California.  13 

PRESIDENT   ZACHARY    TAYLOR'S    RESPONSE   TO   THE   INQUIRIES   OF 
THE  HOUSE  OF  REPRESENTATIVES. 

To  the  House  of  Representatives  of  the  United  States : 

I  transmit  to  the  House  of  Representatives,  in  answer  to  a  resolution  of  that  body 
passed  on  the  31st  of  December  last,  the  accompanying  reports  of  heads  of  depart- 
ments, which  contain  all  the  official  information  in  the  possession  of  the  Executive 
asked  for  by  the  resolution. 

On  coming  into  office,  I  found  the  military  commandant  of  the  Department  of 
California  exercising  the  functions  of  civil  governor  in  that  territory;  and  left,  as  I 
was,  to  act  under  the  treaty  of  Guadalupe  Hidalgo,  without  the  aid  of  any  legislative, 
provision  establishing  a  government  in  that  Territory,  I  thought  it  best  not  ta 
disturb  that  arrangement,  made  under  my  predecessor,  imtil  congress  should  take 
some  action  on  that  subject.  I  therefore  did  not  interfere  with  the  powers  of  the- 
military  commandant,  who  continued  to  exercise  the  functions  of  civil  governor  as 
before ;  but  I  made  no  such  appointment,  conferred  no  such  authority,  and  have  al- 
lowed no  increased  compensation  to  the  commandant  for  his  services. 

With  a  view  to  the  faithful  execution  of  the  treaty,  so  far  as  lay  in  the  power  of 
the  Executive,  and  to  enable  congress  to  act.  at  the  present  session,  with  full  knowl- 
edge and  as  little  difficulty  as  possible,  on  all  matters  of  interest  in  these  territories, 
I  sent  the  Honorable  Thomas  Butler  King  as  bearer  of  dispatches  to  California,  and 
certain  officers  to  California  and  New  Mexico,  whose  duties  are  particularly  defined 
in  the  accompanying  letters  of  instruction  addressed  to  them  severally  by  the  proper 
departments. 

I  did  not  hesitate  to  express  to  the  people  of  those  territories  my  desire  that  each 
territory  should,  if  prepared  to  comply  with  the  requisitions  of  the  constitution  of  the 
United  States,  form  a  plan  of  state  constitution  and  submit  the  same  to  congress, 
with  a  prayer  for  admission  into  the  Union  as  a  state;  but  I  did  not  anticipate,  sug- 
gest or  authorize  the  establisment  of  any  such  government  without  the  assent  of 
congress ;  nor  did  I  authorize  any  government  agent  or  officer  to  interfere  with  or 
exercise  any  influence  or  control  over  the  election  of  delegates,  or  over  any  conven- 
tion, in  making  or  modifying  their  domestic  institutions  or  anj'  of  the  provisions  of 
their  proposed  constituton.  On  the  contrary,  the  instructions  given  by  my  orders 
were,  that  all  measures  of  domestic  policy  adopted  by  the  people  of  California  must 
originate  solely  with  themselves;  that  while  the  Executive  of  the  United  States  was 
desirous  to  protect  them  in  the  formation  of  any  government  republican  in  its  charac- 
ter, to  be,  at  the  proper  time,  submitted  to  congress,  yet  it  was  to  be  distinctly  under- 
stood that  the  plan  of  such  a  government  must,  at  the  same  time,  be  the  result  of  their 
own  deliberate  choice,  and  originate  with  themselves,  without  the  interference  of  the 
Executive. 

I  am  unable  to  give  any  information  as  to  laws  passed  by  any  supposed  govern- 
ment of  California,  or  of  any  census  taken  in  either  of  the  territories  menliimed  in 
the  resolution,  as  I  have  no  information  on  those  subjects. 

As  already  stated,  I  have  not  disturbed  llv*  arrangements  which  I  fmuid  had 
existed  under  my  predecessor. 

In  advising  an  early' application  by  the  people  of  these  territories  for  admission 
as  states,  I  was  actuated  principally  by  an  earnest  desire  to  afford  to  the  wisdom  and 
patriotism  of  congress  the  opportunity  of  avoiding  occasions  of  bitter  and  angry 
dissentions  among  the  people  of  the  United  States. 

Under  the  constitution,  every  state  has  the  right  of  establishing,  and.  from  time 
to  time,  altering  its  municipal  laws  and  domestic  institutions,  indeiiendently  of  every 
other  state  and  of  the  general  govermnent;  subject  only  to  the  prohibitions  and  guar- 
anties expressly  set  forth  in  the  constitution  of  the  United  States.  The  subjects  thus 
left  exclusively  to  the  respective  states  were  not  designated  or  expected  to  become 
topics  of  national  agitation.  Still,  under  the  constitution,  congress  has  power  to  make 
all  needful   rules  and  rcgulatinns  rcsjiecting  the  territories  of  the  United   States,  every 


14 


History  of  the  Bench  and  Bar  of  California. 


new  acquisition  of  territory  has  led  to  discussions  on  the  question  whether  the  system 
of  invohmtary  servitude  which  prevails  in  many  of  the  states  should  not  be  prohibited 
in  that  territory. 

The  periods  of  excitement  from  this  cause  which  have  heretofore  occurred  have 
been  safely  passed;  but  during  the  interval,  of  whatever  length,  which  may  elapse 
before  the  admission  of  the  territories  ceded  by  Mexico  as  states,  it  appears  probable 
that  similar  excitement  will  prevail  to  an  imdue  extent. 

Under  these  circumstances,  I  thought,  and  still  think,  that  it  was  my  duty  to 
endeavor  to  put  it  in  the  power  of  congress,  by  the  admission  of  California  and  New 
Mexico  as  states,  to  remove  all  occasion  for  the  unecessary  agitation  of  the  public 
mind. 

It  is  understood  that  the  people  of  the  western  part  of  California  have  formed  a 
plan  of  a  state  constitution,  and  will  soon  submit  the  same  to  the  judgment  of  con- 
gress, and  apply  for  admission  as  a  State.  This  course  on  their  part,  though  in  ac- 
cordance with,  was  not  adopted  exclusively  in  consequence  of  any  expression  of  my 
wishes,  inasmuch  as  measures  tending  to  this  end  had  been  promoted  by  the  officers 
sent  there  by  my  predecessor,  and  were  already  in  active  progress  of  execution  before 
any  communication  from  me  reached  California.  If  the  proposed  constitution  shall, 
when  submitted  to  congress,  be  found  to  be  in  compliance  wth  the  requirements  of  the 
constitution  of  the  United  States,  I  earnestly  recommend  that  it  may  receive  the  sanc- 
tion of  congress. 

The  part  of  California  not  included  in  the  proposed  State  of  that  name  is  believed 
to  be  uninhabited,  except  in  a  settlement  of  our  countrymen  in  the  vicinit}'  of  Salt 
Lake. 

A  claim  has  been  advanced  by  the  State  of  Texas  to  a  very  large  portion  of  the 
most  populous  district  of  the  territory  commonly  designated  by  the  name  of  New  Mex- 
ico. If  the  people  of  New  Mexico  had  formed  a  plan  of  state  government  for  that  terri- 
tory as  ceded  by  the  treaty  of  Guadalupe  Hidalgo,  and  had  been  admitted  by  congress 
as  a  state,  our  constitution  would  have  afforded  the  means  of  obtaining  an  adjustment 
of  the  question  of  boundary  with  Texas  by  a  judicial  decision.  At  present,  however, 
no  judicial  tribunal  has  the  power  of  deciding  that  question,  and  it  remains  for  con- 
gress to  devise  some  mode  for  its  adjustment.  Meanwhile,  I  submit  to  congress  the 
question  whether  it  would  be  expedient,  before  such  adjustment,  to  establish  a  ter- 
ritorial government,  which,  by  including  the  district  so  claimed,  would  practically 
decide  the  question  adversely  to  the  State  of  Texas,  or,  by  excluding  it,  would  decide 
it  in  her  favor.  In  my  opinion,  such  a  course  would  not  be  expedient,  especially  as 
the  people  of  this  territory  still  enjoy  the  benefit  and  protection  of  their  municipal 
laws,  originally  derived  from  Mexico,  and  have  a  military  force  stationed  there  to 
protect  them  against  the  Indians.  It  is  undoubtedly  true  that  the  property,  lives,  liber- 
ties, and  religion  of  the  people  of  New  Mexico  are  better  protected  than  they  ever 
were  before  the  treaty  of  cession. 

Should  congress,  when  California  shall  present  herself  for  incorporation  into  the 
Union,  annex  a  condition  to  her  admission  as  a  State  affecting  her  domestic  institu- 
tions, contrary  to  the  wishes  of  her  people,  and  even  compel  her,  temporarily,  to  com- 
ply with  it,  yet  the  State  could  change  her  constitution  at  any  time  after  admission, 
when  to  her  it  should  seem  expedient.  Any  attempt  to  deny  the  people  of  the  State 
the  right  of  self-government,  in  a  matter  which  peculiarly  affects  themselves,  will 
infallibly  be  regarded  by  them  as  an  invasion  of  their  rights;  and,  upon  the  principles 
laid  down  in  our  own  Declaration  of  Independence,  they  will  certainly  be  sustained 
by  the  great  mass  of  the  American  people.  To  assert  that  they  are  a  conquered  peo- 
ple, and  must,  as  a  State,  submit  to  the  will  of  their  conquerors  in  this  regard,  will 
meet  with  no  cordial  response  among  American  freemen.  Great  numbers  of  them 
are  native  citizens  of  the  United  States,  not  inferior  to  the  rest  of  our  countrymen  in 
intelligence  and  patriotism;  and  no  language  of  menace,  to  restrain  them  in  the  ex- 
ercise of  an  undoubted  right,  guaranteed  to  them  by  the  treaty  of  cession  itself,  shall 
■ever  be  uttered  by  me,  or  encouraged  and  sustained  by  persons  acting  under  my  au- 


History  of  the  Bench  and  Bar  of  California.  15 

thority.  It  is  to  be  expected  that,  in  the  residue  of  the  territory  ceded  to  us  by  Mexico, 
the  people  residing  there  will,  at  the  time  of  their  incorporation  into  the  Union  as  a 
State,  settle  all  questions  of  domestic  policy  to  suit  themselves.  No  material  incon- 
venience will  result  from  the  want,  for  a  short  period,  of  a  government  established 
by  congress  over  that  part  of  the  territory  which  lies  eastward  of  the  new  State  of 
California;  and  the  reasons  for  my  opinion  that  New  Mexico  will,  at  no  very  distant 
period,  ask  for  admission  into  the  Union,  are  founded  on  unofficial  information,  which 
I  suppose,  is  common  to  all  who  have  cared  to  make  inquiries  on  that  subject. 

Seeing,  then,  that  the  question  which  now  excites  such  painful  sensations  in  the 
country  will,  in  the  end,  certainly  be  settled*  by  the  silent  effect  of  causes  independent 
of  the  action  of  congress,  I  again  submit  to  your  wisdom  the  policy  recommended  in 
my  annual  message,  of  awaiting  the  salutary  operation  of  these  causes,  believing 
that  we  shall  thus  avoid  the  creation  of  geographical  parties,  and  secure  the  harmony 
of  feeling  so  necessary  to  the  beneficial  action  of  our  political  system.  Connected  as 
the  Union  is  with  the  remembrance  of  past  happiness,  the  sense  of  present  blessings, 
and  the  hope  of  future  peace  and  prosperity,  every  dictate  of  wisdom,  every  feeling  of 
duty,  and  every  emotion  of  patriotism,  tend  to  inspire  fidelity  and  devotion  to  it,  and 
admonish  us  cautiously  to  avoid  any  unnecessary  controversy  which  can  either  en- 
danger it  or  impair  its  strength,  the  chief  element  of  which  is  to  be  found  in  the 
regard  and  affection  of  the  people  for  each  other. 

Z.  TAYLOR. 

Washington  City,  D.  C,  January  21,  1850. 

Annexed  to  the  foregoing  letter  or  reply  of  the  President,  were  the  official 
reports  from  several  cabinet  officers,  including  those  from  the  Department 
of  State,  of  January  7,  1850,  John  M.  Clayton,  Secretary;  from  the  Treasury 
Department  of  January  21,  1850,  W.  M.  Meredith,  Secretary;  from  the  War 
Department,  of  January  18,  1850,  Geo.  W.  Crawford,  Secretary;  reporting 
documents  dated  May  14,  1846,  by  W.  L.  Marcy,  then  Secretary,  including 
copies  of  instructions  to  "Colonel  S.  W.  Kearny,  First  Regiment  of  Dragoons, 
or  officer  commanding  Fort  Leavenworth,''  and  other  papers. 

Those  are  peculiarly  interesting  and  instructive  documents,  as  they  disclose 
the  whole  plan,  from  the  beginning  of  preparation  for  the  invasion  of  New 
Mexico  and  California  by  the  land  forces,  to  meet  and  support  the  naval 
squadron  on  their  arrival  at  Monterey;  and  Colonel  S.  W.  Kearny  was  the 
confidential,  trusted  agent,  selected  by  the  government  to  carry  out  that  difficult 
undertaking. 

The  plan  embraced  the  task  of  increasing  the  strength  of  the  army  then 
under  command  of  Kearny  at  Fort  Leavenworth ;  of  marching  it  across  some 
three  thousand  miles  of  wild  and  almost  uninhabited  country  to  the  Pacific 
Coast;  crossing  mountains,  rivers  and  deserts;  of  subduing  and  holding 
en  route,  the  sparsely  settled  province  of  New  Mexico,  and  garrisoning  its 
capital,  Santa  Fe.  It  is  refreshing  to  observe  the  implicit  confidence  imposed 
by  Secretary  Marcy  in  Colonel  Kearny;  and  it  is  admirable  to  behold  how  per- 
fectly the  latter  executed  in  letter  and  spirit  the  orders  of  the  former ;  not  only 
to  take  and  hold  the  territory,  but  to  protect  the  inhaliitants  in  their  persons, 
property  and  religion. 

They  were  also  assured  of  the  early  opportunity  of  electing  their  own  State 
or  territorial  officers,  the  same  as  in  the  other  territories  of  the  United  States. 


16  History  of  the  Bench  and  Bar  of  California. 

It  required  the  time  of  several  weeks  to  communicate  between  the  War 
Department  at  Washington,  and  Colonel  Kearny,  who  was  supposed  to  be 
at  Fort  Leavenworth,  on  the  Missouri  River,  May  14,  1846,  at  the  opening 
of  the  correspondence  on  the  subject  of  the  contemplated  expedition. 

The  foregoing  resolution  of  the  House  of  Representatives,  and  the  Presi- 
dent's answer  thereto,  with  documents  annexed,  were  accordingly  printed.  All 
these  were  products  of  the  great  slavery  agitation ;  the  questions  were,  whether 
slavery  should  be  propagated  or  extinguished;  and  whether  it  should  be  con- 
fined within  its  then  existing  limits,  or  extended  into  new  states  and  terri- 
tories, under  all  the  legal  and  constitutional  protection  of  the  National  govern- 
ment, as  sacredly  and  efficiently  as  any  property  or  personal  rights  of  citizens 
are  protected ;  and  were  the  judicial  magistrates  and  ministerial  officers  in  the 
free  states  legally  Ijound  to  lend  their  services  in  the  arrest  and  restitution  of 
fugitive  slaves  to  their  masters,  under  all  the  pains  and  penalties  of  the  Fugi- 
tive Slave  Law,  however  much  their  own  private  opinion  or  conscience  might 
revolt  at  such,  to  them,  humiliating  service ;  and  should  no  state  be  admitted 
as  a  free  state,  or  unless  at  least  coupled  with  a  slave  state,  to  keep  up  the 
"balance  of  power"  in  the  Senate,  which  w^as  then  equally  divided  on  the 
slavery  question — and  several  other  questions  of  a  kindred  nature — consti- 
tuting "the  question  which  now  excites  such  painful  sensations  in  our  country," 
as  President  Taylor  just  above  expresses  it. 

The  free  states  had  opposed  the  annexation  of  Texas,  while  it  was  an  inde- 
pendent sovereign  republic,  because  it  was  already  a  slave  state,  and  as  such 
while  it  would  widen  our  national  domain  and  power,  and  in  that  respect 
was  (lesiral)le,  yet  on  the  other  hand,  it  would  essentially  enlarge  slave  terri- 
tory, and  strengthen  the  power  of  that  institution  in  the  national  legislature 
and  polity.  Texas  was  admitted,  as  we  have  stated,  by  Act  of  Congress  of 
March  ist,  1845.  ^Pl^roved  by  President  John  Tyler,  and  that  act  of  admission 
was  ratified  by  vote  of  the  Texan  people,  February  19th,  1846.  Texas  con- 
tained a  territory  about  seven  times  as  large  as  Pennsylvania ;  the  Act  of  Ad- 
mission provided  that  it  might  be  divided  into  five  states,  thus  placing  ten 
Senators  more  in  Congress. 

The  question  was  still  undecided  whether  the  Rio  Grande  del  Norte  or 
the  Nueces  river  should  be  the  boundary  between  the  United  States  and  Mex- 
ico. The  f|uestion  alone  might  have  been  settled  by  peaceful  negotiations:  but 
in  its  relation  to  other  interests  it  was  an  element  of  constant  irritation;  and 
yet  its  importance  was  magnified  by  the  desire  of  statesmen  of  the  time,  to 
extend  our  domain  from  the  northern  borders  of  Mexico  and  Texas,  to  Oregon 
and  to  the  Pacific  Coast. 

Where  there  is  a  will  there  is  a  way,  as  between  a  stronger  nation  and  a 
weaker  one;  as  it  is  in  most  other  affa'irs.  Such  extension  was  in  a  large  sense 
very  desirable  on  our  part,  especially  as  viewed  in  the  light  of  later  events. 
That  expansion,  besides  enlarging  our  borders,  would  open  a  new  field  for 


History  of  the  Bench  and  Bar  of  California.  17 

the  possible  extension  of  the  "pecuHar  institution."  This  hope  may  have  been 
a  further  inducement  to  the  acquisition  of  the  new  territory  of  Cahfornia,  or 
the  reverse  would  resuh,  should  the  new  state  decide,  as  they  did  later,  in 
favor  of  free  soil. 

vSome  cruelties  and  wrongs  had  been  perpetrated  on  our  people  by  Mexico ; 
but  whether  with  or  without  justification,  it  is  not  the  present  purpose  to  dis- 
cuss or  determine.  It  is  sufficient  to  say,  that  in  such  condition  of  public  senti- 
ment, the  Mexican  War  began,  with  the  battle  of  Palo  Alto,  May  8th,  1846, 
and  ended  with  the  treaty  of  peace  concluded  February  2nd,  1848;  ratification 
being  exchanged  at  Queretaro,  May  30,  1848.  This  gave  us  clear  and  quiet 
title  and  possession  of  this  vast  territory,  against  all  the  world. 

I.EADING  EVENTS  PRECEDING  STATE  ORG.VNIZATION. 

Clreat  events  were  crowded  into  the  very  few  years  preceding  the 
organization  of  California.  Unlike  the  states  of  Europe,  of  different  lan- 
guages and  ancient  nationalities  and  laws,  with  their  monotonous  quarrels 
and  ceaseless  wars  about  church  creeds  and  royal  succession,  the  great  stretch 
of  territory  of  California  and  New  Mexico,  newly  acquired,  was  free  from 
all  such  embarrassments.  It  was  mostly  inhabited  by  merciless  Indians,  sav- 
age beasts,  herds  of  buffalo  and  wild  horses;  and  it  came  to  pass,  as  the  result 
of  that  acquisition  that  new  states  arose,  ruled  by  free  men,  self-governed 
under  a  system  of  written  constitutions  and  laws  of  their  own  choice  and 
construction,  designed  to  secure  equal  rights  to  one  and  all.  The  church  was 
made  subordinate  to  the  State.  In  the  class  of  modern  states  last  mentioned. 
California  stands  as  the  first-born  of  the  family. 

The  state-builders  of  our  lately  acquired  insular  possessions  of  Cuba,  Porto 
Rico,  Hawaii,  and  the  Philippines,  may  yet  find  some  useful  hints  in  studying 
the  history  of  California,  to  aid  them  in  their  new  field,  for  the  exercise  of 
statesmanship;  in  adapting  the  principles  of  republican  government,  under 
written  constitutions  and  laws,  to  foreign  territory,  peopled  by  those  whose 
customs,  laws,  leligion,  habits,  education,  or  the  want  of  education,  are  so 
different  from  one  another,  and  all  of  them  so  \'ery  different  from  tliDse  who 
from  first  to  last,  framed  our  earlier  American  constitutions. 

If  our  dominion  over  those  insular  possessions  had  been  acciuired  under 
the  consolidating  pressure  of  foreign  enemies,  as  was  the  case  with  our  patriotic 
ancestors  of  '76,  and  with  less  of  the  spirit  of  con(|uest,  trade  and  commercial 
profit,  and  less  of  political  and  military  aml)ition,  would  not  our  success  in 
gaining  the  confidence  and  respect  and  aid  of  the  heterogeneous  mass  of 
humanity,  so  suddenly  broiight  under  our  banner,  have  been  much  greater, 
more  rapid,  at  less  cost  of  blood  and  treasure,  and  more  to  the  safety  and 
credit  or  our  nation?  Who  shall  be  our  judge?  One  thing  is  certain,  1.  e., 
that  the  events  of  the  last  three  years  of  the  nineteenth  century  seem  fraught 
with  the  destiny  of  our  country  and  of  mankinrl. 


18  History  of  the  Bench  and  Bar  of  California. 

Unlike  the  early  history  of  ancient  nations,  we  have  not  to  depend  on  myths 
or  traditions  for  the  origin  of  the  State  of  California;  nor  for  a  clear  account 
of  the  valor  and  wisdom  of  most  of  its  early  founders;  nor  yet  is  there  any 
uncertainty  as  to  circumstances  which  gave  birth  to  the  military-civil  govern- 
ment of  the  first  four  years  succeeding  our  first  possession ;  for,  happily,  the 
fierce  sectional  contention  prevailing  in  Congress,  arising  from  the  slavery 
question,  caused  to  be  introduced  into  the  House  of  Representatives,  and 
passed  on  December  31,  1849,  the  resolution  before  referred  to.  There  was, 
at  the  time,  an  equal  number  of  free  states  and  of  slave  states;  so  that  the 
main  question  was  equally  balanced  in  the  Senate.  And  in  each  house  of 
Congress,  there  was  eager  desire  for,  and  determined  opposition  to.  the  exten- 
sion of  slave  territory. 

Prior  to  the  annexation  of  Texas,  the  free  states  were  outgrowing  the 
slave  states  in  territory,  population,  power  and  wealth.  When  that  vast 
independent  state,  of  seven  times  the  extent  of  Pennsylvania,  came  in  as  a 
slave  state,  reserving  the  right  to  be  divided  into  five  states,  it  presaged  a 
great  preponderance  of  the  slaveholders,  and  caused  deep  anxiety  to  the  free- 
soilers,  for  it  seemed  to  threaten  an  enlargement  and  perpetuity  of  an  "insti- 
tution"' under  the  protection  of  the  Constitution,  which  the  latter  regarded  as 
a  menace  to  the  welfare  of  the  nation,  and  which  they  hoped  might  in  a  rea- 
.sonable  time  be  abolished.  The  acquisition  of  California,  adjacent  to  Texas 
(for  California,  as  then  understood,  included  everything  as  far  east,  at  least, 
as  Salt  Lake  City)  was  designed  to  immensely  enlarge  the  slave-holding  terri- 
tory. Such  result  was  regarded  by  the  opposition,  with  the  utmost  jealousy, 
and  so  w^as  stubbornly  resisted.  President  Polk,  having  favored  the  annexa- 
tion of  Texas,  and  active  in  prosecuting  the  war  with  Mexico,  ending  with 
the  acquisition  of  this  large  domain,  was  naturally  thought  by  the  free-soilers 
to  have  been  covertly  shaping  affairs  in  California  so  as  to  bring  it  into  the 
Union  as  a  slave  State.  This  is  plainly  indicated  in  the  resolution  of  the 
Plouse  of  Representatives.  The  published  state  documents,  called  out  by  that 
resolution,  prove  that  such  apprehension  was  c|uite  imfounded ;  and  yet  the 
passage  of  the  resolution  as  it  turned  out,  served  a  most  valuable  purpose,  for 
if  sought  to  rake  the  state  archives  to  bring  to  light  and  put  Ijefore  the  world 
what  seems  to  exhibit  every  line  of  correspondence  in  the  executive  depart- 
ment, touching  the  acquisition  of  California,  during  the  term  of  President 
Polk's  administration,  extending  also  into  the  first  part  of  the  term  of  President 
Zachary  Taylor. 

By  the  paper  of  May  14,  1846,  above  mentioned.  Secretary  Marcy  informs 
Kearny  that  Air.  G.  T.  Howard  is  the  bearer  of  a  communication  "to  the 
caravan  of  traders  en  route  to  Santa  Fe,  and  he  must  overtake  them  with  the 
least  possible  delay,"  and  requires  Kearny  to  furnish  Howard  with  a  detach- 
ment of  dragoons,  sufficient  in  strength  to  insure  his  safety  through  the 
countrv. 


History  of  the  Bench  and  Bar  of  California.  19 

By  another  letter  to  Kearny  of  May  27th,  Mr.  Marcy  advises  him  of  the  re- 
Hgious  prejudices  of  the  Mexican  inhabitants  of  Santa  Fe  and  its  vicinity, 
against  the  United  States,  and  authorizes  assurances  to  be  given  "that  their 
rehgious  institutions  will  be  respected,  the  property  of  the  church  protected, 
their  worship  undisturbed — in  fine,  that  all  their  religious  rights  will  be  in  the 
amplest  manner  preserved  to  them."  In  a  letter  of  June  3rd,  1846,  Secretary 
Marcy  writes  to  Kearny  that  "it  has  been  decided  by  President  Polk  to  be  of  the 
greatest  importance  in  the  pending  war  with  Mexico,  to  take  the  earliest  pos- 
session of  Upper  California.  An  expedition  with  that  view  is  hereby  ordered, 
and  you  are  designated  to  command  it.  .  .  .  This  additional  force  of  a 
thousand  mounted  men  has  been  provided,  to  follow  you  in  the  direction  of 
Santa  Fe  to  be  under  your  orders.     ...     In  case  you  conquer  Santa  Fe 

provide  for  retaining  safe  possession  of  it — garrison  it,  and  wMth  the  re- 
mainder press  forward  to  California,"  and  he  is  "authorized  to  make  a  direct 
requisition  for  still  more  troops  upon  the  Governor  of  Missouri" ;  further,  he  is 
"desired  to  use  all  proper  means  to  have  a  good  understanding  with  the  body  of 
Alormon  emigrants  en  route  to  California  for  the  purpose  of  settling  the  coun- 
try" ;  and  he  is  also  "authorized  to  muster  into  service  as  many  [Mormons]  as 
one-tbiird  of  your  entire  force"  ;  that  "a  considerable  numlier  of  American  citi- 
zens are  now  settled  on  the  Sacramento  river,  near  Sutter's  establishment, 
called  Xueva  Helvetia,  well  disposed  towards  the  United  States." 
"A  large  discretionary  ])ower  is  invested  in  you"  :  "the  choice  of  routes  to  enter 
California"  is  left  to  Kearny. 

"It  is  expected  that  the  naval  forces  of  the  United  States  which  are  now. 
or  will  soon  be  in  the  Pacific,  wnll  be  in  possession  of  all  the  towns  on  the 
sea-coast,  and  w'ill  co-operate  with  you  in  the  conquest  of  California:  arms, 
ordnance,  munitions  of  war,  and  provisions  to  be  used  in  that  country  will  be 
sent  by  sea  to  our  squadron  in  the  Pacific,  for  the  use  of  the  land  forces." 
"Should  you  conquer  and  take  possession  of  New  Mexico  and  Upper  Cali- 
fornia, or  considerable  places  in  either,  you  will  establish  temporary  civil  gov- 
ernment therein — abolishing  all  arbitrary  restrictions  that  may  exist,  so  far 
as  it  may  be  done  with  safety,'  .  .  .  'and  continue  in  their  employ- 
ment all  such  of  the  existing  officers  as  are  known  to  be  friendly  to  the  United 
States,  and  will  take  the  oath  of  allegiance  to  them."  "The  duties  at  the  custom- 
house ought  at  once  to  be  reduced  to  barely  sufficient  to  maintain  the  neces- 
sary officers,  without  yielding  any  revenue  to  the  government.'  .  .  .  'As- 
sure the  people  of  the  wish  and  design  of  the  United  States  to  provide  for  them 
a  free  government  similar  to  that  in  our  territories.'  .  .  .  'They  \v\\\  then 
be  called  on  to  elect  their  own  representatives  to  the  territorial  legislature." 

"It  is  foreseen  that  w^hat  relates  to  tlie  civil  government  will  l)e  a  difficult 
and  unpleasant  part  of  your  duty,  and  much  must  necessarily  be  left  to  your 
own  discretion,"  and  "you  will  act  in  such  a  manner,  as  best  to  conciliate  the 
inhabitants  and  render  them  friendly  to  the  United  States.'       'The  usual  trade 


20  History  of  the  Bench  and  Bar  of  California. 

between  the  citizens  of  the  United  States  and  the  Mexican  provinces  should 
be  continued  as  far  as  practicable,"  etc. 

"You  will  be  furnished  with  a  proclamation  in  the  Spanish  language,  to 
be  circulated  among  the  IMexican  people  on  entering  into  or  approaching  their 
country.  .  .  .  You  will  use  your  utmost  endeavor  to  have  the  pledges 
and  promises  therein  contained,  carried  out  to  the  utmost  extent." 

"I  am  directed  by  the  President  to  say  that  the  rank  of  Brevet  Brigadier- 
General  will  be  conferred  on  you  as  soon  as  you  commence  your  movement 
toward  California,  and  sent  around  to  you  by  sea  or  over  the  country,  or  to 
the  care  of  the  commandant  of  our  squadron  in  the  Pacific.  In  that  way,  can- 
non, arms,  ammunition,  and  supplies  for  the  land  forces  will  be  sent  to  vou." 
This  is  dated  June  3rd,  1846,  and  is  still  addressed  to  Colonel  S.  W.  Kearny, 
Fort  Leavenworth,  twenty-four  days  after  the  battle  of  Palo  Alto  of  ]\Iay  8th, 
1846 — the  first  battle  of  the  war. 

The  communication  is  marked  "confidential" — but  it  is  now  of  national 
interest  as  disclosing  how  support  of  this  overland  army  was  anticipated  by 
our  government  in  sending  in  advance  to  meet  them,  "the  naval  forces  (which 
Secretary  ]\Iarcy  says)  now  or  soon  will  be  in  the  Pacific,  and  will  be  in  pos- 
session of  all  the  towns  on  the  sea-coast,  and  will  co-operate  with  you  (Kearny) 
in  the  conquest  of  California." 

The  foregoing  quotations  may  be  taken  as  samples  of  many  documents 
relating  to  California  emanating  from  the  respective  departments  in  the  begin- 
ning and  course  of  the  war  and  down  to  the  organization  of  the  State.  They 
are  cited  to  show  the  sagacity  which  marked  the  whole  proceeding.  They 
explain  how  land  and  naval  forces  got  along,  with  no  means  of  rapid  trans- 
continental communication  between  this  Coast  and  the  War  Department  short 
of  several  months;  and  yet  it  came  to  pass  that  our  squadron,  after  a  leisurely 
stay  in  ports  along  the  coast,  timed  it  so  nearly  right  as  to  have  ships  and 
armies  meet  at  Monterey  and  take  the  town  and  plant  our  flag  on  the  old  Mexi- 
can custom-house  on  July  7th,  1846;  that  day  giving  official  date  to  the  acquisi- 
tion of  California.  The  old  custom-house  still  remains  in  its  pristine  pride, 
and  the  flagstaff  which  first  bore  the  colors  and  official  honors  of  "Old  Glory'' 
in  California,  is  divided  into  sections  which  are  sacredly  preserved  in  the 
hall  of  the  Society  of  California  Pioneers,  and  in  the  State  Mining  Bureau  at 
San  Francisco. 

How  that  flag  was  kept  afloat,  by  the  valor  and  patriotism  of  our  army 
and  navy,  it  is  not  the  present  purpose  to  recount;  suffice  it  to  say  that  the 
numbers  opposing  us  and  their  means  of  resistance  were  ^•ery  slim;  besides,  as 
a  matter  of  fact  the  native  people  rapidly  became  reconciled  to  the  new  con- 
dition of  things. 

The  Americans  in  furtherance  of  their  publishctl  proclamation  of  safety 
and  protection  of  person,  property  and  religion  to  all  peaceable  inhabitants, 
verified  that  assurance  by  their  acts  of  kindness  and  good  will ;  paving  for 


History  of  the  Bench  and  Bar  of  California.  21 

whatever  they  took  in  the  way  of  supplies ;  thus  making  money  more  plentiful ; 
and  it  is  no  strain  of  imagination  to  think  that  the  sudden  ingress  of  so  many 
young,  strong,  heroic,  handsome  fellows,  was  not  without  a  pleasant  effect 
upon  the  minds  of  the  ladies  of  the  land,  to  say  nothing  of  the  charm  of  the 
dazzling  uniforms  of  the  graceful,  polite  and  cultured  officers,  whose  native 
impulses  that  way  had  been  quickened  by  orders  from  the  \\'2.r  Department  to 
make  themselves  as  agreeable  as  possible — which  orders  turned  out  to  be 
supererogatory,  for  on  a  short  acquaintance,  the  ladies  of  the  Departmental 
capital,  proved  to  l)e  not  only  fascinating,  but  irresistible — as  did  many  later 
marriages  attest. 

Immediately  after  raising  our  flag,  the  fast  assembling  land  forces  under 
Fremont,  with  some  of  the  Bear  Flag  captors  of  Sonoma,  and  Kearny's  regi- 
ments and  others — the  arrival  of  further  troops  by  sea,  including  the  J.  D. 
Stevenson  regiment,  soon  made  the  conquest  of  California  an  established  fact, 
in  which  the  inhabitants,  finding  themselves  prosperous  and  happy,  seemed 
cheerfully  to  acquiesce. 

On  review,  it  seems  probable  and  safe  to  believe,  that  the  pleasing  excite- 
ment and  flush  times  which  attended  the  discovery  of  gold,  caused  a  diversion 
of  the  popular  attention  from  all  questions  of  politics  and  change  of  flag,  to 
the  more  safe  and  profitable  employment  of  gathering  w^ealth,  more  ra])idly 
than  their  brightest  dreams  had  ever  pictured ;  besides  all  of  wdiich,  their  new 
condition  was  so  peaceful,  the  new  government  rested  so  lightly  over  all  the 
land — almost  unfelt — they  must  soon  have  become  reconciled  to  a  change  so 
beneficial. 

This  was  the  condition  of  the  people  which  followed  by  progressive  steps, 
the  capture  of  California  as  above  related.  It  made  the  management  of  the 
civil  government  much  more  simple  and  easy  than  it  might  have  been,  had 
conditions  been  otherwise. 

It  is  said  by  General  Grant  in  his  memoirs,  that  the  army  officers  engaged 
in  the  Mexican  War,  were  all  gentlemen,  educated  to  their  profession.  Tliis 
was  eminently  true  of  l)oth  army  and  navy  officers  wIk*  particii)ate(l  in  the  cap- 
ture and  early  government  of  California. 

Strange  as  it  may  seem.  Congress,  having  then  lately  extended  the  revenue 
laws  to  California,  Colonel  Collier,  the  first  collector,  came  not  till  November, 
1849.  Congress  stopjjcd  tliere,  and  made  no  prox'ision  for  a  ci\-il  go\-ernnicnt : 
but  rested  content  with  the  civil  authority  in  the  hands  of  the  people,  and 
municipal  and  judicial  magistrates,  under  th.e  ultimate  jurisdiction  of  the 
Commanding  Generals  of  the  military  department,  who  chiefly  were  Kearnv, 
Mason  and  Riley,  successively.  How  wisely  and  how  well  they  performed 
those  functions  we  may  not  now  eulogize  as  they  deserve;  but  some  future 
historian  will,  we  trust,  emblazon  their  just  and  patriotic  deeds  on  immortal 
pages. 

From  the  confusion  incident  to  the  sudden  change  of  flag,  all  the  municipal 
and  (Iciiartmcntal  records  of  the  former  go\-crnmcnt  fell  into  great  disorder. 


rin 


History  of  the  Bench  and  Bar  of  California. 


\ 


they  were  scattered,  and  many  of  them  lost;  besides  the  further  embarrassment 
of  their  being  written  wholly  in  the  Spanish  language,  which  was  understood 
by  very  few  of  our  people. 

A  week  after  the  raising  of  our  flag  on  July  7th,  1846,  there  sailed  from 
New  York,  the  United  States  transport  ship  Lexington,  wnth  military  officers 
and  above  one  hundred  troops  and  stores  for  California,  arriving  at  Monterey, 
January  26th,  1847,  under  Captain  C.  O.  Tompkins,  master.  m 

The  army  officers  aboard  were  Lieutenants  William  T.  Sherman,  E.  O.  C. 
Ord,  Lucien  Loeser,  Colville  J.  Minor  and  H.  W.  Halleck,  all  graduates  of 
West  Point,  and  of  some  military  experience ;  and  Dr.  James  L.  Ord,  then  a  ' 

late  graduate  of  Jefferson  Aledical  college,  Philadelphia,  who  bore  the  com- 
mission of  physician  and  surgeon  for  these  officers  and  troops  of  the  ship. 
He  used  to  relate  with  a  proper  degree  of  self-satisfaction,  that  on  the  next 
day  after  their  arrival  at  Monterey,  every  man  who  started  on  that  voyage, 
was  w'ith  them  in  sound  health,  and  that  the  officers,  wnth  their  men  shoulder- 
ing arms  and  knapsacks,  marched  into  the  tow'n  and  relieved  the  marines  then 
in  charge,  wdio  returned  to  their  ships  in  port. 

The  officers  just  named,  were  all  young  men,  who  had  already  seen  some 
hard  military  service  in  the  Seminole  Indian  War  in  Florida,  and  elsewhere. 
They  became  very  active  and  efficient  factors  under  the  government  of  the 
newly  acquired  territory,  in  various  capacities.  This  appears  in  the  report  of 
President  Taylor,  showing  their  map  of  Lower  California,  with  its  towms, 
and  the  bays  and  islands  in  the  Gulf  of  California.  With  the  map,  there  is 
also  a  full  report  descriptive  of  the  people,  the  soil,  climate  and  productions 
of  the  country,  surpassing  in  fullness,  anything  since  written  in  connected 
form.  One  of  those  officers  also  became  Secretary  of  State,  in  charge  of  the 
public  archives  under  the  military  Governors;  and  all  of  them,  and  many 
others,  appear  in  the  President's  report,  as  conserving  good  order,  in  subduing 
hostile  Indians  and  aiding  the  alcaldes  in  the  arrest  and  punishment  of  crimi- 
nals and  outlaw^s. 

INSTRUCTIONS,   PROCLAMATIONS   AND  ORDERS. 

A  brief  notice  of  some  of  the  orders  and  proceedings  of  the  military-civil 
Governors,  their  proclamations,  and  the  instructions  under  which  they  acted, 
may  serve  as  samples  of  all  they  did  in  the  line  of  civil  government  from  July, 
1846,  to  December,  1849. 

Soon  after  his  arrival.  Lieutenant  IT.  W.  Halleck  was  employed  by  the 
successive  Governors  in  the  civil  department  as  secretary  of  the  Territory  of 
California,  including  the  care,  collation  and  arrangement  of  the  records  and 
pa]:)ers  of  the  former  government,  and  he  also  "in  his  proper  profession  as  an 
engineer  officer,  acquitted  himself  with  great  credit  in  every  situation" — as 
the  military-civil  Governor,  R.  B.  Mason  expressed  it  in  his  report  to  the  War 
Department  under  date  of  December  27th,  1848. 


History  of  the  Bench  and  Bar  of  California.  23 

We  must  omit  the  good  things  said  in  the  same  report  of  other  officers, 
and  of  their  services,  including  the  punishment  of  hostile  Indians.  Colonel 
Mason  says  in  the  same  report,  after  describing  his  visit  to  the  mines,  "that 
several  most  horrible  murders  have  of  late  been  committed  in  this  coun- 
try," describing  the  massacre  of  ten  persons,  men,  women  and  children,  at 
the  mission  of  San  Miguel,  doubtless  by  white  men ;  no  mention  of  any 
arrests.  He  speaks  of  three  men  being  "hung  in  Pueblo  de  San  Jose, 
for  assault  with  intent  to  kill,  and  for  robbing  the  assaulted,  who  were 
bringing  gold  from  the  mines.  On  complaint  to  the  alcalde  at  San  Jose, 
three  of  the  assailants  were  arrested,  tried  before  a  jury,  who  convicted 
them."  The  evidence  against  them  was  clear,  so  they  were  sentenced  to  death 
by  hanging;  the  sentence  was  executed  on  Monday  last.  "You  are  aware 
that  no  competent  civil  courts  exist  in  this  country,  and  that  strictly  speaking 
there  is  no  legal  power  to  execute  the  sentence  of  death."  The  Governor  adds 
to  the  above :  "I  shall  not  disapprove  of  the  course  that  was  taken  in  this 
instance,  and  shall  only  endeavor  to  restrain  the  people,  so  far  as  to  insure  to 
every  man  charged  with  a  capital  crime,  an  open  and  fair  trial  by  a  jury  of 
his  countrymen." 

And  touching  the  San  Miguel  crimes  and  the  murder  of  Mr.  Reed's  fam- 
ily, the  Governor  reports :  "I  despatched  Lieutenant  Ord  with  a  couple  of 
men,  to  that  mission  to  ascertain  the  truth,  and  if  need  be,  to  aid  the  alcalde  in 
the  execution  of  his  office."  Colonel  Mason  closes  his  report  of  December 
27th,  1848,  at  Monterey,  with  this  : 

"The  latest  dates  from  the  departments  are  of  the  i8th  of  April,  l)r(^ught 
out  by  the  ship  Huntress ;  and  to  illustrate  how  completely  we  are  cut  off  from 
any  communication  with  the  United  States,  I  wall  merely  mention  that  Major 
Graham's  command  received  orders  and  marched  across  the  continent,  bring- 
ing with  them  the  first  intelligence  of  their  coming." 

The  Indian  agents  then,  as  now,  were  appointed  by  the  authorities  in  Wash- 
ington, but  they  were  entirely  under  the  direction  of  the  Governor,  who 
appointed  assistants  where  necessary. 

And  so,  with  the  custom-house  officers,  as  appears  by  his  "circular"'  of  June 
1st,  1847.  "R-  B.  Mason,  Colonel  First  Dragoons,  Governor  of  California," 
directs  that  "the  military  officers  of  Upper  California,  who  have  been  directed 
to  settle  the  accounts  of  the  custom-house  officers,  etc.,  to  receive  from  them 
the  funds  arising  from  the  customs"  will  keep  an  account  with  these  head- 
quarters, a])art  from  all  other  public  funds  in  their  possession.  "These  funds 
will  be  applied  only  upon  the  order  of  the  Governor,  to  the  civil  department 
of  California." 

It  appears  that  General  Kearny  left  California  for  the  East.  May  3Tst,  and 
Colonel  Mason  took  charge  as  Governor  on  June  ist,  1847,  when  he  issued 
the  above  circular — and  the  next  day  he  is  giving  the  alcalde  of  Sonoma  some 
aid  and  comfort  as  to  the  duties  of  his  office,  promising  him  the  necessary 
military  aid ;  and  adds  that  he  having  been  only  two  days  in  office  as  Governor, 


24  History  of  the  Bench  and  Bar  of  California. 

is  not  prepared  to  define  the  extent  of  the  alcalde's  powers  and  jurisdiction,  and 
adds,  "You  must,  for  the  time  being,  be  governed  by  the  customs  and  laws 
of  the  country,  and  by  your  own  good  sense  and  sound  judgment." 

The  Governor  regrets  that  he  cannot  afford  any  greater  mail  facilities  than 
the  military  express,  which  has  been  established  once  in  two  weeks  between 
San  Francisco  and  San  Diego,  which  carries  the  letters  and  papers  for  all 
persons  free  of  charge." 

The  foregoing,  taken  promiscuously  from  hundreds  of  the  like  examples, 
will  serve  to  show  that  the  office  of  Governor  of  California  was  one  of  unlim- 
ited scope — and  that  it  was  one  of  great  care  and  labor,  which  required  both 
readiness  and  vigor  of  judgment;  and  that  those  duties  were  performed  by 
each  and  all  of  those  Governors  and  all  oflficers  under  them,  with  distinguished 
ability  and  with  perfect  purity  of  motive,  with  an  eye  single  to  the  highest 
public  good.  In  fact,  it  seemed  to  have  been  their  only  purpose  and  intention 
to  carry  out  in  good  faith,  all  that  had  been  promised  in  the  several  proclama- 
tions to  the  Mexican  people,  in  the  way  of  freedom,  justice,  protection  and 
rights,  to  be  enjoyed  by  them  equally  with  all  other  citizens  of  the  United 
States. 

These  promises,  so  faithfully  performed,  resulted  in  the  cheerful  acquies- 
cense  and  co-operation  of  the  inhabitants  in  the  administration,  until  and 
including  the  fully  organized  government  of  the  new  State  of  California. 

It  will  be  sufficient  to  give  the  date  and  substance  of  a  few  of  a  multitude 
of  orders,  etc.,  of  the  military  Governors,  taken  promiscuously,  which  may 
serve  as  samples  of  a  thousand  similar  ones.  ]\Iost  of  Governor  Mason's 
papers  run  thus :  "Governor  ]\Iason  directs  me,"  thus  and  so,  concluding 
thus :  "I  have  the  honor  to  be,  very  respectfully,  your  obedient  servant,  W.  T. 
Sherman,  First  Lieut.  Third  Artillery,  A.  A.  A.  General." 

Governor  R.  B.  Mason  appoints  John  Foster  an  alcalde  in  the  District  of 
San  Juan,  embracing  the  ranches  of  San  Juan,  San  Luis  and  Pala.  in  Upper 
California.     July  14th.  1847. 

Governor  Mason  promises  Alcalde  George  Hyde  he  will  soon  come  up  to 
San  Francisco  from  Monterey  to  adjust  the  survey  of  100  vara  lots  or  else 
will   appoint   commissioners.     Dated  July   14th.   T847. 

Governor  Mason  informs  Don  Miguel  de  Pedrorena.  collector  of  customs 
at  San  Diego,  that  his  salary  will  be  at  the  rate  of  $1000  per  annum,  "provided 
revenue  to  that  amount  be  collected  and  received  in  your  office." 

"Edwin  Bryant,  Esq..  is  hereby  appointed  alcalde  of  the  town  of  Verba 
Buena  and  of  the  District  of  San  Francisco,  vice  Lieutenant  W.  A.  Bartlett, 
who  returns  to  his  naval  duties. 

"Given  at  Yerba  Buena,  Upper  California,  this  22nd  day  of  February,  1847. 
and  in  the  seventy-first  year  of  the  independence  of  the  United  States. 

"S.  \V.  Ke.\rnv, 
"Brigadier-General.  United  States  ,'\rmy." 

"Know  all  men  by  these  presents,  that  L  Richard  B.  Mason,  Colonel  First 
Dragoons,  United  States  .\rmy  and  Governor  of  California,  by  virtue  of  author- 
ity vested  in  me,  do  hereby  appoint  J.  S.  Hunter  a  sub-Indian  agent  for  the 
Indians  in  the  lower  district  of  Upper  California. 


History  of  the  BencJi  and  Bar  of  California.  25 

"Given  at   Santa   Barbara,   Upper   California,   this   ist   day  of  August,   1847. 
and  the  seventy-second  of  the  independence  of  the  United  States. 

"R.   B.   Mason." 

The  Governor  ordered  municipal  elections  at  different  times  and  places, 
set  aside  those  he  deemed  irregular,  ordered  elections  for  prefects  and  sub- 
prefects,  etc.,  too  numerous  to  even  refer  to  here  in  detail ;  appoints  numerous 
notary  publics  at  San  Francisco  and  other  places. 

Captain  John  A.  Sutter,  under  date  of  July  12th,  1847,  writes  from  New 
Helvetia  to  Governor  Mason,  recounting  outrages  at  three  places  widely  sepa- 
rated, perpetrated  on  peaceful  Indian  camps,  murdering  some  and  carrying 
away  some  as  slaves ;  that  he  has  ordered  complaints  made  to  the  local  alcaldes, 
and  asking  written  instructions  from  the  Governor,  as  to  how  he  as  sub-Indian 
agent,  is  to  act  in  these  cases,  and  in  the  general  management  of  the  Indians. 

The  Governor  replies,  July  21st,  expressing  regrets  at  the  outrages;  he 
directs  Captain  Sutter  "to  call  on  the  military  officer  near  you  for  all  the 
assistance  in  his  power  to  afford,"  adding  "when  arrested  I  will  organize  a  tri- 
bunal for  their  trial,  and  if  sentence  of  death  is  passed  upon  them.  I  will  see 
it  executed,"  .  .  .  and  directs  Captain  Sutter  to  restore  the  captured 
Indians  to  their  people,"  etc. 

August  19th,  1847,  Governor  Mason  sent  a  commission  to  General  Vallejo 
and  Captain  vSutter  to  hold  a  special  court  for  the  trial  of  Armijo,  Smith  and 
Eggar,  charged  with  committing  the  outrages  on  the  Indians  mentioned  by 
Sutter,  (with  particular  directions  for  a  fair  trial). 

In  Robidoux  vs.  Lease,  in  June,  1847,  Governor  Mason  refused  a  change 
of  venue,  a  second  time,  the  case  being  in  the  alcalde's  court,  giving  good, 
lawyer-like  reasons. 

Stockton's  proclamation. 

Commodore  Sloat  left  California  for  the  Atlantic  states  on  July  22nd, 
1846  (some  fifteen  days  after  raising  the  flag  at  Monterey),  leaving  Com- 
modore Stockton  in  command  of  his  s(|uadron. 

Commodore  Stockton,  on  August  17th,  1846,  issued  a  proclamation  to  the 
people  of  California,  saying,  "it  is  soon  to  be  governed  by  laws  and  officers 
similar  to  those  of  other  territories — but  until  the  Governor,  the  Secretary 
and  Council  are  appointed,  .  .  .  military  law  will  prevail,  and  the  com- 
mander-in-chief will  be  the  Governor  and  protector  of  the  territory." 

The  proclamation  "requests  the  people  in  the  meantime  to  meet  in  their 
several  towns  and  departments  when  they  see  fit,  to  elect  civil  officers,  to  fill 
the  places  of  those  who  decline  to  continue  in  ofi'ice,  and  to  adnu'nister  the 
laws  according  to  the  former  u.sages  of  the  territory.  In  all  cases  where  the 
people  failed  to  elect,  the  commander-in-chief  and  the  Governor  will  n\akc 
the  appointments  himself." 


26  History  of  flic  Beiicli  and  Bar  of  California. 

MARCY  TO  KEARNY. 

Mr.  Marcy,  Secretary  of  War,  under  date  of  January  nth,  1847,  writes 
10  "Brigadier  General  S.  W.  Kearny,  commanding  in  California,"  saying: 

"The  war  with  Mexico  exists  by  her  own  act  and  the  declaration  of  the 
congress  of  the  United  States;  that  the  possession  of  the  enemy's  territory 
acquired  by  justifiable  acts  of  war,  gives  us  right  of  government  during  the 
continuance  of  the  possession,  and  imposes  on  us  a  duty  to  the  inhabitants, 
who  are  thus  placed  under  our  dominion."  He  shows  that  if  the  conquest  i.= 
approved  by  subscf|uent  treaty,  'then  the  imperfect  title  acquired  by  conquest 
is  made  absolute,  and  the  inhabitants  are  entitled  to  all  the  benefits  of  the- 
federal  constitution,  to  the  same  extent,  as  the  citizens  of  any  other  part  of 
the  Union." 

"During  our  military  possession,  the  inhabitants  should  be  permitted  to 
participate  in  the  selection  of  agents  to  make  or  execute  the  laws  to  be  en- 
forced." 

GENERAL  KEARNy's   PROCLAMATION  TO  THE  PEOPLE  OF  CALIFORNIA. 

This  paper  is  dated  at  Monterey  on  March  ist.  1847,  in  which  he  says 
in  his  opening  words : 

"The  President  of  the  United  States,  having  instructed  the  undersigned  to 
take  charge  of  the  civil  government  of  California" — he  adds  that  his  instruc- 
tions are  to  respect  and  protect  all  religious  rights,  property  and  institutions, 
etc.,  and  to  see  that  they  are  preserved  to  the  people  in  the  amplest  manner. 
That  until  further  legislation  by  congress,  the  existing  laws  will  be  continued 
until  changed  by  competent  authority;  and  "those  who  hold  ofifice  will  con- 
tinue in  the  same  for  the  present,"  providing  that  they  swear  to  support  the 
Constitution,  etc.  The  proclamation  continues,  saying,  "when  Mexico  forced 
war  upon  us,  we  had  no  time  to  invite  Californians  as  friends,  to  join  our 
standard,  so  that  we  were  compelled  to  take  possession  of  the  country  to  pre- 
vent any  European  power  from  seizing  upon  it.  The  Americans  and  Califor- 
nians are  now  but  one  people.'' 

KEARNY    GRANT. 

On  March  loth,  1847,  General  Kearny  granted  "to  the  town  of  San  Fran- 
cisco, the  people  or  corporate  authorities  thereof,  all  the  right,  title,  and  in- 
terest of  the  government  of  the  United  States  and  of  the  territory  of  Cali- 
fornia in  and  to  the  beach  and  water  lots  on  the  east  front  of  the  said  town," 
etc.  This  purports  to  have  been  done  "by  virtue  of  the  authority  in  me  vested 
by  the  President,  etc."  Of  course  that  act  was  void  for  want  of  power  to 
make  it.  But  the  State  legislature  of  California,  by  Act  of  March  26th,  185 1> 
confirmed  the  grant  for  ninety-nine  years. 

On   March  27th,    1847,   General   Kearny  ordered   Colonel   R.   B.   Mason 


I 


History  of  the  Bench  and  Bar  of  California.  27 

to  proceed  to  the  Southern  Military  District  of  this  territory,  at  Los  Angeles, 
to  ins])ect  the  troops  in  that  (juarter.  "Yon  are  hereby  clothed  with  full 
authority  to  give  such  orders  and  instructions,  in  that  country,  upon  all  matters 
whatever,  both  civil  and  military,  as  in  your  jndgiuent  you  mav  think  con- 
ducive to  the  public  interest." 

A  note  by  Kearny,  dated  next  day  after  the  above  order,  was  addressed 
to  Colonel  Fremont,  at  Los  Angeles.  The  latter  about  those  days,  was  him- 
self claiming  to  be  Governor  of  California;  but  that  claim  was  not  sustained 
by  the  naval  or  military  officers  present,  nor  by  the  administration. 

DIVORCKS. 

A  married  couple  applied  to  an  Alcalde  for  a  divorce.  The  alcalde  con- 
sulted (Tcneral  Kearny.  He  advised  the  alcalde  as  follows:  "That  the  hus- 
band and  wife  each  should  choose  an  arbitrator ;  and  the  two  thus  chosen 
must  choose  a  third,  then  let  the  three  arbitrators,  in  your  presence,  hear 
what  both  ])arties  have  to  say.  and  flecide  whether  the  parties  [naming  them] 
shall  be  separated,  for  three,  six,  or  twelve  months,  if  separated  at  all."  CouU' 
the  wisdom  of  Solomon  excel  that  judgment? 

On  May  28th,  1847,  General  Kearny  appointed  George  Hyde  alcalde  of 
the  District  of  San  Francisco  vice  Edwin  Bryant,  resigned.  Mr.  Hyde,  soon 
after  this  appointment,  was  elected  alcalde  by  vote  of  the  people  of  the  town. 

The  governor  ordered  municipal  elections  at  various  times  and  places  foi 
prefects,  sub-prefects,  etc. ;  he  also  set  aside  other  elections  for  irregularity. 
On  July  14th,  1847,  Govern.or  Mason  appointed  "John  Foster  as  alcalde  for 
the  District  of  San  Juan,  em1)racing  the  ranches  of  San  Juan,  San  Luis  and 
Tala  in  L^pper  California." 

In  Robidoux  v.  Lease,  in  June,  1847,  Governor  Mason  refused  a  change  of 
x'enue  a  second  time,  the  case  being  in  the  alcalde's  court;  giving  good  lawyer- 
like reasons  for  refusal. 

GOVERNOR    MASON    PROCLAIMS    PIvACK. 

On  August  7th,  1848,  "Colonel  R.  B.  Mason,  Colonel  First  Dragoons, 
Governor  of  California."  makes  public  proclamation  of  the  ratification  of  the 
treaty  of  ])eace,  and  friendshi])  between  the  United  States  :nid  Mexico,  bv 
which  Tpper  California  is  ceded  to  the  United  States.  He  says,  that  until 
we  shall  have  a  regularly  organized  territorial  government,  the  present  c;\il 
officers  will  continue  in  the  exercise  of  their  functions  as  heretofore,  and  when 
\'acancics  shall  occur,  they  will  be  filled  by  regular  elections  held  bv  the  peonle. 

Mr.  Marcy  .says  to  Colonel  Sterling  Price,  in  letter  of  June  iith.  1847: 
"The  temporary  civil  government  in  New  Mexico  results  from  the  conquest 
of  the  country.  It  does  not  derive  its  existence  directlv  from  the  laws  of 
congress,  or  the  constitution  of  the  United  vStatcs,  and  the  President  can  not. 


28  History  of  the  Bench  and  Bar  of  California. 

ill  any  other  than  that  of  Commander-in-Chief,  exercise  any  control  over  it. 
It  was  first  estaljlished  in  New  Mexico,  by  the  officer  at  the  head  of  the  miHtary 
force,  sent  to  conquer  the  country  under  general  instructions  contained  in 
the  communication  from  this  department  of  the  3rd  of  June,  1846.  Beyond 
such  general  instructions,  the  President  has  declined  to  interfere  with  the 
management  of  the  civil  affairs  of  this  territory."  This  letter  is  addressed  to 
the  "ofificer  commanding  the  United  States  forces,  at  Santa  Fe,  New  Mexico.'" 
Here,  again,  is  an  attempt  to  define  the  status  of  the  military  authority, 
relating  to  civil  laws,  unrepealed,  which  were  admittedly  in  operation  in  all 
local  municipal  aft'airs,  at  least.  New  Mexico  and  California  were  both  in 
rhe  same  legal  condition.  The  validity  of  the  local  municipal  laws,  is  prac- 
tically acknowledged  retrospectivel}-,  in  recognition  of  the  alcalde  grants  of 
town  lots,  by  the  various  alcaldes  in  San  Francisco,  and  also  in  the  other 
pueljlos  from  1846  to  1849,  '^"<^1  '^'so  by  the  recog-nition  of  a  title  to  a  parcel  of 
500  acres  of  the  pueblo  lands  of  San  Jose,  granted  by  an  alcalde  (the  Chiboya 
claim)  ;  and  the  like  recognition  of  title  to  a  half-league  of  puelilo  land,  of  Los 
Angeles,  granted  by  the  alcalde  of  that  pueblo  (the  Rocha  claim — 9  Wallace, 
647).  The  law  did  not  change,  though  land  values,  almost  nominal  at  the 
times  of  the  grants,  rose  enormously  before  the  date  of  final  decisions  thereon 
by  the  Supreme  Court  of  the  United  States. 

ALCALDES  AND  LARLY   LAND  GRANTS. 

In  all  the  principal  towns  in  California,  including  San  Diego,  Los  Angeles, 
Santa  Bar])ara,  San  Jose,  San  Francisco,  Sonoma  and  some  others,  perhaps, 
the  alcaldes  were  elected  by  the  inhabitants  of  the  place;  and  in  case  of  a 
vacancy,  for  any  cause,  in  that  ofiice,  it  was  filled  by  the  Governor.  The  al- 
caldes, respectively,  of  those  pueblos  were  the  well  recognized  heads  of  the  mu- 
nicipality. 

By  the  laws  and  customs  of  Mexico,  those  towns  or  puel)los.  as  they  were 
called,  were  entitled  to  imeblo  lands,  usually  to  the  extent  of  four  leagues  to 
each  pueblo,  for  the  use  and  benefit  of  the  inhabitants. 

They  were  usually  distributed  to  the  inhabitants,  by  grants  of  lots,  as 
needed.  Grants  were  made  by  the  alcaldes.  Such  was  the  practice  in  San 
Francisco,  where  the  practice  began  as  early  as  1836  and  continued  down  to 
the  passage  of  the  first  city  charter  enacted  by  the  legislature  of  the  State, 
.April  15th,  T850. 

For  a  while  before  the  charter  of  1850  went  into  effect,  town  lots  were 
sold  at  public  auction  by  order  of  the  town  council;  the  deeds  were  made 
to  the  purchasers  by  the  alcalde,  in  the  name  of  the  town.  It  is  believed  that 
such  was  the  practice  of  distributing  town  lots  by  alcalde  grants  in  all  the 
other  pueblos  of  California. 

The  alcaldes,  under  the  new  regime,  who  succeeded  the  first  two  already 
named,  i.  c.,  Bartlett  and  Bryant,  were  George  Hyde,  Thaddeus  M.  Leaven- 


History  of  the  Bench  and  Bar  of  California.  29 

worth,  and  John  \V.  Geary.  They  were  all  elected  by  the  inhabitants  of  the 
town.  They  all  granted  town  lots.  Those  grants  were  entered"  of  record  by 
them.  The  books  containing  the  grants  compose  the  record  title  of  such  lots, 
derived  from  the  town  and  are  a  part  of  the  city  land  titles  in  the  official 
custody  of  the  county  recorder. 

For  a  full  and  particular  account  of  all  the  grants  of  town  (or  pueljlo) 
lots  made  by  the  alcaldes,  ayuntamientos  or  other  municipal  authorities  of  the 
pueblo,  town  or  city  of  San  Francisco  from  the  year  1836  to  1851,  the  reader 
i.s  referred  to  "AMieeler's  Land  Titles."  It  is  an  abstract  from  the  official 
records,  made  under  the  direction  of  the  Towai  Council.  It  shows  the  date 
of  grant  or  sale;  description  of  every  lot  granted;  the  name  and  title  of  the 
officer  or  authority  bv  which  the  grant  was  made. 

CAl,L  FOR  A  COXSTITUTIONAL  CONVENTION. 

General  Rile3\  the  Governor,  on  June  3,  1849,  issued  his  proclamation  for 
holding  a  special  election  August  ist.  next,  "for  the  election  of  delegates  to  a 
general  convention,  and  for  filling  the  offices  of  judges  of  the  Superior  Court, 
prefects  and  sub-prefects,  and  all  vacancies  in  the  office  of  first  alcalde  (or 
judge  of  first  instance),  alcaldes,  justices  of  the  peace  and  town  councils." 

The  Governor  puts  the  reasons  for  his  call  on  the  ground  that  "congress 
has  failed  to  organize  a  new  territorial  government."  .  .  .  "so  that  it 
becomes  our  imperative  duty  to  take  some  active  means  to  provide  for  the 
wants  of  the  country."  .  .  .  "by  putting  in  full  vigor  the  administration 
of  the  laws  as  they  now  exist,  and  completing  the  organization  of  the  civil 
government  by  the  election  and  appointment  of  all  officers  recognized  by  law," 
"and  a  convention  to  meet  and  frame  a  State  constitution  or  a  terri- 
torial organization."  to  be  ratified  by  the  people  and  by  congress.  He  repels 
"the  im])ression  that  the  government  of  the  country  is  still  military.  Such  is 
not  the  fact.  The  military  government  ended  with  the  war,  and  what  re- 
mains, is  the  civil  government,  recognized  in  the  existing  laws  of  California." 

"Although  the  command  of  the  troops  in  this  department  and  the  admin- 
istration of  civil  affairs  in  California  are,  by  the  existing  laws  of  the  country 
and  the  instructions  of  the  President  of  the  United  States  temporarily  lodged 
in  the  hands  of  the  same  individual,  they  are  separate  and  distinct." 

"No  military  officer,  other  than  the  commanding  general  of  the  depart- 
ment, exercises  any  civil  authority  by  virtue  of  his  military  commission  ;  and 
the  powers  of  the  commanding  general  as  ex-officio  governor,  are  only  such 
as  are  defined  and  recognized  in  the  existing  laws." 

"The  instructions  of  the  Secretary  of  War,  make  it  the  duty  of  all  military 
officers  to  recognize  the  existing  civil  government,  and  to  aid  its  officers  with 
the  military  force  under  their  control."  "The  existing  laws  of  the  country 
must  continue  in  force  until  replaced  l)y  others  made  and  enacted  by  comi)e- 
tent  power." 


30  History  of  the  Bench  and  Bar  of  California. 

On  September  19,  1849,  Governor  Riley  tells  E.  O.  Crosby,  Thomas  O. 
Larkin.  and  others,  a  committee  of  the  constitutional  convention,  that  the 
"accounts  and  affairs  of  the  con\ention,  should  be  certified  by  the  president  of 
the  convention  as  just  and  true,  and  authori::cd  by  the  convention;  then  on 
receiving  my  written  approval,  they  will  be  paid  by  the  civil  treasurer,  or  his 
agents."  The  "civil  treasurer"  meant  the  keeper  of  custom-house  receipts, 
etc.  All  monies  so  collected  went  not  into  the  national  treasury,  but  went  to 
pay  local  expenses  of  California. 

Had  the  author  of  the  opinion  in  \Voodworth  v.  Fulton  (i  Cal.  Rep.,  de- 
cided December,  1850)  read  this  opinion  of  General  Riley,  and  those  of  the 
other  generals,  and  the  opinions  of  Secretary  Marcy  and  Secretary  Buchanan, 
above  Cjuoted,  that  opinion  would  never  have  been  pronounced.  Then  the  city 
would  not  have  suffered  the  stunning  effects  of  that  decision,  till  it  was  finally 
corrected  l)v  the  proper  one  in  Cohas  v.  Raisin,  some  two  years  later.  (3 
Cal.  443.) 

The  foregoing  copies  and  extracts  of  ofticial  papers,  are  proft'ered,  in  evi- 
dence of  the  ardent  jnu'ijose  of  the  administration  and  its  officers,  to  make 
our  government  both  agreeable  and  profitable  to  our  newly-adopted  fellow- 
citizens. 

The  same  spirit  of  peace  and  good  will  is  manifest  in  every  act  and  order  of 
the  officers  who  were  expected  to  carry  such  policy  into  execution.  The  calm 
and  unpretentious  tone  in  the  correspondence  of  these  officers,  with  their  sub- 
ordinates, is  worthy  of  imitation.  Their  kind  and  courteous  intercourse  with 
the  officers  of  the  naval  squadron,  brought  the  two  arms  of  the  service  in  per- 
fect accord  in  all  things  they  undertook  in  the  concjuest  and  government  of 
this  territory. 

The  exceptional  breach  of  such  kindly  intercourse  among  officers  of  the 
army  and  navy  arose  between  Kearny  and  Fremont  in  1847,  fi'oni  the  question, 
which  was  governor,  /.  e.,  was  it  Kearny  under  the  President's  order  of  1846, 
or  was  it  Fremont,  under  Stockton's  appointment  in  July,  1847. 

It  is  foreign  to  present  purposes  to  discuss  the  merits  of  that  bitter  quarrel, 
which  aroused  a  contest  of  the  ])arties  and  their  friends,  including  cabinet 
officers,  senators  and  others,  of  a  very  serious  nature. 

After  California  came  into  the  possession  of  the  United  States,  the  alcaldes. 
Judges  of  First  Instance,  prefects,  etc.,  in  some  of  the  principal  settlements, 
continued  to  exercise  their  wonted  Junctions  as  nearly  as  they  could,  in  con- 
formity to  the  Mexican  civil  laws  and  customs;  which,  of  course,  were  still 
unrepealed,  and  therefore  unaffected  by  the  change  of  flags.  But  more  often 
the  places  of  the  native  officers  were  filled  by  new-comers  from  "the  States," 
while  in  the  mines,  where  was  the  mass  of  population  after  mining  began,  the 
miners  appointed  their  own  alcaldes  from  their  own  numbers,  and  they,  with 
the  aid  of  a  jury,  when  demanded,  tried  mining  suits,  criminal  cas^s  and  the 
like,  in  general  conformity  to  court  procedure;  and  so  administered  justice 
with  celerity,  in  a  spirit  of  real  fairness,  and  to  the  satisfaction  of  the  com- 


History  of  the  Bench  and  Bar  of  California.  31 

niunity.  There  were  exceptions  to  the  calm  jury-trial  practice,  in  some  of 
the  mining  camps,  where  capital  punishment  was  visited  on  certain  criminals ; 
and  scarcely  less  harsh  and  severe  penalties  were  inflicted  on  others,  without 
the  form  of  a  deliberate  trial.  It  was  to  avert  such  consequences  that  alcaldes 
at  times  meted  out  severe  correction. 

The  foregoing  outline  of  California's  history  may  prove  useful  to  readers 
who  desire  to  understand  some  of  the  chief  events  as  they  occurred  in  connec- 
tion with  the  Mexican  War,  as  it  related  to  the  acquisition  of  the  State,  and 
to  .show  their  relation  to  each  other,  and  to  the  respective  movements  in  Mexico 
and  in  California,  as  parts  of  a  broad  and  general  plan  of  action. 

It  indicates  the  vast  powers  confided,  tacitly,  not  explicitly,  to  the  military 
officers  here,  and  shows  the  remarkable  wisdom,  patriotism  and  fidelity  with 
which  those  duties  were  performed.  It  suggests  that  such  duties,  committed 
to  talented,  well-trained  men,  educated  in  our  military  and  naval  schools,  are 
regarded  by  them  as  a  sacred  trust,  never  to  be  neglected  or  violated. 

We  have  pointed  to  a  reservoir  of  precedents,  which  may  be  useful  to  all 
who  have  a  part  in  public  rule,  who  may  be  dependent  on  their  knowledge  and 
mental  resources  to  guide  them  in  their  fields  of  action. 

The  thoughtful  statesman  cannot  study,  without  admiration  and  wonder, 
the  even  temper,  the  sustained  moderation,  with  which  our  army  officers  for 
nearly  four  years,  in  the  absence  of  legislation  and  almost  beyond  reach  of  the 
paramount  authorities,  administered  all  military  and  ci\'il  affairs  in  the  vast 
and  conquered  country. 

SAMUEL  W.  IIOLLADAY. 

San  Francisco,  Cal.,  Decemljer  i,  1900. 


JAMES   BUCHANAN'S  OPINION  ON   SOME  CONSTITUTIONAL  QUESTIONS. 

In  the  autumn  of  1848,  the  Postmaster-Cicncral  appointed  William  \'an  \drhies  "an 
agent  under  the  act  to  establish  certain  postal  routes"'  in  California,  approved  August  14. 
1848. 

As  Mr.  Van  Vorhies  was  about  to  start  fo.-  California  on  that  mission,  he  received 
a  letter  of  instructions  from  James  Buchanan,  then  Secretary  of  State  under  President  Polk ; 
the  letter  bearing  date  October  7,  1848,  saying  to  Mr.  Van  Vorhies,  among  other  things : 
"The  President  has  instructed  me  to  make  known,  through  your  agency,  to  the  citizens  of 
the  United  States  inhabiting  that  Territory,  his  views  respecting  tlieir  present  condition  and 
future  prospects." 

"The  President  congratulates  the  citizens  of  California  on  the  annexation  (^f  tlieir 
fine  province  to  the  United  States."  .  .  .  "On  the  30th  of  May,  1848.  the  day  on  which 
the  ratifications  of  our  late  treaty  with  Mexico  were  exchanged,  California  finally  became 
an  integral  portion  of  this  great  and  glorious  republic;  and  the  act  of  Congress  to  which 
I  have  already  referred,  in  express  terms  recognizes  it  to  be  within  the  territory  of  the 
United  States." 


32  History  of  the  Bench  and  Bar  of  California. 

After    some    further    congratulations    upon  their  annexation,  the  letter  saj'S : 

"Under  such  a  constitution  and  such  laws,  the  prospects  of  California  are  truly  encour- 
aging." 

"The  President  deeply  regrets  that  Congress  did  not  at  their  late  session,  establish 
a  territorial  government  for  California."  .  .  .  that  he  "is  convinced  that  Congress  will 
at  an  early  period  of  the  next  session  provide  for  them  a  territorial  government,  suited  to 
their  wants."     ... 

"In  the  meantime  the  condition  of  the  people  of  California  is  anomalous,  and  will 
require,    on   their   part,    the    exercise    of   great  prudence  and  discretion. 

"By  the  conclusion  of  the  treaty  of  peace,  the  military  government  which  was  estab- 
lished over  them  under  the  laws  of  war,  as  recognized  by  the  practice  of  all  civilized 
nations,  has  ceased  to  derive  its  authority  from  this  source  of  power. 

"But  is  there,  for  this  reason,  no  government  in  California?  Are  life,  liberty  and 
property  under  the  protection  of  no  existing  authority?  This  would  be  a  singular  phe- 
nomenon in  the  face  of  the  world,  and  especially  among  American  citizens,  distinguished 
as  they  are  above  all  other  people  for  their  law-abiding  character.  Fortunately  they  are 
not  reduced  to  this  sad  condition.  The  termination  of  the  war  left  an  existing  government, 
a  government  dc  facto,  in  full  operation;  and  this  will  continue  with  the  presumed  con- 
sent of  the  people,  until  Congress  shall  provide  for  them  a  territorial  government.  The 
great  law  of  necessity  justifies  this  conclusion.  The  consent  of  the  people  is  irresistibly 
inferred  from  the  fact  that  no  civilized  community  could  possibly  desire  to  abrogate  an 
existing  government,  when  the  alternative  presented  would  be  to  place  themselves  in  a 
state  of  anarchy,  be3^ond  the  protection  of  all  laws,  and  reduce  them  to  the  unhappy  necessity 
of  submitting  to  the  dominion  of  the  strongest.  This  government  dc  facto  will,  of  course, 
exercise  no  power  inconsistent  with  the  provisions  of  the  Constitution  of  the  United  States, 
which  is  the  supreme  law  of  the  land.  For  this  reason  no  import  duties  can  be  levied  in 
California  on  articles,  the  growth,  produce,  or  manufacture  of  the  United  States,  as  no  such 
duties  can  be  imposed  in  any  other  part  of  our  Union  on  the  prodticts  of  California.  Nor 
can  new  duties  be  charged  in  California,  upon  such  foreign  productions  as  have  already 
paid  duties  in  any  of  our  ports  of  entry,  for  the  obvious  reason  that  California  is  within 
the  territory  of  the  United  States." 

After  dilating  on  the  peaceful  and  prosperous  conditions  of  California,  the  postoflfice 
laws  extended  to  California ;  the  contemplated  "monthly  steamers  on  the  line  from  Panama 
to  Astoria,  to  stop  and  deliver  and  take  mails  at  San  Diego,  San  Francisco,  and  Monterey," 
that  "appropriations  have  been  made  to  maintain  troops  to  nrotect  the  inhabitants  against 
all  attacks  from  civilized  or  savage  foes,"  etc.,  etc.,  the  letter  adds  : 

"But,  above  all,  the  Constitution  of  the  United  States,  the  safeguard  of  all  our  civil 
rights,  was  extended  over  California  on  the  30th  of  May,  1848,  the  day  on  which  our 
late  treaty   with   Mexico   was  finally  consummated. 

"From  that  day  its  inhabitants  became  entitled  to  all  the  blessings  and  benefits  resulting 
from  the  best  form  of  civil  government  ever  established  amongst  men.     .     .     . 

"A  considerable  portion  of  the  population  of  California  were  Mexican  citizens  before 
the  late  treaty  of  peace.  These,  our  new  citizens,  ought  to  be,  and,  from  the  justice  and 
generosity  of  the  American  character,  the  President  is  confident  that  they  will  be,  treated 
with  respect  and  kindness,  and  thus  be  made  to  feel  that  by  changing  their  allegiance 
they  have  become  more  prosperous  and  happy." 

In  the  opening  lines  of  the  foregoing  letter,  Mr.  Buchanan  says  that  the  President  has 
instructed  the  writing  of  it  (in  eflfect)  to  the  people  of  California.  Doubtless  it  reflects 
the  united  counsels  of  President  Polk  and  his  entire  cabinet,  composed  as  it  was,  of  wise 
and  great  men.  In  anticipation  of  questions  that  may  arise  applicable  to  our  lately  extended 
dominions,  it  is  hoped  that  some  of  the  principles  of  government,  adopted  by  President 
Polk  and  his  cabinet,  may  be  found  applicable  to  these  later  strains  upon  the  Constitu- 
tion. 

S.IML'EL  Jl\  HOLLADAY. 


THE  BIRTH  OF  THE 
COMMONWEALTH 

"ROCKWELL  1).  HUNT,  Vh.  T>. 

'Professor  of  History  and  Political  Science 

in  the  University  of  the  Pacific 


&  &  &  &  'A  dfe  A  jfc  ab  & 

HISTORY  of  the 
BENCH  and  BAR 
of  CALIFORNIA 


6^(^ 


T/ze  BIRTH  of  the  COMMONWEALTH 


Half  of  a  century  has  passed  since  there  met  in  old  Monterey  a  distin- 
guished body  of  men,  who  gave  California  her  first  fundamental  law  as  a 
commonwealth  of  the  United  States  of  America.  Those  pioneers  of  the 
Pacific,  together  with  their  generation,  have  with  hardly  an  exception  gone 
to  their  long  home.  The  days  of  '49 — thrilling,  epoch-making,  unique — 
can  never  be  reproduced. 

The  seizure  of  California  was  a  most  important  act  in  the  drama  of  our 
war  with  Mexico.  Tidings  of  peace  were  received  by  General  Riley,  August 
6,  1848.  Under  the  military  rule  of  Governor  Mason  many  of  the  American 
settlers  had  become  exceedingly  restive  in  the  absence  of  a  regular  civil  gov- 
ernment. Now  that  the  Treaty  of  Guadelupe  Hidalgo  left  California  an 
integral  part  of  our  national  domain  the  settlers  became  even  more  clamorous 
for  civil  organization  based  upon  American  principles.  In  the  meantime 
the  discovery  of  gold  almost  infinitely  increased  the  need  for  organized  gov- 
ernment and  the  more  perfect  administration  of  justice.  In  those  days  of 
gold  there  was  among  lovers  of  law  and  order — be  it  said  to  their  honor — 
much  genuine  solicitude  for  California's  future. 

Repeated  failures  of  Congress  to  provide  suitable  organization,  because  of 
the  burning  question  of  slavery  extension,  greatly  increased  the  gravity  of 
the  situation  and  multiplied  the  embarrassing  difficulties  of  the  de  facto  Gov- 
ernors. California  was  filling  up  with  a  heterogeneous  tide  of  adventurers 
and  fortune-hunters  from  all  lands;  the  gaming-table  was  rapidly  breeding 
drunkenness  and  crime;  law  was  almost  wholly  wanting,  justice  was  being 
defeated  and  villainy  was  fast  becoming  rampant.  California,  now  "to  be 
morally  and  socially  tried  as  no  other  American  community  ever  has  been 
tried,"  became  the  focus  of  the  world's  attention.  It  is  little  cause  for  sur- 
prise, therefore,  that  patience  was  at  length  exhausted,  and  that  the  people, 
true  to  their  Anglo-Saxon  instinct  and  training,  without  waiting  longer  for 
Congress  or  Governor,  initiated  a  widespread  movement  looking  toward  civil 
government. 


36  History  of  the  Bench  and  Bar  of  California. 

The  first  provisional  government  meeting  was  held  in  Pueblo  de  San  Jose, 
December  ii,  1848.  This  enthusiastic  gathering  unanimously  recommended 
that  a  ''general  convention  for  the  purpose  of  nominating  a  suitable  candidate 
for  Governor,  and  for  such  other  business  as  may  be  deemed  expedient  be 
held  at  the  Pueblo  de  San  Jose  on  the  second  Monday  in  January  next." 
Three  delegates,  Messrs.  Dimmick,  Cory,  and  Hoppe  were  chosen.  At  San 
Francisco  a  similarly  enthusiastic  meeting  was  held,  and  similar  recommend- 
ations were  adopted,  the  date  of  the  proposed  convention,  hoAvever,  being 
fixed  at  the  first  Monday  in  March,  1849.  Several  other  dates  were  subse- 
quently recommended  by  various  district  meetings;  but  finally  the  first  Mon- 
day in  August,  a  date  remote  enough  to  allow  the  southern  district  to  be  rep- 
resented in  those  days  of  slow  communication  and  travel,  was  conjointly 
agreed  upon. 

On  February  12,  the  people  of  San  Francisco,  in  mass  meeting  assem- 
bled, established  a  temporary  government  for  that  district  under  circum- 
stances that  would  seem  to  render  such  action  both  logical  and  justifiable. 
Thus  arose  the  ''Legislative  Assembly  of  San  Francisco,"  comprising  among 
its  fifteen  members  some  whose  talents  were  of  the  highest  in  California. 
The  just  motives  of  these  select  men  cannot  be  questioned,  neither  can  their 
unceasing  loyalty  to  the  United  States  be  impeached.  In  default  of  neces- 
sary officials  there  were  also  chosen  three  magistrates,  a  treasurer  and  a  sheriff. 
The  population  of  San  Francisco  which  in  March.  1848,  numbered  812  souls, 
had  increased  by  February,  1849,  ^o  some  2,000,  and  by  July  to  upwards  of 
5,000. 

In  the  midst  of  these  preparatory  movements  for  civil  organization,  Gen- 
eral Bennett  Riley  arrived,  April  12,  on  board  the  Iowa,  and  the  following 
day  relieved  Colonel  Mason  as  acting  Governor  of  California.  Cognizant 
of  the  movements  of  the  people  for  organization,  he  awaited,  with  such 
patience  as  circumstances  would  permit,  news  of  Congressional  action. 
Immediately  on  learning  of  the  third  failure  to  provide  for  the  civil  govern- 
ment of  California  he  issued  a  carefully  drawn  proclamation,  dated  June  3, 
"defining  what  was  understood  to  be  the  legal  position  of  affairs  here,  and 
pointing  out  the  course  it  was  deemed  advisable  to  pursue  in  order  to  procure 
a  new  political  organization  better  adapted  to  the  character  and  present  con- 
dition of  the  country."  The  proclamation  contained  the  following  important 
provisions :  "In  order  to  complete  this  organization  with  the  least  possible 
delay,  the  undersigned  in  virtue  of  the  power  in  him  vested,  does  hereby 
appoint  the  ist  of  August  next  as  the  day  for  holding  a  special  election  for 
delegates  to  a  general  convention,  and  for  filling  the  ofiices  of  Judges  of  the 
Superior  Court,  prefects  and  sub-prefects,  and  all  vacancies  in  the  offices  of 
first  alcalde  (or  Judge  of  first  instance),  alcaldes,  justices  of  the  peace  and 
town  councils.  The  general  convention  for  forming  a  State  constitution  or 
plan  for  territorial  government  will  consist  of  thirty-seven  delegates,  who 
will  meet  in  Monterey  on  the  ist  day  of  September  next." 


History  of  the  Bench  and  Bar  of  California.  37 

Meanwhile  General  Riley  had  been  made  aware  of  the  existence  and  force 
of  the  San  Francisco  legislative  assembly,  w'hich  had  been  assuming  new  and 
more  extended  powers.  The  assembly  did  not  recognize  any  civil  power  as 
residing  in  General  Riley,  a  military  officer.  Accordingly  Riley's  proclama- 
tion, appointing  day  and  place  for  a  constitutional  convention,  provoked  no 
slight  opposition;  and  the  San  Francisco  legislative  assembly,  which  had 
become  the  head  and  front  of  the  settlers'  movement,  again  took  occasion  to 
assert  w-hat  it  considered  its  undoubted  right;  "It  is  the  duty  of  the  govern- 
ment of  the  United  States  to  give  us  laws ;  and  when  that  duty  is  not  per- 
formed, one  of  the  clearest  rights  we  have  left,  is  to  govern  ourselves."  The 
assembly  even  recommended  a  general  convention  to  be  held  at  San  Jose  on 
the  third  Monday  in  August,  'Svith  enlarged  discretion  to  deliberate  upon 
the  best  measures  to  be  taken ;  and  to  form,  if  they  upon  mature  consideration 
should  deem  it  advisable,  a  State  constitution  to  be  submitted  to  the  people." 
Almost  simultaneously  wath  the  publication  of  this  address  Governor  Riley 
issued  a  proclamation  to  the  people  of  San  Francisco,  pronouncing  the  "body 
of  men  styling  themselves  the  'legislative  assembly  of  the  district  of  San 
Francisco,"  an  illegal  and  unauthorized  body,  wdiich  had  usurped  powers  vested 
solely  in  the  Congress  of  the  United  States,  and  warning  all  persons  "not  to 
countenance  said  illegal  and  unauthorized  body,  either  by  paying  taxes  or 
by  supporting  or  abetting  their  officers."  It  looked  for  the  moment  as  if  the 
legislative  assembly  had  assumed  an  attitude  of  reckless  defiance,  but  this 
was  true  only  in  appearance. 

The  people  on  the  one  hand  and  the  de  facto  Governor  on  the  other  had 
now  arranged  for  a  general  constitutional  convention,  the  date  and  place 
conflicting.  The  opposing  theories  which  for  convenience  may  be  called  the 
Settlers'  Theory  and  the  Administration  Theory,  on  the  question  of  the  legal 
status  of  California  from  the  ratification  of  the  treaty  with  Mexico  to  the 
adoption  of  the  State  constitution  had  now  been  clearly  defined  and  respect- 
ively defended  in  the  territory  itself.    Which  side  should  give  way? 

Happily  in  this  case  the  people  w-ere  not  sticklers  for  their  alleged  rights. 
What  they  desired  was  organized  government ;  the  end  was  paramount,  the 
means  of  securing  it  secondary.  Hence  indications  of  satisfaction  wMth  and 
acquiescence  in  Riley's  plans  began  almost  immediately  to  manifest  them- 
selves. San  Jose  first  expressed  satisfaction,  and  other  districts  followed. 
The  San  Francisco  legislative  assembly,  viewing  with  hopefulness  the  chang- 
ing situation,  finally  recommended  the  propriety  "of  acceding  to  the  time  and 
place  mentioned  by  General  Riley,  in  his  proclamation  and  acceded  to  by  the 
people  of  some  other  districts."  This  was  not  deemed  a  concession  of  prin- 
ciple, but  a  matter  of  expediency,  for  the  assembly  still  refused  to  recognize 
any  rightful  authority  to  appoint  times  and  places  as  residing  in  General 
Riley.  The  quiet  downfall  of  the  assembly,  which  had  remained  loyal  to 
the  w^elfare  of  California  to  the  last,  was  recorded  the  next  week,  July  19. 

The  controversy  was  at  an  end.     The  election  of  delegates  to  the  conven- 


38  History  of  the  Bench  and  Bar  of  California. 

tion  elicited  unanticipated  interest  in  every  district,  the  result  in  large  measure 
of  the  special  efforts  of  Generals  Riley  and  Smith  and  Thomas  Butler  King. 
The  native  Californians  of  the  southland  showed  unexpected  cordiality,  and 
even  the  miners  turned  aside  to  seek  out  suitable  candidates.  "It  seemed, 
however."  as  Dr.  S.  H.  Willey  has  said,  "like  a  very  odd  idea  for  such  a  mass 
of  strangers  as  were  then  in  California,  speaking  in  diverse  languages,  know- 
ing little  of  each  other's  views,  a  great  part  of  them  men  without  families  and 
in  the  country  only  for  a  temporary  purpose,  to  go  to  work  within  a  few 
months  of  the  arrival  of  most  of  them,  without  any  authority  or  encourage- 
ment from  Congress,  to  set  up  a  new  State."  Scheming  of  parties  and  politi- 
cal machinations  were  wanting,  the  earnest  endea^•or  being  to  select  competent 
men.  By  Septeniber  i.  many  of  the  delegates  were  in  Monterey,  but  no 
quorum  appeared  at  the  Saturday  meeting. 

The  convention  organized  on  Monday,  September  3,  1849.  opening  with 
prayer  to  Almighty  God  "for  his  blessing  on  the  body  in  their  work,  and  on 
the  country."  The  meeting  p\Rce  was  the  upper  story  of  Colton  Hall,  one 
of  the  most  important  buildings  extant  from  the  standpoint  of  our  State 
history.  The  choice  of  Dr.  Robert  Semple,  of  Kentucky,  for  president 
seems  to  have  been  eminently  wise.  The  key-note  of  the  convention  was 
struck  when  in  his  brief  address  he  said  :  "We  are  now%  fellow-citizens, 
occupying  a  position  to  which  all  eyes  are  turned.  .  .  .  It  is  to  be  hoped 
that  every  feeling  of  harmony  will  be  cherished  to  the  utmost  in  this  conven- 
tion. By  this  course,  fellow-citizens,  I  am  satisfied  that  we  can  prove  to  the 
world  that  California  has  not  been  settled  entirely  by  unintelligent  and  unlet- 
tered men.  .  .  .  Let  us.  then,  go  forw^ard  and  upward,  and  let  our  motto 
be,  'Justice,  Industry  and  Economy.'  "  William  G.  Marcy  was  elected  secre- 
tary, and  J.  Ross  Browne  reporter. 

This  convention,  meeting  under  circumstances  quite  unique,  presents  a 
personnel  of  unusual  interest.  There  were  majiy  Americans  who  had  already 
rendered  conspicuous  service  in  laying  the  foundation  of  the  commonwealth. 
The  Hispano-Californians  numbered  seven,  and  there  was  one  native  each 
of  Ireland,  Scotland,  Spain,  France  and  Switzerland.  Here  was  a  body  of 
men,  not  of  national  reputation  nor  of  extraordinary  learning,  but  for  the 
most  part  disinterested,  competent  and  zealous  for  the  faithful  discharge  of 
their  high  commission.  California's  first  constitution  was  not  the  sudden 
creation  of  unintellectual  gold-hunters ;  for  only  six  of  the  delegates  had 
resided  in  California  less  than  six  months,  while  twenty-two,  exclusive  of 
native  Californians,  had  resided  here  for  three  years  or  longer.  \\'ith  good 
reason  Professor  Royce  declares:  "Had  these  men  of  the  interregnum  not 
preceded  the  gold-seekers  California  would  have  had  no  State  constitution 
in  1849." 

The  roll  of  members  included  Captain  John  A.  Sutter,  universallv  known 
for  his  hospitality  and  amiable  qualities,  whose  fort  at  Sacramento  had  been 
for  a  decade  the  chief  rendezvous  of  central   California  for  the  American 


History  of  the  Bench  and  Bar  of  California.  39 

immigrants ;  Captain  H.  W.  Halleck,  then  Governor  Riley's  efficient  Secretary 
of  State,  and  since  distinguished  in  law,  literature,  and  war ;  Thomas  O.  Lar- 
kin,  widely  known  as  the  first  and  last  American  consul  to  California ;  Edward 
Gilbert,  pioneer  journalist  and  an  early  representative  in  Congress ;  William 
M.  Gwin,  undoubtedly  the  most  distinguished  politician  of  the  convention, 
who  had  four  months  before  come  to  California  with  the  express  purpose  of 
securing  his  election  to  the  United  States  Senate;  and  John  McDougal,  of 
Ohio,  who  became  second  Governor  of  the  new  State  on  the  resignation  of 
Burnett.  The  seven  native  Californians,  a  fair  representation,  comprised 
some  of  the  best-known  names  of  the  old  regime;  General  M.  G.  Vallejo,  for 
many  years  known  as  the  "most  distinguished  of  living  Hispano-Califor- 
nians" ;  P.  N.  de  la  Guerra,  the  most  accomplished  and  best-educated  of  the 
group;  Jose  Carrillo,  intelligent,  forceful,  of  pure  Castilian  blood,  but  some- 
what prejudiced  against  the  Americans ;  Antonio  Pico,  of  distinguished 
family,  shrewd  if  not  always  suspicious ; — these,  with  the  more  obscure  names 
of  Manuel  Dominguez,  Jacinto  Rodriguez,  and  J.  M.  Covarrubias,  completed 
the  group, — unless  we  add  M.  de  Pedrorena,  a  native  of  Spain, — only  two 
members  of  which  spoke  English  with  any  fluency  or  readily  understood  it. 
All  were  treated  with  a  high  degree  of  respect,  and  to  them  were  extended 
special  courtesies. 

We  are  indebted  to  J.  Ross  Browne,  the  reporter,  for  the  "Debates  in  the 
Convention,''  with  appendices,  a  volume  invaluable  to  the  student  of  our  his- 
tory. It  was  provided  that  the  convention  should  be  opened  each  day  with 
prayer,  the  chaplains  appointed  being  Rev.  Padre  Antonio  Ramirez  and  Rev. 
S.  H.  Willey,  both  of  Monterey.  Dr.  Willey  has  given  us  one  of  the  best 
accounts  of  the  convention,  and  has  made  other  important  contributions  to 
our  State  history. 

The  obviously  difficult  task  of  constitution-making  was  undertaken  by  a 
body  of  perhaps  the  youngest  men  that  ever  met  for  a  similar  purpose,  the 
average  age  of  delegates  being  thirty-six  years.  Carrillo,  the  oldest,  was 
fifty-three ;  Jones  and  Hollingsworth  were  each  twenty-five.  Browne 
assures  us  that  "the  body,  as  a  whole,  commanded  respect  as  being  dignified 
and  intellectual" ;  and  Bayard  Taylor  affirms  that,  "taken  as  a  body,  the  dele- 
gates did  honor  to  California  and  would  not  suffer  by  comparison  with  any 
first  State  convention  ever  held  in  our  Republic.  The  appearance  of  the 
whole  body  was  exceedingly  dignified  and  intellectual,  and  parliamentary 
decorum  was  strictly  observed."  A  summary  would  sliow  f(^urteen  lawyers, 
twelve  farmers,  eight  merchants  and  traders,  and  one  (B.  F.  Moore)  gentle- 
man of  "elegant  leisure."  Fully  awake  to  the  importance  of  their  labors 
and  of  their  local  position  in  national  politics,  the  delegates  as  a  body  were, 
as  Colton  declared,  raised  "above  all  national  prejudice  and  local  interests," 
pouring  their  spirit  in  blending  ])ower  over  their  measures. 

A  strong  vote  for  State  organization  fjuickly  disposed  of  the  important 
preliminary  (juestion  whether  the  assembi}-  should  form  a  State  or  Territorial 


40  History  of  the  Bench  and  Bar  of  California. 

government.     California  has  never  been  a  regularly  organized  Territory  of 
the   United    States. 

The  debates  that  occupied  those  builders  of  a  commonwealth  cannot  be 
reviewed  in  detail  in  this  paper;  yet  any  sketch  would  fail  of  completeness 
that  did  not  at  least  mention  a  few  of  the  leading  discussions  that  so  power- 
full  v  tended  to  shape  the  very  existence  and  destiny  of  our  loved  common- 
wealth. INIyron  Norton,  chairman  of  the  committee  on  the  constitution,  pre-' 
sented  a  declaration  of  rights  borrowed  almost  entirely  from  the  constitutions 
of  New  York  and  Iowa ;  and  into  this  declaration  Shannon  of  Sacramento 
moved  to  insert  as  an  additional  section :  "Neither  slavery  nor  involuntary 
servitude  unless  for  punishment  of  crime,  shall  ever  be  tolerated  in  this  State." 
Surprising  as  it  may  seem,  this  most  vital  section  was  unanimously  adopted. 
The  preponderance  of  sentiment  in  the  convention,  and  much  more  in  the 
territory  at  large,  was  favorable  to  the  formation  of  a  free  State.  Fifteen 
members  had  come  from  slave-holding  States,  but  even  radical  Southerners 
were  compelled  to  admit  that  Californian  conditions  were  entirely  unfavorable 
to  the  introduction  of  slave  labor.  To  be  sure,  the  passage  of  this  section 
could  not  give  a  quietus  to  the  absorbing  question  of  slavery  extension,  in  all 
its  bearings  throughout  the  vast  newly  acquired  territory  known  as  Cali- 
fornia ;  but  the  supreme  step  had  been  taken,  the  word  had  been  uttered.  So 
profound  was  the  national  influence  of  this  vital  decision  that  it  is  hardly  an 
exaggeration  to  affirm  with  Dr.  Willey  that  it  was  the  "pivot-point  with  the 
slavery  question  in  the  United  States."  Our  great  commonwealth,  entering 
the  Union  as  the  sixteenth  free  State,  forever  destroyed  the  equilibrium 
between  North  and  South. 

Deep  interest  was  shown  in  the  question  of  separate  property  for  married 
women.  Some  of  the  arguments,  amusing  in  themselves,  throw  a  light  on 
the  social  status  of  the  country  at  that  time.  The  proposed  section  was  at 
length  adopted,  granting  the  w^ife  power  to  hold  separate  property.  This 
is  believed  to  be  the  first  time  that  such  power  was  granted  to  women  by  a 
State  constitution. 

The  debates  on  education  showed  a  warm  interest  in  the  subject,  and 
great  unanimity  in  favor  of  establishing  a  well-regulated  system  of  common 
schools.  Liberal  provision  was  therefore  made,  and  the  founding  of  a  State 
university  was  contemplated  by  setting  apart  the  income  of  lands. 

The  long  debate  on  the  question  of  California's  boundary  demands  more 
than  passing  notice.  This  was  by  far  the  most  animated  discussion  of  the 
entire  convention,  a  discussion,  moreover,  of  the  most  profound  significance 
as  the  most  strictly  sectional  contest  of  the  session.  At  the  very  last  the 
constitution  came  dangerously  near  being  totally  wrecked. 

The  California  ceded  to  the  United  States  was  vastly  greater  in  its  extent 
than  our  commonwealth,  embracing  as  it  did,  the  great  desert  east  of  the 
Sierra  Nevada  and  the  fertile  country  occupied  by  the  Mormons ;  in  other 
words,  including  all  the  present  territory  of  California.  Nevada.  Utah,  and 


History  of  the  Bench  and  Bar  of  California.  41 

Arizona,  and  extending  even  into  Wyoming,  Colorado,  and  New  Mexico, 
the  Rocky  mountains  forming  the  eastern  boundary.  The  committee  on 
boundary  reported  that  in  its  opinion  all  Mexican  California,  estimated  at 
448,691  square  miles,  was  entirely  too  vast  for  one  State,  and  recommended 
as  an  eastern  boundary  the  one  hundred  and  sixteenth  parallel ;  that  is,  an 
arbitrary  line  intersecting  eastern  Nevada.  Being  referred  to  the  com- 
mittee of  the  whole,  debate  opened  early  September  22,  and  continued  until  late 
at  night.  Sundry  amendments  proposing  various  boundary  lines  were  con- 
sidered, the  disagreement  widened,  differences  were  apparently  irreconcilable. 

There  was  no  disguising  the  fact  that  at  bottom  it  was  to  be  the  final 
struggle  of  the  pro-slavery  forces.  Gwin  proposed  the  eastern  line  lying 
between  New  Mexico  and  the  Mexican  cession,  and  took  a  leading  part  in  the 
contest  for  the  larger  boundaries.  Subsequent  revelations  seem  to  make  it 
perfectly  plain  that  the  pro-slavery  members  hoped  that  by  making  the  State 
so  large  it  would  soon  be  necessary  to  divide  it  by  an  east  and  west  line,  thus 
adding  one  State  to  the  South.  Francis  Lippitt,  writing  on  this  point,  said : 
"I  was  afterward  informed  that  this  boundary  line  had  been  adopted  at  the 
instigation  of  a  clique  of  members  from  the  Southern  States,  with  the  view  to 
a  subsequent  division  of  California  by  an  east  and  west  line  into  two  large 
States;  and  further  to  the  future  organization  of  the  southern  of  these  two 
State  as  a  slave  State — an  event  which  would  have  been  quite  certain." 

The  controversy  deepened.  Extreme  bitterness  began  to  be  manifested, 
for  the  friends  of  slavery  realized  that  this  was  their  last  hope  of  forming  a 
new  slave  State  from  the  newly  acquired  territory.  But  the  people  of  Cali- 
fornia had  asserted  themselves  in  unequivocal  terms,  the  convention  itself  had 
pronounced  positively  against  slavery,  the  intriguing  of  the  few  could  not 
avail.  On  October  8,  Hastings'  substitute,  proposing  an  intermediate  line 
intersecting  the  Nevada  desert,  was  quickly  adopted,  and  ordered  engrossed 
for  third  reading.  But  on  McDougal's  motion,  a  reconsideration  was 
secured,  and  the  advocates  of  the  Sierra  Nevada  boundary  again  grew  confi- 
dent of  success.  Once  more  were  they  to  be  disappointed ;  great  was  their 
consternation  when  the  committee  report  for  the  larger  boundary  was  again 
concurred  in  by  a  vote  of  twenty-nine  to  twenty-two.  Upon  the  announce- 
ment of  the  vote  the  utmost  excitement  and  confusion  prevailed.  McCarver 
moved  to  adjourn  sine  die.  Snyder  exclaimed,  ''Your  constitution  is  gone! 
Your  constitution  is  gone !''  The  wrecking  of  the  entire  work  of  the  con- 
vention was  narrowly  averted.  But  the  vote  to  engross  had  not  been  taken. 
By  dint  of  exceeding  activity,  the  defeated  party  succeeded  in  securing  a 
second  reconsideration  on  the  following  day.  A  number  of  delegates  had 
apparently  not  understood  all  the  bearings  of  their  afiirmative  votes.  Lip])itt 
went  from  a  sick  bed  under  laudanum  and  spoke  against  the  motion  to 
engross,  which  was  finally  lost ;  and  Jones'  proposition  fixing  the  present 
boundary  was  adopted  by  an  overwhelming  majority.  Thus  was  settled  the 
most  vexed  and  exciting  question  of  the  convention. 


42  History  of  the  Bench  and  Bar  of  California. 

The  arduous  labors  were  past,  the  constitution  was  completed.  It  was 
Saturday,  October  13.  1849,  ^^'^^  the  closing  events  were  highly  dramatic. 
With  the  dawning  of  that  day  of  beauty  and  sunshine  there  dawned  a  new 
era  for  California.  A  most  affecting  part  of  the  days  proceedings  occurred 
after  the  convention  had  adjourned  sine  die.  The  delegates  repaired  to  Gov- 
ernor Riley's  residence  in  a  body,  where,  after  a  cordial  greeting,  that  pioneer 
among  pioneers,  Captain  Sutter,  warmly  expressed  to  the  Governor  the  thctnks 
of  the  convention  for  his  aid  and  co-operation.  General  Riley  was  deeply 
affected ;  his  reply  was  "a  simple,  fervent,  and  eloquent  recital  of  a  patriotic 
desire  for  the  good  of  California."  "At  the  conclusion  of  General  Riley's 
remarks,"  continues  an  interesting  contemporaneous  account,  "three  cheers 
were  given  for  the  'Governor  of  California.'  three  for  Captain  John  A.  Sutter, 
and  three  more  for  the  new  State;  and  then,  after  partaking  of  the  refresh- 
ments provided  by  the  hospitality  of  the  Governor,  the  company  separated 
to  make  their  final  preparations  for  departure  to  their  respective  homes." 

The  salient  features  of  the  constitution  of  1849  ^^^  well  known.  It  was 
advanced  in  character,  liberal,  and  thoroughly  democratic.  The  achieve- 
ment illustrates  the  great  capacity  of  the  American  people  for  self-government 
under  the  most  trying  conditions.  The  document  embodied  the  principles 
of  modern  political  and  jurisprudential  philosophers  and  received  the  high- 
est commendations  from  all  sources  as  the  "embodiment  of  the  American 
mind,  throwing  its  convictions,  impulses,  and  aspirations  into  a  tangible, 
permanent  shape."  Contrary  to  the  expectation  of  some  of  its  framers.  it 
endured  for  thirty  years  as  the  fundamental  law  of  the  Empire  State  of  the 
Pacific.  All  honor  then  to  those  earnest,  loyal  pioneers  whose  devotion  led 
them  to  forsake  the  possibility  of  sudden  fortune  for  the  more  enduring,  more 
noble  work  of  building  a  great  commonwealth. 

California's  constitution  was  quickly  carried  to  every  town  and  camp  and 
rancho.  Candidates  for  office  took  the  field,  political  speeches  began  to  be 
heard  in  the  land,  and  with  alacrity  events  took  on  the  aspect  of  an  ordinary 
campaign.  A  stormy  election  day,  November  13,  was  responsible  for  the 
light  vote,  Init  as  Governor  Riley  had  anticii)ated.  the  constitution  was  ratified 
l)y  a  vote  that  was  almost  unanimous.  For  the  ofiice  of  Governor  Peter  H. 
Burnett  received  more  than  double  the  vote  given  his  leading  opponent,  and 
in  the  contest  for  Lieutenant  Governor  John  McDougal  was  successful. 
Edward  Gilbert  and  George  W  .  Wright  were  elected  Representatives  in  Con- 
gress. 

The  senators  and  assemljlymen-elect  met  in  San  Jose,  December  15,  on 
which  date  the  legislature  was  temporarily  organized.  On  Thursday,  Decem- 
ber 20,  1849,  the  State  government  of  California  was  established.  Governor- 
elect  Burnett  was  inaugurated,  and  Governor-General  Riley  issued  the  fol- 
lowing : 


History  of  the  Bench  and  Bar  of  California.  43 

PROCLAMATION. 
To  THE  People  of  California. 
A  new  Executive  having  been  elected  and  installed  into  office,  in  accordance  with 
the  provisions  of  the  Constitution  of  the  State,  the  undersigned  hereby  resigns  his 
powers  as  Governor  of  California.  In  thus  dissolving  his  official  connection  with  the 
people  of  this  country,  he  would  tender  to  them  his  heartfelt  thanks  for  their  many 
kind  attentions,  and  for  the  uniform  support  which  they  have  given  to  the  measures 
of  his  administration.  The  principal  object  of  all  his  wishes  is  now  accomplished — 
the  people  have  a  government  of  their  own  choice,  and  one  which,  under  the  favor 
of  divine  Providence,  will  secure  their  own  prosperity  and  happiness,  and  the  perma- 
nent welfare  of  the  new  State. 

Given  at  San  Jose,  California,  this  20th  day  of  December,  A.  D.  1849. 

B.    RILEY, 
Brevet  Brig.  Gen.,  U.  S.  A.,  and  Governor  of  California. 
By  the  Governor:     W.   H.  Halleck, 

Brevet  Captain  and  Secretary  of  State. 

Whatever  legal  objections  might  be  raised  to  putting  into  operation  a 
State  government  previous  to  the  approval  of  Congress,  General  Riley  judged 
that,  "these  objections  must  yield  to  the  obvious  necessities  of  the  case;  for 
the  powers  of  the  existing  government  are  too  limited,  and  its  organization 
too  imperfect,  to  provide  for  the  wants  of  a  country  so  peculiarly  situated, 
and  of  a  population  which  is  augmenting  with  such  unprecedented  rapidity." 
California  was  a  State,  but  had  not  gained  admission  to  the  Union.  Our 
delegation  to  the  Federal  government,  including  Fremont  and  Gwin,  who 
had  been  duly  elected  to  the  United  States  Senate,  and  Representatives  Gilbert 
and  Wright,  set  out  in  January,  1850,  for  Washington,  and  in  March  they 
laid  before  the  two  houses  certified  copies  of  the  new  constitution,  together 
with  their  credentials,  and  in  a  long  memorial  requested  "in  the  name  of  the 
people  of  California,  the  admission  of  the  State  of  California  into  the  Ameri- 
can Union." 

Meanwhile  the  question  of  the  admission  of  California  had  become  a 
topic  of  absorbing  interest  in  Congress.  Southern  statesmen  were  almost 
beside  themselves  at  the  imminent  prospect  of  losing  the  richest  country  of 
the  Mexican  cession.  The  question,  in  itself  of  the  gravest  difficultv,  was 
greatly  complicated  by  other  issues,  and  the  passions  that  were  aroused  seemed 
leading  to  certain  and  ominous  conflict,  when  Henry  Clay  determined  to 
effect  a  compromise.  The  result  is  known  to  the  world.  It  is  unnecessary 
to  review  the  details  of  that  memorable  struggle  over  the  Omnibus  Bill ;  let 
it  suffice  to  say  that  although  Congress  had  repeatedly  disappointed  the  people 
of  California  and  had  caused  long  and  vexatious  delay,  no  sound  argument 
based  on  facts  could  now  be  adduced  against  the  admission.  The  stern  logic 
of  facts  was  plainly  against  the  South,  even  though  the  Compromise  of  1850 
was  a  seeming  victory  for  the  slave  power.  The  exclusion  of  slavery  from 
California  was  a  rebuke  at  once  extremely  irritating  and  fraught  with  peril- 
ous import.  It  is  reported  how  that  Calhoun  invited  Gwin  to  an  interview, 
in  the  course  of  which  the  dying  Senatrir  and  cham])ion  of  the  South,  "in 
solemn  words  predicted,  as  an  effect  of  the  admission    [of  California]    the 


44  History  of  the  Bench  and  Bar  of  California. 

destruction  of  the  equilibrium  between  the  North  and  South,  a  more  intense 
agitation  of  the  slavery  question,  a  civil  war,  and  the  destruction  of  tlie 
South." 

Nevertheless,  the  debates  that  had  been  protracted  many  months,  coming- 
at  last  to  an  end,  the  California  bill  was  finally  passed  in  the  house,  Septem- 
ber 7,  by  a  vote  of  one  hundred  and  fifty  to  fifty-six,  and  two  days  later  the 
act  received  the  approval  of  the  President.  If,  then,  the  20th  of  December, 
1849,  IS  the  birthday  of  the  State  of  California,  September  9.  1850,  must 
forever  be  memorable  as  the  day  on  which  the  lusty  infant  was  adopted,  not 
without  protest,  into  the  great  unity  of  the  sisterhood  of  commonwealths, 
the  United  States  of  America. 

"O  California,  prodigal  of  gold, 

Rich  in  the  Treasures  of  a  wealth  untold, 

Not  in  thy  bosom's  secret  store  alone 

Is  all  the  wonder  of  thy  greatness  shown. 

Within  thy  confines  happily  combined, 

The  wealth  of  nature  and  the  might  of  mind, 

A  wisdom  eminent,  a  virtue  sage, 

Give  loftier  spirit  to  a  sordid  age." 

ROCKWELL  D.  HUNT,  Ph.  D., 

Professor   of   History   and    Political    Science, 

University  of  the  Pacific. 
San  Jose,  Cal. 


ADOPTION  OF  THE 
COMMON    LAW 

BY  THE  EDITOR 


j?9  !&  tSb  t&  G?3  dfe  c&  eSb  &  & 


HISTORY  of  the 
BENCH  and  BAR 
of  CALIFORNIA 


£5^e^e!^6^6^^e^«^.  e^e^ 


ADOPTION  of  the  COMMON  LAW 


In  his  first  message  to  the  legislature  at  the  first  session,  December  21, 
1849,  Gov.  Peter  H.  Burnett,  who  was  a  lawyer  from  Tennessee,  after  declar- 
ing that  he  had  given  the  subject  his  most  careful  attention,  recommended 
the  adoption  of  the  following  codes : 

1.  The  definition  of  crimes  and  misdemeanors  as  known  to  the  Common 

Law  of  England. 

2.  The  English  Law  of  Evidence. 

3.  The  English  Commercial  Law. 

4.  The  Civil  Code  of  Louisiana. 

5.  The  Louisiana  Code  of  Practice. 

He  took  occasion  to  say: 

These  codes,  it  is  thought,  would  combine  the  best  features  of  both  the  civil  and 
the  common  law,  and  at  the  same  time  omit  the  most  objectionable  portions  of  each. 
The  civil  code  of  Louisiana  was  compiled  by  the  most  able  of  American  jurists — con- 
tains the  most  extensive  and  valuable  references  to  authorities — has  undergone  no 
material  changes  for  the  last  twenty  years — and  for  its  simplicity,  brevity,  beauty, 
accuracy,   and   equity,   is  perhaps   unequalled. 

Its  provisions  almost  entirely  relate  to  general  subjects,  not  local,  and  would  be 
quite  applicable  to  the  condition  and  circumstances  of  the  State.  The  civil  law,  the 
basis  of  the  Louisiana  civil  code,  aside  from  its  mere  political  maxims,  and  .so  far 
only  as  it  assumes  to  regulate  the  intercourse  of  men  with  each  other,  is  a  system 
of  the  most  refined,  enlarged,  and  enlightened  i)rinciples  of  equity  and  justice.  So 
great  a  portion  of  the  cases  that  will  arise  in  our  courts,  for  some  years  to  come,  must 
be  decided  by  the  principles  of  the  civil  law,  that  the  study  of  its  leading  features  will 
be  forced  upon  our  judges  and  members  of  the  bar.  The  civil  code  of  Louisiana  being 
a  mere  condensation  of  the  most  valuable  portions  of  the  civil  law,  would  greatly 
lessen  the  labors  of  our  jurists  and  practitioners;  and  from  the  simplicity  and  yet 
comprehensive  nature  of  its  provisions,  a  general  knowledge  of  the  leading  principles 
of  the  law  iriight  the  more  readily  be  diffused  among  the  people.  A  sufficient  number 
of  copies  of  both  the  civil  code  and  the  code  of  practice  could  be  procured  in  New 
Orleans  at  a  much  less  cost  than  they  could  be  published  here. 


48  History  of  the  Bench  and  Bar  of  California. 

On  the  first  of  February  following,  Senator  David  F.  Douglass,  of  Stock- 
ton, who  was  to  be  some  years  later  Know  Nothing  secretary  of  State,  pre- 
sented in  the  senate  the  petition  of  certain  members  of  the  San  Francisco  bar, 
praying  that  the  legislature  "retain,  in  its  substantial  elements,  the  system  of 
the  civil  law,  as  proposed  by  His  Excellency  the  Governor,  in  preference  to  the 
English  Common  Law." 

The  petition  was  headed  by  John  W.  Dwinelle,  who  was  a  studious  man, 
destined  to  vAn  considerable  reputation  in  law  and  literature.  He  was  from 
New  York,  and  then  aged  32  years.  The  petition  was  read,  ordered  to  be 
printed,  and  referred  to  the  committee  on  the  judiciary. 

Horace  Hawes,  also  a  lawyer  from  New  York,  in  his  inaugural  address, 
as  prefect  of  the  district  of  San  Francisco,  delivered  before  the  ayuntamiento, 
or  town  council,  in  September,  1849,  had  observed  that  "the  laws  now  in  force 
in  this  country,  when  w'ell  understood,  may  not  be  found  so  inadequate  to  the 
purposes  of  good  government  as  has  generally  been  supposed.  It  is,  perhaps, 
the  abuses  and  maladministration  which  may  have  existed  under  the  former 
government,  rather  than  any  defect  in  the  laws  themselves,  which  have  brought 
them  into  disrepute." 

The  civil  law,  already  intrenched  on  the  field  of  action,  and  thus  powerfully 
recruited,  seemed  to  have  as  secure  a  tenure  here  as  in  Louisiana. 

A  week  prior  to  the  coming  of  this  petition  into  the  senate,  Hon.  J.  C. 
Brackett  of  Sonoma,  introduced  into  the  assembly  the  following  resolution : 

That  the  committee  on  the  judiciary  be  and  they  are  hereby  instructed  to  report 
to  this  house  a  brief  and  comprehensive  act,  substantially  enacting  that  the  common 
law  of  England,  and  all  statutes  and  acts  of  parliament  down  to  a  certain  reign,  or 
to  some  year  of  a  certain  reign,  which  are  of  a  general  nature,  not  local  to  that  king- 
dom, excluding,  if  advisable,  any  named  statute  or  any  particular  portion  of  any  named 
statute;  which  common  law  and  statutes  are  not  repugnant  to  or  inconsistent  with  the 
constitution  of  the  United  States,  the  constitution  of  this  State,  and  statute  laws  that 
now  are  or  hereafter  may  be  enacted,  shall  henceforth  be  the  rule  of  action  and  decision 
in  the  State  of  California. 

On  motion  of  the  author,  the  resolution  was  laid  on  the  table  for  future 
consideration. 

In  the  senate,  on  February  27th,  the  judiciary  committee  submitted  its 
report  on  the  so-called  San  Francisco  petition.  The  committee  was  of  one 
mind.  It  was  composed  of  Elisha  O.  Crosby  of  Sacramento,  Nathaniel  Bennett 
of' San  Francisco,  and  T.  A.  Vermeule  of  Stockton.  The  report  was  signed  by 
the  first-named  only,  as  chairmanj  and  it  came  to  be  regarded  generally  as  his 
composition.  Many  have  declared  that  Judge  Bennett  was  the  author,  how- 
ever. A  mystery  really  attached  to  this  question.  The  editor,  about  1878, 
had  a  dispute  with  Geo.  W.  Tyler  about  the  authorship  of  this  historic  paper, 
Tyler  asserting  that  Judge  Crosby  had  told  him  that  he  (Crosby)  was  the 
author.  Afterwards,  Judge  Tyler  informed  the  editor  that  he  had  seen  Judge 
Crosby  again,  and  that  the  latter  had  disclaimed  the  authorship,  and  credited 
the  same  to  Judge  Bennett. 


History  of  the  Boich  and  Bar  of  California.  49 

Many  years  after  this,  in  1894,  we  requested  Judge  Crosby  to  give  us  some 
notes  of  his  life,  and  we  received  from  him  in  his  own  hand,  and  have  pre- 
served, among  other  statements,  the  following:  "I  was  the  author  of  the 
report  and  bill  adopting  the  common  law,  the  bill  organizing  the  Supreme  and 
District  Courts,  etc.,  etc." 

But  as  to  the  bill,  the  printed  journal  credits  the  authorship  as  we  give  it 
hereinafter.  The  report  was  probably  the  joint  product  of  Judge  Crosby  and 
Judge  Bennett. 

Elisha  Oscar  Crosby  was  born  in  Tomkins  county.  New  York  (as  he  told 
us,  in  1894)  when,  in  his  old  age,  he  was  holding  the  office  of  justice  of  the 
peace  in  Alameda.  He  was  born  in  1818.  He  was  admitted  to  the  bar  of 
the  New  York  Supreme  Court  July  14,  1843.  Coming  to  California  in  1849 
he  was  admitted  to  the  bar  by  the  Supreme  Court  here  on  July  19.  185 1.  He 
was  admitted  to  the  bar  of  the  United  States  Supreme  Court  at  Washington, 
on  December  6,  1865.  He  was  a  member  of  our  first  constitutional  convention, 
1849;  prefect  of  the  Sacramento  district  in  the  same  year;  and  a  State  senator 
at  the  first  and  second  sessions  of  the  legislature.  From  1852  to  i860,  he 
practiced  law  in  San  Francisco.  President  Lincoln  appointed  him  minister 
to  Guatemala,  and  he  held  the  office  from  March  22,  1861  to  1865.  He  died 
in  Alameda  a  few  years  ago,  nearly  four  score  years  of  age. 

This  committee  report  (whoever  wrote  it)  ought,  perhaps,  to  be  set  forth 
in  full  in  this  History ;  but  we  will  give  the  more  salient  parts  as  follows : 

The  petition,  praying,  as  it  does,  that  the  legislature  will  retain,  in  its  substantial 
elements,  the  system  of  the  civil  law,  distinctly  presents  the  alternative  of  the  adoption 
of  the  common,  or  of  the  civil  law,  as  the  basis  of  the  present  and  future  jurisprudence 
of  this  State.  A  choice  between  these  two  different,  and  in  many  respects  conflicting 
systems,  devolves  upon  this  legislature;  and,  we  think,  we  do  not  over-estimate  the 
importance  of  the  subject,  in  expressing  our  conviction  that  this  choice  is  by  far  the 
most  grave  and  serious  duty  which  the  present  legislature  will  be  called  upon  to  per- 
form. It  is,  in  truth,  nothing  less  than  laying  the  foundation  of  a  system  of  laws, 
which,  if  adapted  to  the  wants  and  wishes  of  the  people,  will,  in  all  probability  endure 
through  generations  to  come, — which  will  control  the  immense  business  transactions 
of  a  great  community, — which  will  direct  and  guide  millions  of  human  beings  in  their 
personal  relations, — protect  them  in  the  enjoyment  of  liberty  and  property, — guard 
them  through  life,  and  dispose  of  their  estates  after  death.  Actuated  by  these  consid- 
erations, and  impressed  with  the  necessity  of  mature  deliberation  and  an  unbiased 
decision,  your  committee  have  felt  it  their  duty  to  submit  to  the  indulgence  of  the 
senate  a  more  full  and  detailed  report  upon  the  matter  referred  to  them,  than  they 
should  otherwise  have  felt  themselves  justified  in  doing. 

After  observing  that  the  committee  had  ascertained  that  the  San  Francisco 
bar  then  embraced  about  one  hundred  members,  and  that  a  largely  attended 
bar  meeting  had  just  recommended  tlie  common  law,  whereas  the  petition  in 
favor  of  the  civil  law  was  signed  by  only  eiglitcen  attorneys,  tlie  rcj^ort  mo- 
ceeded  : 

But  before  entering  upon  the  subject  in  detail,  we  would  premise  that  no  one  for 
a  moment  entertains  the  idea  of  establishing  in  California  the  whole  body  of  either 


50  History  of  the  Bench  and  Bar  of  California. 

the  common  or  the  civil  law.  There  are  in  each  principles  and  doctrines,  political,  civil 
and  criminal,  which  are  repugnant  to  American  feelings,  and  inconsistent  with  Ameri- 
can institutions.  Neither  the  one  nor  the  other  ever  has  been,  or  ever  can  be,  unquali- 
fiedly adopted  by  any  one  of  the  United  States.  Thus,  in  Louisiana,  where  the  civil 
law  prevails,  and  in  the  rest  of  the  States,  in  which  the  common  law  is  recognized, 
great  and  radical  additions,  retrenchments,  and  alterations  have  been  made  in  the  par- 
ticular system  which  each  has  taken  as  the  foundation  of  its  jurisprudence.  The  Con- 
stitution of  the  United  States  swept  away  at  once  the  entire  political  organization  as 
well  of  the  common  as  of  the  civil  law.  The  several  State  constitutions  make  still 
further  inroads,  not  only  into  the  political,  but  also  into  the  civil  and  criminal  depart- 
ments of  both  systems ;  and  the  statute  law  of  each  State  eradicates  many  harsh  doc- 
trines, and  abolishes  many  oppressive  and  tyrannical  provisions,  and  in  their  place 
substitutes  positive  rules  of  action,  milder  and  more  enlightened  in  their  nature,  more 
applicable  to  our  political  organization,  and  more  congenial  with  the  cultivated  feel- 
ings and  liberal  institutions  of  our  people.  But  still  the  great  body  of  each  system 
remains  untouched.  Such  is  the  wonderful  complexity  of  human  affairs — a  complexity 
which  must  always  increase  more  and  more  in  proportion  to  the  advance  of  commerce, 
of  civilization,  and  of  refinement — that  of  the  immense  multitude  of  questions  which 
are  brought  before  your  courts  for  adjudication,  but  very  few  arise  under,  or  are 
dependent  upon,  or  can  be  controlled  by,  constitutions  or  express  statutory  laws. 
Examine  the  reports  of  the  different  States,  Louisiana  amongst  the  rest,  and  it  will 
be  found  that  a  precise  rule  has  been  laid  down  by  statute  for  scarcely  a  tithe  of  the 
cases  which  the  courts  have  been  called  upon  to  decide;  and  should  the  futile  attempts 
be  made  to  provide,  in  advance,  for  every  contingency  which  may  occur,  your  volumes 
of  legislation  would  be  increased  to  a  number  that,  to  apply  sacred  language  to  a  pro- 
fane subject,  "the  world  would  not  contain  them." 

Tlie  report  next  entered  into  an  elaborate  statement  conveying  a  general 
idea  of  the  two  great  systems  of  jurisprudence,  and  then  particularly  contrasted 
them  as  follows : 

To  commence,  then,  with  the  domestic  relations.  The  civil  law  regards  husband 
and  wife,  connected  it  is  true  by  the  nuptial  tie,  yet  disunited  in  person,  and  with 
dissevered  interests  in  property.  It  treats  their  union  in  the  light  of  a  partnership, 
no  more  intimate  or  confiding  than  an  ordinary  partnership  in  mercantile  or  commer- 
cial business.  Whereas  the  common  law  deems  the  unseen  bond  which  unites  husband 
and  wife,  as  so  close  in  its  connection,  and  so  indissoluble  in  its  nature,  that  they 
become  one  in  per.son.  and  for  most  purposes  one  in  estate.  At  the  same  time,  it  puts 
the  burden  of  maintenance  and  protection  where  it  rightfully  belongs,  and  makes  the 
husband,  as  Providence  designed  he  should  be,  in  truth  and  reality  the  head  of  the 
household.  The  concessions  which  it  makes  to  the  wife,  in  respect  to  property,  by 
compelling  the  payment  of  her  debts  and  vesting  her  with  an  estate  in  dower,  are  a 
full  compensation  for  the  sacrifices  which  it  requires  her  to  make,  and  an  ample 
equivalent  for  the  conununion  of  goods  allowed  her  by  the  civil  law.  The  result 
is,  that  in  no  country  has  the  female  sex  been  more  highly  respected  and  better  pro- 
vided for — nowhere  has  woman  enjoyed  more  perfect  legal  protection,  or  been  more 
elevated  in  society;  and  nowhere  has  the  nuptial  vow  been  more  sacredly  observed, 
or  the  nuptial  tie  less  often  dissevered,  than  in  the  common  law  countries — England 
and  the  United  States. 

The  civil  law  holds  the  age  of  majority  in  males,  for  most  of  the  ordinary  pur- 
poses of  life,  at  twenty-five  years.  Even  after  this,  the  son  continues  in  many  respects 
subject  to  the  parental  authority  until  it  is  dissevered  in  one  of  six  specified  modes. 
This  system  retains  man  in  a  continued  state  of  pupilage  and  subordination  from 
earliest  infancy,  until  in  some  cases  his  locks  become  hoary  with  age.  But  the  common 
law  absolves  the  age  of  twenty-one  from  parental  restraint,  and  clothes  it  with  the 
complete  panoply  of  manhood.  It  bids  the  youth  go  forth  into  the  world,  to  act,  to 
strive,  to  suffer. — an  equal  with  his  fellow  man — to  put  forth  his  energies  in  the  service 


History  of  the  Bench  and  Bar  of  California.  51 

of  his  country,  or  in  the  eager  strife  for  the  acquisition  of  wealth  or  the  achievement 
of  renown.  Hence,  under  the  latter  system,  the  activity,  the  impetuousity,  the  talents 
of  early  manhood,  stimulated  by  fresh  aspirations  of  ambition,  or  love  of  gain,  are, 
at  the  earliest  practicable  period,  put  under  requisition  and  brought  into  exercise,  in 
developing  the  resources,  and  adding  to  the  wealth  and  glory  of  a  State;  whilst,  under 
the  former,  they  stagnate  for  lack  of  sufficient  inducement  to  action,  and  are  to  a  great 
degree  lost. 

Whilst  the  fundamental  principles  of  domestic  society  thus  differ  in  the  two 
systems,  an  equal  diversity  runs  throughout  all  the  deductions  therefrom ;  and  we  are 
convinced  that,  in  the  several  relations  above  noticed,  and  also  in  that  of  guardian 
and  ward,  contrasted  with  tutor  or  curator  and  pupil,  there  are  nicer  distinctions  and 
a  greater  multiplicity  of  rules  and  qualifications  in  the  civil  law  than  in  the  common 
law. 

Again,  in  relation  to  mercantile  transactions :  In  the  civil  law  the  purchaser  of 
property  may,  within  the  period  of  a  certain  limitation,  in  some  countries,  four,  and 
in  others,  two  years,  come  into  court  and  claim,  under  the  doctrine  of  lesion,  that  the 
goods  purchased  by  him  were  worth  only  a  part  of  the  price  which  he  paid  therefor. 
Thus  A.  sells  property  to  B.  in  a  perfectly  fair  sale,  without  deceit  or  false  representa- 
tion. After  the  expiration  of  some  months,  or  it  may  be  years,  B.  brings  suit,  and 
alleges  that  he  paid  twice  the  value  of  the  property,  and  compels  A.  to  make  restitu- 
tion. But  the  common  law  in  such  cases,  where  no  fraud  appears,  and  no  false  repre- 
sentations are  made,  leaves  each  party  to  act  upon  his  own  responsibility,  and  for  his 
own   interest,  as  his  judgment  shall   dictate 

If  time  and  space  permitted,  and  it  would  not  be  occupying  too  much  attention 
of  the  senate,  we  might  trace  the  same  general  principle  of  distinction  through  various 
other  departments  of  the  two  systems,  through  their  provisions  for  the  tenure  and 
transfer  of  real  estate,  for  the  transmission  of  inheritances  and  successions,  for  the 
execution  and  validity  of  last  wills  and  testaments,  and  the  distribution  of  property 
in  pursuance  of  them,  and  for  the  enumeration  of  the  powers  and  duties  of  executors, 
administrators,  and  trustees  ;  but  we  must  pass  them  by,  and  hasten  to  other  consid- 
erations  

We  by  no  means  concede  the  position  that  the  civil  law  is  in  full  force  in  this 
State  at  the  present  time.  It  is  extremely  uncertain  to  what  extent  it  ever  did  prevail. 
Situated  at  so  great  a  distance  from  the  Mexican  capital,  occupying  months  in  the 
interchange  of  communications  with  that  central  point  of  law  and  legislation,  con- 
nected with  it  by  the  fragile  tie  of  common  descent,  rather  than  by  any  intimate  com- 
munion of  interests  or  sympathy  of  feeling,  exposed  to  frequent  revolutions  of  the 
general  and  departmental  governments,  finding  but  little  stability  in  the  Mexican  con- 
gress, little  convenience  for  the  promulgation  of  its  laws,  and  less  power  to  enforce 
them,  the  people  of  California  seem  to  have  been  governed  principally  by  local  cus- 
toms, which  were  sometimes  in  accordance  with  civil  law  and  sometimes  in  contraven- 
tion of  it.  However  this  may  be,  it  is  very  certain  that  it  now  prevails  to  but  a  limited 
extent,  and  equally  certain  that  the.  common  law  controls  most  of  the  business  transac- 
tions of  the  country.  The  American  people  found  California  a  wilderness — they 
have  peopled  it;  they  found  it  without  commerce  or  trade — they  have  created  them; 
they  found  it  without  courts — they  have  organized  them;  they  found  it  destitute  of 
officers  to  enforce  laws — they  have  elected  them;  they  found  it  in  the  midst  of  anar- 
chy— they  have  bid  the  warring  elements  be  still,  have  evoked  order  out  of  confusion, 
and  from  the  chaotic  mass  have  called  forth  a  fair  and  beautiful  creation.  Through- 
out all  this  they  have  taken  the  common  law,  the  only  system  with  which  they  were 
acquainted,  as  their  guide.  Their  bargains  have  been  made  in  pursuance  of  it — their 
contracts,  deeds,  and  wills  have  been  drawn  up  and  executed  with  its  usual  formalities 
— their  courts  have  taken  its  rules  to  govern  their  adjudications — their  marriages  have 
been  solemnized  under  it — and,  after  death,  their  property  has  been  distributed  as  it 
prescribes.  Are  you  to  hold  all  or  a  great  portion  of  these  things  as  naught?  Will 
you  overturn  or  invalidate  the  immense  business  transactions  of  a  great  conununity? 
And  yet  to  this  must  you  come,  if  you  say  that  the  civil  law  is  in  force  throughout 
the  State. 


52  History  of  the  Bench  ajui  Bar  of  California. 

The  petitioners  ask,  in  substance,  for  the  adoption  of  the  English  definition  of 
crimes,  the  English  law  of  evidence,  the  English  commercial  law,  and  the  civil  code 
of  Louisiana.  Without  doubting  that  a  harmonious  and  symmetrical  system  might 
be  deduced  from  them  all,  by  the  long  and  patient  labor  of  years,  of  men  fully  adequate 
to  the  task,  we  must,  nevertheless,  be  allowed  to  suggest  our  opinion,  that  were  we  to 
attempt  to  adopt  them,  as  they  are,  without  more  labor  devoted  to  reconciling  their 
jarring  provisions  than  any  legislature  would  have  either  the  will  or  the  time  to 
bestow,  we  should  have  a  system  of  laws  which  would  be  no  system  at  all — a  system 
of  contradictions  and  absurdities — a  rule  here  conflicting  with  a  rule  there — the  same 
principles  thrice  reiterated,  and  each  time  in  different  terms,  and  in  a  new  shape. 

After  a  number  of  other  reasons,  the  committee  recommended  that  the 
courts  should  ])e  governed  in  their  adjuchcations  Ijy  the  Engiish  common  law. 
"as  received  and  modified  in  the  United  States ;  in  other  words,  by  the  Amer- 
ican Common  Law." 

The  report  was  accepted,  and,  on  motion  of  Senator  Elcan  Heydenfeldt, 
of  San  Francisco,  brother  of  the  jurist,  Solomon  Heydenfeldt,  it  was  ordered 
that  500  copies  be  printed. 

In  the  assembly  a  week  later,  Mr.  Brackett,  pursuant  to  notice,  and  in  the 
spirit  of  his  resolution  before  quoted,  introduced  a  "Bill  Concerning-  the  Com- 
mon Law,"  which  was  a  bill  adopting  that  system  substantially.  On  the  next 
day,  Edmund  Randolph,  of  San  Francisco,  a  Virginian,  moved  to  refer  the 
bill  to  a  select  committee,  with  instructions  to  substitute  "the  English  law  of 
evidence,  and  English  commercial  law,  as  understood  in  the  courts  of  the 
United  States."  This  was  defeated  by  a  vote  of  ten  ayes  to  sixteen  noes,  the 
majority  including  Mr.  Brackett,  A.  P.  Crittenden,  and  the  since  distinguished 
Judge,  E.  W.  McKinstry. 

A.  P.  Crittenden,  a  Kentuckian,  who  afterwards  held  for  a  long  period  a 
place  in  the  front  rank  of  the  State  bar,  and  who  was  killed  by  Mrs.  Laura 
Fair  on  the  Oakland  ferry  ])oat,  November  3,  1870,  then  moved  to  refer  the 
bill  to  a  select  committee,  with  instructions  to  substitute  the  following  ever- 
memorable  words : 

"The  Common  Law  of  England,  so  far  as  it  is  not  repugnant  to  or  incon- 
sistent with  the  Constitution  of  the  United  States  or  the  Constitution  or  laws 
of  the  State  of  California,  shall  be  the  rule  of  decision  in  all  the  courts  of 
this  State." 

This  was  agreed  to.  On  the  same  day  Mr.  Crittenden  as  chairman  of  the 
appointed  committee,  reported  the  substitute  above,  and  it  was  adopted  by  a 
vote  of  seventeen  to  six,  Mr.  Randolph  being  among  the  noes. 

It  was  ordered,  without  dissent,  that  the  title  of  the  bill  be  changed  from 
"Concerning  the  Common  Law,"  to  "Adopting  the  Common  Law." 

In  the  senate,  April  12,  Hon.  W.  D.  Fair,  Whig  senator  from  San  Joaquin, 
husband  of  Laura  Fair  before  named,  from  the  judiciary  committee,  to  whom 
had  been  referred  the  assembly  bill,  now  entitled  "An  .Act  Adopting  the  Com- 
mon Law,"  reported  the  same  without  amendment,  and  the  bill  was  passed 
at  once,  the  rules  having  been  suspended  for  that  purpose.     There  w^as  no 


I 


History  of  the  Bench  and  Bar  of  California.  53 

opposition  and  the  roll  was  not  called.    The  bill  became  a  law,  by  the  signature 
of  the  Governor,  on  the  12th  of  April,  1850. 

The  words  of  this  act  were  incorporated  into  the  political  code  of  the  State, 
comprising  section  4468  thereof,  but  it  is  provided  in  all  of  the  codes,  which 
took  effect  on  January  i,  1873,  (section  4  of  each  code)  as  follows: 

"The  rule  of  the  common  law,  that  statutes  in  derogation  thereof  are  to 
be  strictly  construed,  has  no  application  to  this  code.  The  code  establishes 
the  law  of  this  State  respecting  the  subjects  to  which  it  relates,  and  its  pro- 
visions and  all  proceedings  under  it  are  to  be  liberally  construed,  with  a  view 
to  effect  its  objects  and  to  promote  justice." 

THE  EDITOR. 


THE    TREATY    OF 
GUADALUPE  HIDALGO 

and 

PRIVATE  LAND  CLAIMS 


HON.  JOHN   CURREY 


John    Currey 


I  !;?3  •j'a  &  ofe  &  t?3  uo 


HISTORY  of  the 
BENCH  and  BAR 
of  CALIFORNIA 


^&''l^'=r^'^i?  9:'  ; - 1? 


TREATY  o/  GUADALUPE  HIDALGO 
and  PRIVATE  LAND  CLAIMS 


At  the  date  of  the  treaty  between  Mexico  and  the  United  States,  known 
as  the  Treaty  of  Guadalupe  Hidalgo,  California  was  sparsely  settled  by  a 
people  who  were  mainly  Alexican  citizens,  and  who  for  the  most  part  were 
engaged  in  pastoral  occupations. 

The  treaty  was  ratified  and  exchanged  in  May,  1848.  and  on  the  4th  of 
July  in  that  year  was  made  public  by  the  proclamation  of  President  Polk, 
in  which  he  declared  that  he  "caused  the  said  treaty  to  be  made  public  to 
the  end  that  the  same  and  every  clause  and  article  thereof  may  be  observed 
and  fulfilled  with  good  faith  by  the  United  States  and  the  citizens  thereof.'' 

By  this  treaty  Mexico  ceded  to  the  United  States  the  territories  of  Alta 
California  and  New  Mexico  and  the  country  lying  north  of  the  Gila  river. 
The  Treaty  contained  stipulations  providing  for  the  protection  and  security 
of  the  inhabitants  of  the  ceded  territories,  in  the  free  enjoyment  of  their 
liberty,  property  and  religion.  Though  stipulations  of  the  character  here 
mentioned  were  not  absolutely  essential  for  the  purposes  declared,  they  were 
such  as  are  usual,  and,  it  may  be  said,  always  required  by  the  nation  ceding 
territory,  and  readily  accepted  by  the  nation  acquiring  the  same.  *'Tt  is 
the  usage  of  all  nations  of  the  world,"  said  the  Coiu't  in  the 
Arredondo  case  (6  Peters,  712),  "when  territory  is  ceded,  to  stipulate  for  the 
property  of  its  inhabitants.  An  article  to  secure  tliis  object  so  deservedly 
held  sacred  in  the  view  of  policy  as  well  as  of  justice  and  humanity,  is  always 
required  and  never  refused." 

Stipulations  of  this  kind  render  certain  the  obligations  of  the  new  govern- 
ment to  the  people  transferred  to  a  new  sovereignty,  who  are  able  to  better 
understand  an  express  promise  than  an  obligation  which  is  imposed  by  the 
law  of  nations  of  which  they  are  generally  ignorant:  and  besides  this,  the 
inhabitants  of  the  ceded  territory,  being  promised  protection  in  the  treaty 
itself,  are  thereby  inspired  with  confidence  in  and  loyalty  to  the  government 
of  which  thev  necessarily  become  a  constituent  portion. 


58  History  of  the  Bench  and  Bar  of  California. 

Vattel  says,  "Every  treaty  must  be  interpreted  as  the  parties  understood 
it  when  the  act  was  proposed  and  accepted." 

The  Treaty  of  Guadalupe  Hidalgo,  by  its  eighth  and  ninth  articles, 
provided  for  making  such  of  the  inhabitants  of  the  territories  as  might  so  elect, 
citizens  of  the  United  States,  and  also  for  their  protection,  and  further  for  the 
protection  of  those  Mexicans  residing  in  the  territories,  who  might  elect  to 
remain  citizens  of  the  Mexican  Republic,  in  the  free  enjoyment  of  their 
liberty,  property  and  religion,  without  restriction.  These  stipulations  were 
in  efifect  as  ample  and  comprehensive  as  the  stipulations  of  the  Third  Article 
in  the  treaty  between  France  and  the  United  States,  by  which  the  latter 
government  acquired  the  Louisiana  Territory  in  1803;  and  in  substance  as 
full  as  provided  in  the  treaty  by  which  Spain  ceded  to  the  United  States  the 
territories  of  the  two  Floridas  in  1819. 

As  early  as  1824  the  Mexican  Republic  enacted  a  law  providing  for 
the  granting  of  lands  in  her  territories  to  her  citizens  who  would  accept  and 
occupy  them.  This  law  was  supplemented  by  a  system  of  regulations  adopted 
in  1828,  to  facilitate  the  granting  of  lands,  not  to  exceed  a  specified  amount 
to  any  one  person.  The  law  of  1824  and  the  regulations  of  1828  provided  a 
mode  or  system  consisting  of  successive  proceedings  and  steps,  by  which 
grants  of  land  could  be  made.  In  a  few  instances  all  the  steps  of  the  pro- 
ceedings, essential  to  the  complete  transfer  of  the  title  in  full  property,  were 
performed  and  fulfilled,  so  that  in  these  cases  the  particular  grantee  became 
the  owner  by  perfect  title — title  in  fee  simple  absolute — of  the  land  described 
and  covered  by  his  perfected  title.  But  the  great  majority  of  land  claims, 
grants  or  titles,  as  they  were  indifferently  denominated,  were  imperfect  and 
inchoate  claims,  grants  or  titles ;  and  they  were  in  this  condition  for  the  most 
part,  when  California  was  ceded  to  the  United  States. 

From  this  statement  it  will  be  observed  that  at  the  date  of  the  treaty, 
there  were  two  classes  of  land  claims  in  California,  both  derived  from  the 
former  government ;  one  of  which  consisted  of  perfect  titles — titles  in  fee 
simple  absolute — by  which  the  holders  thereof  were  seized,  as  owners  in  full 
property  of  the  lands  granted ;  the  other  class  consisted  of  equitable  claims  to 
lands,  the  title  to  which  had  not  been  fully  consummated.  They  were  denom- 
inated incipient,  inchoate,  or  imperfect  grants  or  titles. 

It  will  be  noticed  that  holders  of  the  last  kind  of  claims  were  not  the 
owners  of  the  lands  claimed,  for  complete  titles  thereto  had  not  passed  to 
them  from  the  Mexican  government.  To  such  lands  the  Mexican  government 
held  the  legal  title,  When  the  cession  of  California  was  made  to  the  United 
States,  in  full  property,  sovereignty  and  dominion.  "By  accepting  the  cession, 
the  United  States  put  itself  in  the  place  of  the  former  sovereignty  and  became 
invested  with  all  its  rights,  subject  to  all  its  concomitant  obligations  to  the 
inhabitants.  Both  were  regulated  by  the  law  of  nations,  according  to  which 
the  rights  of  property  are  protected,  even  in  the  case  of  a  conquered  country, 


History  of  the  Bench  and  Bar  of  California.  59 

and  held  sacred  and  inviolaljle.  when  it  is  ceded  Ijy  treaty  with  or  without 
any  stipulation  to  such  effect."  So  said  the  court  in  Strother  against  Lucas 
(i2  Peters,  435). 

The  passage  here  quoted  was  repeated  and  applied  to  the  California  case 
of  Teschmacher  against  Thompson  (18  Cal.  23-24)  by  Mr.  Chief  Justice 
Field,  who  held  that  in  respect  to  land  claims  which  were  of  an  equitable 
nature,  but  as  yet  unperfected,  it  w'as  the  conceded  duty  of  the  United  States 
to  provide  the  mode  and  means  for  their  confirmation  and  location,  and  to 
grant  legal  titles  therefor  to  the  persons  entitled  in  equity  to  such  lands.  He 
said,  "By  the  law  of  nations  those  rights,  in  the  language  of  our  Supreme 
Court,  were  'sacred  and  inviolable,'  and  the  obligation  passed  to  the  new 
government  to  protect  and  maintain  them.  The  obligation  was  political  in  its 
character,  binding  on  the  conscience  of  the  new  government,  and  to  be  exe- 
cuted by  proper  legislative  action,  when  the  requisite  protection  could  not 
be  afforded  by  the  ordinary  course  of  judicial  proceedings  in  the  established 
tribunals  or  by  existing  legislation." 

Here  the  learned  Chief  Justice  distinguished  between  the  legislative  and 
judicial  authority  as  to  the  subjects  of  their  respective  jurisdictions.  The 
legislative  authority  purely  political,  was  to  be  exercised  and  executed  by 
appropriate  legislation  for  the  requisite  protection  of  property  ivhen  such  pro- 
tection could  not  he  afforded  in  the  ordinary  course  of  judicial  proceedings 
in  the  established  tribunals  of  the  country.  Perfected  titles  are  the  titles 
which  can  be  afforded  "the  requisite  protection"  in  the  ordinary  course  of 
judicial  proceedings.  Not  so  in  respect  to  titles  of  an  incipient,  inchoate  and 
unperfected  character.  These  are  within  the  jurisdiction'  of  the  political 
department  of  the  government. 

The  obligations  of  our  government  to  the  people  of  the  ceded  territories, 
in  respect  to  their  land  claims,  and  which  was  to  be  performed  and  fulfilled 
by  the  political  department  of  the  government  by  appropriate  legislation,  was 
in  the  very  nature  of  the  subject,  limited  to  the  class  of  claims  which  needed 
the  aid  of  the  government  to  render  them  perfect  titles.  A  title  already 
perfect  needed  no  such  aid.  Tt  was  not  in  the  power  of  Congress  to  make 
titles  already  perfect  better  titles ;  nor  was  it  within  the  constitutional  power 
of  Congress  to  impair  or  destroy  perfect  titles. 

It  is  quite  manifest  that  at  the  time  of  the  passage  of  the  Act  of  Con- 
gress of  March,  1851,  entitled,  "An  Act  to  ascertain  and  settle  the  private 
land  claims  in  the  State  of  California,"  it  was  the  general  belief  in  Congress 
that  all  land  claims  in  California,  derived  from  the  Spanish  and  Mexican 
governments,  were  inchoate  and  imperfect,  mere  equitable  claims,  which  our 
government,  by  treaty  stipulations  and  the  law  of  nations,  was  bound  to 
protect.  It  is  reasonable  to  suppose  that  Congress,  in  this  belief,  passed  the 
Act  of  March,  185 1. 

The  jurisdiction  of  Congress  in  the  premises  is  found  in  Section  3  of 
Article  TV  of  the  Constitution,  in  these  words:     "The  Congress  shall  have 


/ 

60  History  of  the  Bench  and  Bar  of  California. 

power  to  dispose  of  and  make  all  needful  rules  and  regulations  respecting  the 
territory  or  other  property  belonging  to  the  United  States."  It  is  admitted 
that  Congress  had  power  to  make  all  laws  necessary  and  proper  for  carrying 
into  execution  this  power,  which  appears  to  be,  to  make  disposition  of,  and  to 
make  needful  rules  and  regulations  respecting  the  property  of  the  territories 
and  other  property  belonging  to  the  United  States.  This  provision  relates 
solely  to  the  subject  matter  of  public  property.  It,  in  no  sense,  affects  private 
property,  nor  is  there  found  in  the  Constitution  any  provision  which  gives  to 
Congress  power  to  dispose  of  the  property  of  private  persons,  either  directly 
or  indirectly,  by  the  enactment  of  a  law  for  the  purpose,  or  which  shall  have 
such  effect  by  any  means  whatever,  except  by  process  of  condemnation  for 
public  use  with  just  compensation  therefor. 

The  Act  of  185 1  provided  for  the  creation  of  a  board  of  commissioners 
for  the  purpose  declared  in  the  act.  The  commissioners  were  authorized  to 
receive  petitions  for  the  confirmation  of  private  land  claims  and  to  hear  and 
examine  documentary  evidence  and  the  testimony  of  witnesses  and  to  decide 
as  to  the  validity  or  invalidity  of  such  claims.  The  eighth  section  of  the  act 
provided  that  "Each  and  every  person  claiming  lands  in  California,  by  virtue 
of  any  right  or  title  derived  from  the  Spanish  or  Mexican  government,  shall 
present  the  same  to  said  commissioners  when  sitting  as  a  board,  etc. ;"  and 
by  the  thirteenth  section  of  the  same  act,  Congress  pronounced  judgment 
against  all  who  should  fail  to  present  their  claims  to  the  commissioners  as 
required,  in  the  following  words :  "All  lands,  the  claims  to  which  shall  not 
have  been  presented  to  the  said  commissioners  within  two  years  after  the 
date  of  this  act.  shall  be  deemed,  held  and  considered  a  part  of  the  public 
domain  of  the  United  States.'' 

The  words  of  the  eighth  section,  viz.,  "Any  right,  or  title,"  and  the  words 
of  the  thirteenth  section,  "All  lands,  the  claims  to  which  shall  not  have  been 
presented,"  are  sufBciently  comprehensive  to  include  all  claims,  perfect  and 
imperfect,  as  to  title;  and  if  Congress  had  the  power  under  the  Constitution 
and  under  the  treaty,  of  equal  force  and  dignity  with  the  Constitution  itself, 
to  require  as  provided  in  the  eighth  section,  and  to  declare  the  penalty,  as 
provided  in  the  thirteenth  section,  there  could  be  no  doubt  as  to 
the  disastrous  consequences  to  the  holders  of  perfected  titles  to  lands  derived 
from  the  former  government,  who  had  declined  the  submission  of  their  claims 
to  the  jurisdiction  of  the  commissioners. 

It  should  be  remembered  that  the  Treaty  of  Guadalupe  Hidalgo  became, 
at  the  time  of  its  ratification  and  exchange,  an  integral  part  of  the  supreme 
law  of  the  land,  binding  upon  each  and  every  department  of  the  go\-ernment, 
which  the  political  branch  of  the  government  could  not  and  cannot  alter  or 
abrogate,  either  directly  or  indirectly,  either  by  expression  or  implication, 
so  as  to  disturb  or  destroy  vested  rights  of  property  secured  by  it.  or  brought 
into  existence  under  or  in  pursuance  of  it. 


I 


History  of  flic  Bciuii  and  Bar  of  California.  61 

Notwithstanding  the  stipulations  of  the  treaty  and  the  Constitution,  which 
declares  that  no  person  shall  be  deprived  of  life,  liberty  or  property  without 
due  process  of  law,  and  that  private  property  shall  not  be  taken  for  public 
use  without  just  compensation,  and  other  provisions  of  the  organic  law 
affecting  the  subject,  the  Supreme  Court,  in  the  case  of  Boteller  et  al.  against 
Dominguez,  decided  the  eighth  and  thirteenth  sections  of  the  Act  of  185 1  to 
be  constitutional  in  their  application  to  perfect  titles,  to  the  same  exent  as  to 
titles  or  grants  of  an  inchoate  and  imperfect  character. 

It  is  respectfully  submitted  that  this  decision  is  not  supported,  either  upon 
principle  or  by  authority. 

An  act  of  the  legislature  is  not  due  process  of  law.  This  has  been  so  held 
in  many  decisions  of  the  courts  and  by  elementary  writers  on  the  subject. 
"Law  of  the  land,  due  process  of  law,"  said  Chancellor  Kent,  "means  Inw  in 
its  regular  course  of  administration  through  courts  of  justice."  Another 
great  judge  (Chief  Jtistice  Ruffin,  of  North  Carolina)  said,  "The  law  of  the 
land  does  not  mean  merely  an  act  of  the  legislature,  for  that  construction 
would  abrogate  all  restrictions  on  legislative  authority.  The  clause  means 
that  statutes,  which  would  deprive  a  citizen  of  the  rights  of  person  or  property, 
without  a  regular  trial  according  to  the  course  and  usage  of  the  common  law, 
would  not  be  a  law  of  the  land  in  the  sense  of  the  Constitution." 

Such  being  the  law,  how  is  it  that  Dominguez  could  be  held,  through  the 
operation  of  the  Act  of  1851.  to  have  lost  his  lands  which  he  possessed  under  a 
perfect  title  derived  from  Mexico?  The  title  of  Dominguez.  as  it  appeared 
before  the  court,  was  a  perfect  title,  and  so  the  court  conceded  it  to  have  been 
at  the  date  of  the  treaty  of  cession,  and  so  in  effect  held  it  to  be.  until  he  lost  it, 
by  failing  to  submit  it  to  the  jurisdiction  and  judgment  of  the  commissioners. 

The  Supreme  Court,  during  the  period  when  Marshall  was  its  Chief  Justice 
and  for  some  years  afterwards,  had,  at  various  times,  occasion  to  deal  with 
questions  of  private  rights  of  property  of  the  inhabitants  of  the  ceded  territories 
of  Louisiana  and  Florida,  existing  at  the  respective  dates  of  these  cessions. 
The  most  of  such  property  rights  were  of  an  imperfect  and  inchoate  nature, 
but  there  were  instances  calling  for  the  expression  of  opinic^ns  in  relation  to 
rights  of  property  which  had  become  perfected,  in  all  of  which  the  court,  in 
effect,  declared  them  to  be  beyond  the  power  of  Congress  to  im|)air  or  destroy. 

In  Strother  against  Lucas,  the  coiu't,  in  speaking  of  the  stipulation  of  the 
Louisiana  treaty  for  the  protection  of  the  people  of  the  ceded  country,  said, 
"Without  it  the  titles  of  the  inhaliitants  would  remain  as  valid  under  the  new 
government  as  under  the  old  ;  and  these  titles,  at  least  so  far  as  they  are  con- 
summate, might  be  asserted  in  the  courts  of  the  I'nited  States  independent 
of  the  treaty  stipulation."  Tn  the  case  of  Clark  (8  Peters,  445),  Mr.  Chief 
Justice  Marshall,  in  s])eaking  of  the  a])i)ointment  of  boards  of  commissioners 
to  ascertain  the  validity  and  location  of  grants  of  lands  in  Florida,  said,  "For 
this  pur])ose  boards  of  commissioners  were  apixiintcd  with  extensive  powers, 


62  Hislory  of  the  Bench  and  Bar  of  California. 

and  great  progress  was  made  in  the  adjustment  of  claims.  But  neither  the 
laze  of  nations  nor  the  faith  of  the  United  States  zconld  justify  the  legislature 
in  authori:;iiig  these  boards  to  annul  pre-existing  titles,  which  consequently 
might  he  asserted  in  the  ordinary  courts  of  the  country  against  any  grantee  of 
the  American  government."  And  in  the  case  of  Wiggins  (14  Peters,  350), 
the  court  said  that  "The  perfect  titles  made  by  Spain  before  the  24th  of  Janu- 
ary, 1818,  within  the  territory,  are  intrinsically  valid  and  exempt  from  the 
provisions  of  the  eighth  article,  is  the  established  doctrine  of  this  court  and 
they  need  no  sanction  from  the  legislative  and  judicial  de])artments  of  the 
country." 

In  Maguire  against  Tyler  (8  Wallace,  650),  the  court  said,  "Complete 
titles  to  lands  in  the  territories  ceded  by  France  to  the  United  States,  under  the 
treaty  concluded  at  Paris  on  the  thirteenth  day  of  April,  1803,  needed  no 
legislative  confirmation,  as  they  ■zeere  fully  protected  by  the  third  article  of  the 
treaty  of  cession." 

The  eighth  and  ninth  articles  of  the  Treaty  of  Guadalupe  Hidalgo,  as 
finally  ratified  and  exchanged,  mean  the  same  as  the  third  article  of  the  Louis- 
iana treaty,  as  represented  and  explained  by  the  commissioners  of  the  United 
States  to  the  Mexican  minister  of  foreign  affairs  at  the  city  of  Queretaro,  on 
the  26th  day  of  May,  1848.  This  appears  by  a  protocol,  signed  by  such 
commissioners  and  the  Mexican  minister  on  that  day. 

It  is  believed  there  are  no  decisions  of  the  Supreme  Court  holding  a  differ- 
ent doctrine  on  the  subject  under  consideration,  from  those  already  cited, 
except  some  of  an  obiter  dicta  character  in  relation  to  the  construction  of  the 
Act  of  185 1,  until  the  decision  of  the  case  of  Dominguez. 

The  Supreme  Court  of  California  always  regarded  the  private  land  claims 
existing  in  the  territories  ceded,  at  the  date  of  the  treaty  of  Guadalupe  Hidalgo, 
as  standing"  on  the  same  ground  as  those  of  like  character  derived  under  the 
Louisiana  and  Florida  treaties,  and  that  by  the  Treaty  of  Guadalupe  Hidalgo 
such  private  land  claims  were  as  fully  guaranteed  protection  as  like  claims 
were  guaranteed  protection  under  the  Louisiana  and  Florida  treaties,  and  that 
the  decisions  of  the  Supreme  Court  of  the  United  States  in  those  cases  were 
applicable  to  the  California  cases.  Perfected  titles,  it  was  ])elieved  by  the  Cali- 
fornia courts,  upon  principle  and  authority,  needed  no  aid  from  Congress  to 
make  them  what  they  already  were,  but  that  the  holders  of  such  titles  and  the 
owners  of  the  lands  covered  by  them,  were  competent  to  assert  their  rights 
in  the  estal)lished  courts  of  the  country,  as  might  be  necessary,  against  all 
intruders  and  even  against  any  adverse  action  of  the  L^nited  States  and  its 
grantees. 

In  Estrada  vs.  Murphy  (19  Cal.,  269),  Mr.  Chief  Justice  Field  suggested 
that  doubts  might  exist  as  to  the  validity  of  the  legislation  of  Congress,  so  far 
as  it  required  the  presentation  to  the  board  of  land  commissioners  of  claims 
when  the  lands  were  held  by  perfect  titles  acquired  under  the  former  govern- 


History  of  the  Bench  and  Bar  of  Califoriiia.  63 

ment.  In  Gregory  vs.  McPherson  (13  Cal.,  571),  the  court,  in  alluding  to  a 
perfected  title,  held  that  no  forfeiture  accrued  of  such  a  title  by  a  failure  to 
present  it  to  the  board  of  commissioners. 

The  Supreme  Court  of  the  United  States  in  Beard  vs.  Federy  (3  Wal- 
lace 490),  per  Field,  justice,  said,  "By  the  Act  of  March  3,  1851,  the  govern- 
ment has  declared  the  conditions  under  which  it  will  discharge  its  political 
obligations  to  Mexican  grantees.  Tt  has  there  required  all  claims  to  land  to  be 
presented  within  two  years  from  its  date,  and  declared  in  effect  that  if,  upon 
such  presentation  they  are  found  by  the  tribunal  created  for  their  consideration, 
and  by  the  courts  on  appeal  to  be  valid,  it  will  recognize  and  confirm  them, 
and  take  such  action  as  will  result  in  rendering  them  perfect  titles.  But  it  has 
also  declared  in  effect,  by  the  same  act,  that  if  the  claims  be  not  thus  presented 
within  the  period  designated,  it  will  not  recognize  nor  confirm  them,  nor  take 
any  action  for  their  protection,  but  that  the  claims  will  be  considered  and 
treated  as  abandoned.''  And  then  the  court  further  said,  "It  is  not  necessary 
to  express  any  opinion  of  the  validity  of  this  legislation  in  respect  to  perfect 
titles  acquired  under  the  former  government.  Such  legislation  is  not  subject  to 
any  constitutional  objection  so  far  as  it  applies  to  grants  of  an  imperfect  char- 
acter, ivhich  require  further  action  of  the  political  department  to  render  them 
perfect." 

It  thus  appears  that  the  court  was  not  ready  in  1865  to  hold  the  Act  of 
Congress  constitutionally  valid  in  so  far  as  perfect  titles  could  be  deemed  to  be 
affected  by  it. 

In  Waterman  vs.  Smith  (13  Cal.,  419-420),  the  same  learned  Justice  had 
occasion  to  interpret  and  construe  the  15th  section  of  the  Act  of  1851.  The 
question  in  that  case  arose  as  to  the  effect  of  a  final  confirmation  and  a  patent 
issued  thereon,  and  the  interests  of  third  persons  claiming  the  land  in  contro- 
versy under  an  inchoate  and  imperfect  grant  which  had  been  confirmed,  but 
for  which  no  patent  had  been  granted.  The  section  here  mentioned  provides, 
"that  the  final  decisions  rendered  by  said  commissioners  or  by  the  District  or 
Supreme  Court  of  the  United  States,  or  any  patent  to  be  issued  thereon  under 
this  act,  shall  be  conclusive  between  the  United  States  and  the  said  claimants 
only,  and  shall  not  affect  the  interests  of  third  persons."  In  disposing  of  the 
question  the  court  said,  "The  patent  is  conclusive  evidence  of  the  right  of  the 
patentee  to  the  land  described  therein,  not  only  as  between  iiimself  and  the 
United  States,  but  as  between  himself  and  a  third  person,  who  has  not  a  super- 
ior title  from  a  source  of  paramount  proprietorship."  And  the  court  further 
said,  "The  third  persons  against  whose  interests,  by  the  15th  section  of  the 
Act  of  1 85 1,  the  final  confirmation  and  patent  are  not  conclusive,  are  those 
whose  titles  at  the  time  are  such  as  to  enable  them  to  resist  successfully  any 
action  of  the  government  in  respect  to  it."  This  decision  was  followed  by  a 
number  of  others  subsequently  rendered  by  the  same  eminent  jurist,  while 
chief  justice  of  that  court,  in  equally  cogent  language. 


64 


History  of  the  Bench  and  Bar  of  California.  I 


The  decisions  of  the  same  court,  which  were  made  after  the  time  of  Mr. 
Justice  Field,  are  in  accord  with  the  decisions  of  the  State  court  referred  to, 
and  also  upon  principle  in  accord  with  the  decisions  of  the  United  States  in 
like  cases. 

It  will  be  noticed  that  the  doctrine  declared  in  Waterman  against  Smith, 
is  the  same  as  in  Clark's  case  in  8th  Peters,  where  the  Chief  Justice  spoke  of 
titles  which  could  "be  asserted  in  the  ordinary  courts  of  the  country  against 
any  grantee  of  the  American  Government." 

Recognizing  the  correctness  of  the  construction  given  the  15th  section  of 
the  Act  of  1851.  in  Waterman  vs.  Smith  and  Teschmacher  vs.  Thompson,  the 
Supreme  Court  of  the  United  States,  in  Beard  vs.  Federy  (3  Wall,  493),  said, 
"The  term,  'third  person,'  as  there  used,  does  not  embrace  all  persons  other 
than  the  United  States  and  the  claimants,  but  only  those  who  hold  superior 
titles,  such  as  will  enable  them  to  resist  successfully  any  action  of  the  govern- 
ment in  disposing  of  the  property." 

The  Supreme  Court  of  California  was  called  upon  to  meet  the  question 
directly,  for  the  first  time  in  Minturn  vs.  Brower  (24  Cal.,  645),  and  there 
held  the  legislation  of  Congress  to  be  ineffectual  to  impair  or  destroy  perfect 
titles  for  failure  to  present  them  to  the  commissioners  for  their  examination 
and  judgment  thereon.  This  decision  was  followed  through  a  period  of  nearly 
twenty-five  years,  when  in  December,  1887,  the  Court  in  a  full  and  carefully 
considered  opinion,  in  Phelan  vs.  Poyoreno  (74  Cal.,  448),  reviewed  the 
whole  subject,  reaching  the  same  conclusion  as  in  Minturn  vs.  Brower;  and 
then  came  before  the  court  at  the  same  term  the  case  of  Dominguez,  which 
was  decided,  as  were  the  two  cases  last  mentioned.  These  decisions  were 
the  logical  sequence  of  the  doctrines  declared  in  many  cases  which 
came  before  the  Supreme  Court  of  the  United  States  in  respect  to  grants 
existing  in  Louisiana  and  Florida,  at  the  respective  dates  of  the  treaties  ceding 
those  countries  to  the  United  States,  and  also  necessarily  resulting  from  the 
interpretation  of  the  15th  section  of  the  Act  of  1851,  as  found  in  Waterman 
vs.  Smith  and  other  California  cases,  and  in  Beard  vs.  Federy  (3  Wallace, 
491),  and  also  resulting  from  the  provisions  of  the  Constitution  which  limit 
Congress  to  the  disposition  of  government  property,  and  which  further  declares 
that  no  person  shall  be  deprived  of  liberty  or  property  without  due  process  of 
law,  and  that  private  property  shall  not  be  taken  for  public  use  without  just 
compensation. 

If  there  be  titles  derived  from  a  source  of  paramount  proprietorship,  which 
can  be  interposed  in  successful  resistance  to  any  action  of  the  government  or  its 
grantees,  what  are  they  in  their  nature  and  quality,  unless  they  be  perfect 
titles?  Is  a  title  in  fee  simple  absolute,  in  common  law  phrase,  a  better  title 
than  a  perfect  title  under  the  laws  of  Mexico,  when  that  government  was  the 
absolute  sovereign  proprietor  of  the  lands  granted?  There  can  be  but  one 
answer  to  this  question. 


History  of  the  Bench  and  Bar  of  California.  65 

The  title  of  Dominguez  to  the  tract  of  land  Las  Virgenes  was  a  perfect 
title  at  the  date  of  the  cession,  as  appeared  by  the  record  before  the  court  in  the 
action,  and  so  the  court,  by  Mr.  Justice  Miller,  admitted  it  to  be  at  that 
date,  but  gave  force  and  effect  to  the  legislative  judgment  and  decree,  declaring 
that  the  same  became  a  part  of  the  public  domain,  because  its  owner  failed 
to  submit  his  title  thereto  to  the  commissioners  for  their  examination  and 
judgment  respecting  it.  Is  not  this,  in  effect,  a  confiscation  of  the  property 
of  Dominguez,  depriving  him  of  it  without  due  process  of  law,  taking  it  from 
him  for  the  use  of  the  government,  without  rendering  for  it  a  just  compen- 
sation ? 

Involved  in  the  decision  of  the  court,  holding  that  a  perfect  title  must  needs 
be  presented  to  the  commissioners  to  save  it  from  forfeiture  to  the  government, 
is  an  admission  that  such  was  a  perfect  title  in  fee  simple  absolute  at  the  date 
of  the  cession,  and  at  the  time  of  the  passage  of  the  Act  of  1851,  and  continued 
to  be  so  until  the  end  of  the  period  prescribed  for  its  presentation  to  the  com- 
missioners. The  examination  and  judgment  of  the  commissioners  could  not 
make  the  title  a  better  title  than  it  had  been  and  was,  for  that  was  impossible. 
What  could  they  have  done  more  than  to  inspect  and  examine  the  muniments 
of  the  title,  which  were  of  record,  importing  absolute  verity?  If  they  had 
proceeded  farther  and  decreed  it  to  be  a  perfect  title,  such  decree  would  have 
been  idle  and  inconsequential.  Nothing  could  come  of  such  decree  to  alter, 
change,  or  give  greater  validity  to  the  title,  than  it  had  at  the  beginning  of 
the  proceeding.  Nothing  could  be  gained  from  a  patent  of  the  United  States. 
Such  patent  could  not  make  the  title  better  than  it  had  been,  and  was  from 
the  time  it  became  complete  and  perfect  under  the  laws  of  Mexico.  The 
patent  record  was  no  better  as  a  record  than  the  one  already  existing  in  the 
archives  of  the  government,  easily  accessible  to  all  concerned.  No  beneficial 
end  could  possibly  be  attained  by  the  presentation  of  such  a  title  to  the  com- 
missioners, and  their  confirmation  of  it  followed  by  a  government  patent,  for 
the  reason  that  the  owner  of  such  a  title  had  already  a  perfect  title  to  the  land, 
which. was  duly  recorded. 

Between  parties  litigating  as  to  which  has  the  right  to  the  possession  of 
certain  real  property,  depending  upon  a  legal  title  from  a  source  of  paramount 
proprietorship,  the  party  holding  such  title  must  prevail.  In  such  a  case  there 
is  a  tangible  result  as  distinguished  from  a  result  purely  ideal. 

If  it  be  said  the  Act  of  185 1  contemplated  and  provided  for  a  contest  and 
litigation  between  the  owner  of  land  by  legal  title  in  full  property,  and  the 
United  States,  as  to  which  party  should  have  and  hold  the  land  in  controversy, 
the  question  arises  as  to  the  power  of  the  United  States,  one  of  the  parties,  in 
its  political  capacity  to  create  a  special  tribunal  with  authority  to  hear  and 
try,  upon  documentary  evidence,  and  the  testimony  of  witnesses,  and  to  deter- 
mine by  decree  as  to  the  rights  of  the  respective  litigants  to  the  land  in  contro- 
versy, by  a  proceeding,  not  in  due  course  of  law,  but  entirely  independent  of 


66 


History  of  the  Bench   and  Bar  of  California. 


the  right  of  a  trial  by  a  jury,  a  right  secured  by  the  Constitution,  which  pro- 
vides that  "in  all  suits  at  common  law.  where  the  \alue  in  controversy  exceeds 
twenty  dollars,  the  right  of  trial  by  jury  shall  be  preser\-ed."'  Such  an  action 
or  suit  is  exclusively  of  common  law  cognizance,  as  distinguished  from  the 
jurisdiction  of  courts  of  equity,  and  the  jurisdiction  conferred  on  the  commis- 
sioners by  the  Act  of  185 1,  in  regard  to  lands  claimed  by  private  persons  by 
virtue  of  any  right  or  title  of  an  inchoate,  imperfect,  or  equitable  nature, 
deri\-ed  from  the  Spanish  or  Mexican  government. 

Tt  is  believed  that  no  one  can  or  will  say  the  scheme  devised  by  Congress 
for  the  trial  of  perfected  titles  /;/  rem,  was.  in  any  just  sense,  a  trial  of  such 
title,  in  accordance  with  the  "law  of  the  land — due  course  of  law — due  process 
of  law." 

The  decision  in  the  DomingTiez  case  is  placed  on  two  grounds.  The  first 
ground  is  that  of  governmental  policy  respecting  the  public  lands.  The 
learned  Justice  says:  "It  is  clear  that  the  main  purpose  of  the  statute  was 
to  separate  and  distinguish  the  lands  which  the  United  States  owned  as  prop- 
erty *  *  *  from  the  lands  which  belonged,  either  equitably  or  legally, 
to  private  parties,  under  a  claim  of  right  derived  from  the  Spanish  or  Mexican 
governments."  And  he  further  says,  "This  was  the  purpose  of  the  statute; 
and  it  was  equally  important  to  the  object  which  the  United  States  had  in 
the  passage  of  it,  that  claims  under  perfect  grants,  under  the  Mexican  govern- 
ment, should  be  established  as  that  imperfect  claims  should  be  established  or 
rejected."  To  support  this  view  of  the  purpose  of  the  statute,  several  expres- 
sions of  opinion  by  justices  of  the  court  are  cited,  two  of  which,  the  most 
emphatic,  may  be  here  noticed.  The  first  is  the  case  of  United  States  vs. 
Fossat  (21  Howard.  447),  and  the  second,  the  case  of  Moore  vs.  Steinbach, 
(127.  U.  S.  R.,  81). 

The  Fossat  case  in\-olved  the  consideration  of  an  inchoate  grant  or  imper- 
fect title,  which  the  claimant  had  presented  to  the  commissioners,  and  Mr. 
Justice  Campbell,  who  prepared  the  opinion  in  the  case,  discoursed  at  some 
length  as  to  the  necessity  existing  for  the  presentation  of  all  land  claims  held 
under  perfect  titles  as  well  as  those  held  under  imperfect  grants,  to  the  board 
of  commissioners  for  their  examination  and  judgment,  saying,  "The  effect  of 
the  inquiry  and  decisions  of  these  tribunals  upon  the  matter  submitted  is  final 
and  conclusive.  If  unfavorable  to  the  claimant,  the  land  shall  be  deemed, 
held  and  considered  a  part  of  the  public  domain  of  the  United  States" ;  and 
continuing  the  learned  Justice  said,  "All  claims  to  lands  withheld  from  the 
board  of  commissioners  during  the  legal  term  for  presentation,  are  treated  as 
non-existent,  and  the  land  as  belonging  to  the  public  domain." 

In  Moore  vs.  Steinbach,  Mr.  Justice  Field  said  the  defendants  had  not 
accjuired  a  perfect  title  to  the  lands  which  they  claimed.  He  then  proceeded 
to  consider  the  obligation  which  the  owner  of  land  by  perfect  title  in  full 
property,  was  under,  to  present  his  claim  to  the  board  of  land  commissioners 


History  of  the  Bench  a>td  Bar  of  Califoniia.  67 

for  examination,  and  continuing,  he  said.  "The  ascertainment  of  existing 
claims  was  a  matter  of  vital  importance  to  the  government,  in  the  execution 
of  its  policy,  respecting  the  public  lands,  and  Congress  might  well  declare 
that  a  failure  to  present  a  claim  should  be  deemed  an  abandonment  of  it,  and 
that  the  lands  covered  by  it  should  be  considered  a  part  of  the  public  domain." 

These  expressions  of  opinion  are  entitled  to  respectful  consideration  as 
emanating  from  able  and  learned  lawyers ;  but  they  can  hardly  be  esteemed 
judicial  determinations  as  to  the  necessity  of  presenting  a  perfect  title  for  the 
examination  and  judgment  of  the  commissioners,  for  the  reason  that  that 
question  was  not  involved  in,  or  necessary  to.  the  decision  of  the  cases  named, 
as  each  of  the  parties  in  those  actions  had  presented  his  claim  to  the  lands 
in  question  to  the  board  of  commissioners. 

Mr.  Justice  Campbell  held  that  all  claims  to  land  withheld  from  the  board 
"are  treated  as  non-existent  and  the  land  as  belonging  to  the  public  domain." 

Treating  a  perfect  title  as  "non-existent"  must  be  deemed  an  attempted 
violation  of  a  vested  right.  The  fact  of  the  existence  of  a  title  in  fee  simple 
to  land  cannot  be  destroyed  by  a  sweep  of  the  pen,  nor  by  the  obiter  dictum 
of  a  learned  judge.  It  would  be  well  to  remember  that  a  fact  cannot  be 
destroyed. 

Mr.  Justice  Field  held  in  the  Moore  case  that  a  failure  to  present  a  claim 
to  lands,  subsisting  in  a  perfect  title,  might  well  be  declared  by  Congress  an 
abandonment  of  the  claim,  and  that  the  lands  covered  by  the  title  should  be 
considered  a  part  of  the  public  domain.  Would  not  such  a  declaration  and 
such  a  determination  be  of  the  nature  of  a  judgment,  emanating  from  the 
political  branch  of  the  government,  in  effect  condemning  the  land  of  the 
owner  to  government  use,  without  due  process  of  law,  and  without  paying  him 
for  it?  How  could  the  legislature  declare  and  decree  that  the  owner  of  land 
in  full  property  should  be  deemed  to  have  abandoned  it.  when  he  was  in  the 
actual  and  exclusive  seizin  and  possession  of  it,  and  when  it  further  appears 
that  he  had  been  in  such  actual  seizin  and  possession  ever  since  it  was  granted 
to  him  by  the  Mexican  government? 

Tt  is  true  the  government,  in  the  execution  of  its  policy,  looking  to  the 
separation  of  its  own  lands  from  those  belonging  to  private  persons,  might 
adopt  to  that  end  such  means  as  Congress  might  deem  proper,  provided  the 
means  were  within  its  constitutional  authority.  But  as  already  observed,  the 
taking  from  the  owner  in  fee  simple  his  property  for  the  accomj^lishment  of 
this  policy,  without  paying  him  for  it.  is  unconstitutional. 

There  exists  a  lawful  means,  a  judicial  proceeding,  by  which  the  end  in 
view  can  be  attained.  If  to  attain  such  end  it  may  be  for  the  general  welfare 
to  take  from  the  owner  his  land,  let  the  government  condemn  it  in  a  lawful 
way,  paying  for  it  a  just  compensation.  This  was  the  doctrine  laid  (Unvn 
by  Mr.  Justice  Miller  himself  in  the  case  of  the  Fertilizing  Company  vs.  Hyde 
Park,  (97  U.  S.  R.,  659). 


68  History  of  the  Botch  and  Bar  of  California. 

The  Constitution  makes  it  the  duty  of  the  courts  of  the  country  to  prevent 
the  violation  of  constitutional  rights  of  property  by  the  other  departments  of 
the  government,  by  refusing  to  enforce  laws  which  provide  for  the  violation 
of  such  rights.  This  duty  has  been  exercised  time  and  again,  as  the  demands 
of  justice  have  required. 

If  the  main  purpose  of  the  Act  of  Congress  was  to  separate  and  distinguish 
the  lands  of  the  government  from  the  lands  of  private  owners,  there  could 
not  exist  any  necessity  for  the  accomplishment  of  such  purpose  in  respect  to 
lands  held  under  perfect  titles,  because  such  lands  are  already  separated  and 
distinguished  from  the  government  domain.  Lands  held  under  such  titles 
are  well  and  exactly  bounded  and  described  by  proper  muniments  of  title,  as 
much  so  as  they  could  be  by  government  survey  or  by  stone  walls  standing 
upon  and  marking  their  boundaries. 

The  exigencies  of  war  and  circumstances  of  extreme  danger  to  life,  arising 
from  prevailing  pestilences  and  famines,  and  the  danger  to  life  and  property 
from  destructive  conflagrations  and  floods,  and  the  like,  may  justify  a  resort 
to  extreme  measures  for  the  safety  and  welfare  of  the  people  concerned.  Such 
measures  may  result  in  the  taking  or  destroying  of  private  property  without 
rendering  for  it  immediate  compensation,  but  it  is  maintained  with  confidence 
as  a  general  truth  that  nothing  short  of  extreme  and  urgent  necessities,  would 
justify  the  government  in  the  execution  of  a  policy  of  the  kind  mentioned 
in  the  Moore  case,  in  the  taking  of  the  property  of  an  individual  for  public 
use  or  for  government  use,  without  paying  for  it  a  just  price.  A  policy  so 
carried  into  execution  strikes  at  and  uproots  the  very  foundation  of  property 
rights,  rendering  the  man  of  wealth  today  a  pauper  tomorrow. 

Is  there  any  one  who  believes  that  if  all  private  land  claims  in  California 
had  been  held  under  perfected  titles  at  the  date  of  the  cession,  the  Act  of  185 1 
would  have  been  passed  ?  Would  there  in  such  case  have  existed  any  reason 
or  necessity  for  a  commission  to  ascertain  the  location,  boundaries  and  extent 
of  such  private  lands,  in  order  to  enable  the  government  to  distinguish  and 
know  the  extent  and  limits  of  its  own  lands?  It  is  reasonable  to  suppose  that, 
had  all  land  claims  subsisted  in  perfect  titles.  Congress  would  have  concluded 
there  was  no  necessity  for  such  an  act  as  that  of  March,  185 1,  and  further, 
that  it,  as  the  political  department  of  the  government,  would  have  decided 
that  it  had  no  jurisdiction  in  the  premises. 

In  the  Louisiana  and  Florida  cases  of  private  land  claims,  as  also  in  Cali- 
fornia, as  to  like  class  of  claims  of  an  inchoate  and  imperfect  character,  there 
existed  a  necessity  for  their  ascertainment,  settlement  and  location.  This 
was  especially  so  in  California,  for  the  grants  of  the  character  here  mentioned 
were  of  tracts  of  specified  quantity  within  areas  of  undefined  and  generally 
of  much  larger  extent,  and  the  equitable  grantee  was  not  able  to  say,  with  any 
degree  of  exactness,  where  were  the  boundaries  of  his  land ;  and  hence  there 
existed  a  necessity  for  government  action,  not  only  to  give  him  a  title  in  fee 


History  of  the  Bench  and  Bar  of  California.  69 

simple  to  his  land,  but  to  give  it  a  location  by  proper  metes  and  bounds,  which 
would  separate  and  distinguish  it  from  the  public  domain.  The  reason  for  the 
rule  and  policy  of  the  government,  in  respect  to  inchoate  and  imperfect  grants 
of  land  of  uncertain  and  undefined  extent  and  boundaries,  cannot  be  said  to 
apply  to  lands  held  under  perfect  titles,  with  boundaries  fixed  and  known,  as 
they  must  be,  in  the  case  of  lands  covered  by  perfect  titles. 

It  is  a  maxim  of  the  law  that  when  the  reason  for  a  rule  of  law  ceases,  the 
law  itself  must  cease.  In  the  case  of  a  perfect  title  there  is  no  reason  for  the 
application  and  enforcement  of  the  policy  relied  on  for  the  justification  of  the 
re([uirement  to  present  to  the  commissioners  claims  to  lands  subsisting  in 
perfect  titles,  for  reasons  already  stated. 

Besides  the  foregoing  answer  to  the  policy  assumed  to  be  essential  to  the 
government,  to  enable  it  to  discover  where  are  its  own  lands,  it  is  submitted 
that  Congress  had  no  right  or  authority,  as  the  political  department  of  the 
government,  to  interfere  in  any  manner  with  vested  rights  of  property,  which 
did  not  stand  in  need  of  its  aid. 

If  Congress  has  such  power,  whence  is  it  derived?  Certainly  not  from 
the  grant  of  power  found  in  Section  3  of  Article  IV  of  the  Constitution.  The 
grant  of  power  in  that  article  is  to  dispose  of  the  public  domain  and  other 
property  of  the  United  States,  and  that  only. 

The  second  ground  for  holding  the  eighth  and  thirteenth  sections  of  the 
Act  of  1 85 1  constitutional  as  the  same  affect  perfect  titles,  seems  to  depend 
mainly  on  the  question  of  inconvenience,  which  would  result  from  the  assertion 
of  such  titles  by  their  owners,  if  allowed  exemption  from  the  provisions  of 
those  sections  of  the  statute.  The  learned  Justice  says  that,  although  it  has 
been  generally  supposed  that  nearly  all  the  private  land  claims  in  California, 
derived  from  the  former  governments,  had  been  passed  upon  by  the  commis- 
sioners, "yet  claims  are  now  often  brought  forward,  which  have  not  been  so 
passed  upon  by  the  board,  and  were  never  presented  to  it  for  consideration. 
And  if  the  proposition  on  which  the  Supreme  Court  of  California  decided  the 
case  is  a  sound  one,  namely,  that  the  board  constituted  under  the  act  had  no 
jurisdiction  of,  and  could  not  by  their  decree  affect  in  any  manner  a  title  which 
had  been  perfected  under  the  laws  of  the  Mexican  government,  prior  to  the 
transfer  of  the  country  to  the  United  States,  it  is  impossible  to  tell  to  what 
extent  such  claims  of  perfected  titles  may  be  presented,  even  in  cases  where 
the  property  itself  had  been  by  somebody  else  brought  before  the  board  and 
passed  upon." 

This  objection  to  the  assertion  of  right  and  title  to  lands  owned  and  held  in 
full  property,  seems  not  to  require  any  extended  consideration.  Is  it  too  much 
to  say  it  is  a  fallacious  and  impotent  objection?  Can  there  be  any  reason  why 
he  who  owned  the  land  at  the  date  of  the  cession  of  the  country,  and  who  had 
been  lawfully  seized  of  it  ever  since,  should  not  retain  it.  or  if  ousted  of  it, 
should  not  be  allowed  to  recover  its  possession,  and  have  the  enjoyment  of  it 
under  the  laws  of  the  land  ?     It  is  impossible  to  understand  how  the  owner 


70  History  of  the  Bench  ami  Bar  of  California. 

of  land  by  perfect  title  can  be  held  to  have  lost  his  right  to  it  because  another 
person,  without  right  or  title,  had  secured  to  himself  a  confirmation,  based  on 
a  false  claim  thereto,  and  a  patent  from  the  government,  which  had  no  right 
or  title  to  such  land. 

Titles  of  superior  and  paramount  character  are  the  titles  mentioned  in  the 
fifteenth  section  of  the  Act  of  1851,  which  embrace  and  protect  the  interests 
of  third  persons,  who  can  use  the  same  in  the  maintenance  of  their  possession 
and  enjoyment  of  such  lands,  as  against  the  United  States  or  its  grantees. 
These  are  the  titles  which  Chief  Justice  Marshall  in  Clark's  case,  and  Mr. 
Justice  Baldwin  in  Strother  vs.  Lucas,  and  >\Ir.  Justice  Catron  in  United  States 
vs.  AA'iggins,  and  Air.  Justice  Clifford  in  ]\Iaguire  vs.  Tyler,  and  Mr.  Justice 
Field  in  Beard  vs.  Federy.  and  in  Waterman  vs.  Smith  and  other  cases  in  the 
California  Supreme  Court,  held  to  be  of  the  character  that  needs  no  sanction 
nor  aid  from  the  political  department  of  the  government,  and  which  can  be 
used  in  the  courts  of  the  country  in  successful  resistance  to  any  adverse  action 
of  the  United  States  or  its  grantees  respecting  them. 

The  fifteenth  section  of  the  act  itself  provided  for  the  assertion  of  such 
titles ;  and  the  rights  and  interests  thereby  secured  l)y  any  third  person,  who 
may  be  in  position  to  do  so,  when  necessary,  as  expounded  in  \\^aterman  vs. 
Smith,  and  in  Beard  vs.  Federy — an  exposition  and  construction  that  has  never 
been  questioned  by  any  court  in  the  land.  From  such  construction  of  said 
section  it  results  logically,  that  perfect  titles  of  individuals  are  superior  and 
paramount  to  any  claim  or  claims  the  government  or  its  grantees  may  make 
to  lands  which  such  titles  describe  and  embrace. 

It  is  assumed  in  the  opinion  in  the  Dominguez  case,  that  if  the  title  was 
perfect,  the  board  of  commissioners  and  the  courts  to  which  it  might  be  sub- 
mitted, would  decide  the  claim  thus  presented  to  be  valid.  This  assumption 
is  not  fully  warranted  by  experience  in  matters  even  of  judicial  investigations. 
That  the  commissioners  and  the  District  Court  might  decide  erroneously,  -is 
assumed  by  the  act  itself,  which  provides  for  an  appeal  from  their  decisions, 
and  though  there  can  be  no  appeal  from  the  court  of  last  resort,  that  court 
cannot  be  said  to  be  infallible:  therefore,  it  would  be  possible  for  one  owning 
land  by  such  title,  after  all  the  labor  and  expense  to  which  the  government,  by 
its  legislation  had  driven  him,  to  fail  to  satisfy  the  commissioners  and  the 
courts  of  the  validity  of  his  title,  and  so  he  would  lose  his  land,  notwithstand- 
ing his  perfect  title. 

The  Constitution  was  ordained  "to  establish  justice."  and  it  is  for  men 
imbued  with  the  spirit  of  justice,  to  say  if  it  be  just  to  require  individuals 
holding  their  lands  by  perfected  titles,  to  submit  their  claims  and  titles  to  a 
board  of  commissioners,  who  might  decide  them  to  be  invalid.  Is  it  just  to 
compel  the  owner  of  land  in  full  property,  in  order  to  save  it  from  forfeiture, 
to  become  the  ])laintiff  in  a  proceeding  in  the  nature  of  an  action  against  the 
United  States,  in  which  government  lawyers  of  learning  and  skill  are  employed 
bv  authoritv  of  the  act  itself,  to  oppo.se,  and  if  possible,  break  down  his  title? 


History  of  the  Bench  and  Bar  of  California.  71 

Congress  may  possibly  enact  laws  in  violation  of  common  right  and  treaty 
stipulations  and  of  the  Constitution  which  provides  for  the  security  of  vested 
rights.  If  Congress  so  transcends  its  power  it  becomes  the  duty  of  the  courts, 
when  the  question  is  properly  brought  before  them,  to  declare  the  invalidity 
of  such  laws.  "Cases  may  occur,"  said  the  court  in  Strother  vs.  Lucas,  "where 
the  provisions  of  a  law  may  be  such  as  to  call  for  the  interposition  of  the 
courts." 

It  is  believed  1)y  many  able  and  learned  lawyers,  that  the  Dominguez  case 
presented  a  palpable  instance  for  the  just  exercise  of  judicial  authority  for 
pronouncing  the  eighth  and  thirteenth  sections  of  the  Act  of  1851  invalid  and 
void  as  to  titles  of  the  character  of  that  of  Dominguez  to  Rancho  Las  Vir- 
genes ;  or  perhaps  more  properly,  by  holding  that  inasmuch  as  Congress  had 
no  jurisdiction  over  perfect  titles,  the  eighth  and  thirteenth  sections  of  the 
act  were  not  intended  to  include  such  titles  and  the  lands  held  thereunder,  even 
though  the  language  of  these  sections  were  broad  enough  to  embrace  all  claims 
to  lands.  Such  a  construction  would  relieve  Congress  from  the  imputation 
of  any  intention  to  transcend  its  powers.  This  would  Ije  within  the  rules  of 
construction  sanctioned  by  the  highest  courts  of  the  land.  It  would  avoid  the 
strict  letter  of  the  statute  in  the  ascertainment  of  the  lawful  intention  of  the 
legislature,  Qui  liacrct  in  litcra,  hacret  in  corticc. 

There  are  principles  lying  at  the  foundation  of  the  Constitution  which  are 
as  unerring  as  the  law  of  gravitation,  and  which  must  endure  in  spite  of  the 
progressive  tendency  to  legislative  usurpation  of  power.  These  principles  are 
imbedded  in  the  Constitution,  and  are  conserved  in  the  opinions  and  decisions 
of  our  highest  court  in  its  earlier  history,  which,  with  lawyers  and  jurists  had 
become  the  sacred  scriptures  of  judicial  learning  and  just  exposition  of  organic 
law.  Upon  these  decisions  the  people  of  our  country  had  come  to  believe  they 
were  secure  in  all  that  pertained  to  civil  lil)erty — the  full  and  free  enjoyment 
of  life,  liberty  and  property.  The  conflict  between  the  doctrines  of  the 
decisions  of  the  court  of  former  years,  and  the  doctrine  of  the  Dominguez 
case,  is  plainly  conspicuous  and  readily  to  be  perceived  by  attentive  compari- 
son. Between  these  opposing  doctrines,  those  who  in\'estigate  and  think  and 
reason  for  themseh'es  must  make  their  choice,  and  decide  on  which  side  they 
will  take  their  stand. 

JOHN   CURRFA'. 

San  Francisco.  Cal. 


DEATH    PENALTY 
FOR    LARCENY 

BY  7HE  EDITOR 


I 


d^  "^^g  c^  €^  c^  e?5  -^3  -^s  m9  w? 


HISTORY  of  the 
BENCH  and  BAR 
of  CALIFORNIA 


«>«??SP^'f"=??f^'??"^ 


DEATH  PENALTY  for  LARCENY 


George  Tanner  was  tried  in  Marysville  in  April.  1852,  in  the  then  Court  of 
Sessions,  upon  an  indictment  regularly  presented,  for  grand  larceny,  by  steal- 
ing fifteen  hundred  pounds  of  flour,  six  sacks  of  potatoes,  five  kegs  of  syrup, 
two  and  one-half  barrels  of  meal,  one  keg  of  powder,  and  one-half  barrel  of 
mackerel,  the  property  of  Low^e  &  Brothers,  of  the  value  of  $400.  While  impan- 
eling the  jury  the  district  attorney  asked  one  of  the  panel  if  he  had  any  consci- 
entious scruples  against  the  infliction  of  capital  punishment.  The  answer  was  : 
''I  would  hang  a  man  found  guilty  of  murder,  but  I  would  not  hang  a  man  for 
stealing."  The  district  attorney  challenged  the  proposed  juror,  the  court 
allowed  it,  the  man  was  "excused,"  and  an  exception  to  the  ruling  of  the  court 
was  taken  by  the  prisoner's  counsel.  The  jury  being  formed,  the  case  was 
tried,  and  a  verdict  was  returned, — "Guilty  of  grand  larceny,  punishable  with 
death."  The  prisoner  w^as  sentenced  to  be  hanged.  He  appealed  to  the  Dis- 
trict Court,  which  affirmed  the  judgment,  and  a  further  appeal  was  had  to  the 
Supreme  Court.  The  latter  tribunal  was  then  composed  of  Chief  Justice 
Hugh  C.  Murray,  and  Associate  Justices  Alexander  Wells  and  Alexander 
Anderson.  The  case  of  Tanner  was  taken  before  them  while  they  were  hold- 
ing the  .April  term,  A.  D.,  ICS52,  at  San  Francisco,  under  an  act  of  the  legisla- 
ture authorizing  it  so  to  do.  The  cause  was  argued  before  the  Supreme  Court 
on  behalf  of  the  prisoner  by  no  less  a  light  than  General  William  Walker,  the 
"grey-eyed  man  of  destiny,"  who  became  famous  alike  in  law,  medicine  and 
wild  adventure,  and  whose  pursuit  of  the  vision  of  empire  ended  in  his  violent 
death.     The  attorney-general,  S.  C.  Hastings,  represented  the  people. 

The  Supreme  Court  affirmed  the  judgment  of  death.  A  ])etition  for  a 
rehearing  was  filed,  and  an  order  was  made  commanding  the  sheriff'  of  Yuba 
county  to  stay  the  execution  of  the  sentence  until  the  23d  day  of  July,  1852,  in 
order  that  an  application  for  rehearing  might  be  heard  by  the  court.  The 
application  was  heard  by  Justices  Wells  and  Anderson,  and  was  overruled  July 
16,  1852.      It  was  ordered  that  Tanner  be  executed  on  the  23d  day  of  July  in 


76  History  of  the  Bench  and  Bar  of  California. 

the  manner  prescribed  by  the  original  sentence,  and  he  was  executed  accord- 
ingly. 

At  that  day  our  law  provided  that  any  person  found  guilty  of  grand  larceny 
should  be  punished  by  imprisonment  in  the  State  prison  for  a  term  of  not  less 
than  one,  nor  more  than  ten  years,  or  by  death,  in  the  discretion  of  the  jury. 
In  referring  to  this  enactment,  the  Supreme  Court  said,  in  the  case  of  Tanner : 
"We  regret  that  our  legislature  have  considered  it  necessary  to  thus  retro- 
grade, and  in  the  face  of  the  wisdom  and  experience  of  the  present  day,  resort 
to  a  punishment  for  less  crimes  than  murder  which  is  alike  disgusting  and 
abhorrent  to  the  common  sense  of  every  enlightened  people." 

But  the  question  of  the  constitutionality  of  the  law,  or  its  invalidity  for 
any  reason,  seems  not  to  have  been  discussed  before,  or  considered  by  the 
Supreme  Court.  The  arguments  of  counsel  were  not  preserved  or  written, 
but  the  Supreme  Court  opinion  (by  Murray),  is  found  in  the  second  volume 
of  the  reports  of  that  court,  at  page  257.  The  appeal  turned  on  the  question 
whether  the  Court  of  Sessions  erred  in  excluding  from  the  jury  the  man  who 
declared  he  would  not  hang  another  for  stealing.  It  was  held  that  the  man, 
William  Jackson,  of  Marysville,  was  properly  excluded  from  the  jury;  the 
validity  of  the  act,  under  which  Tanner  was  hanged,  was  not  attacked. 

It  is  curious  to  note  that  while  the  old  criminal  law  referred  to  did  not 
permit  a  man  to  be  imprisoned  for  grand  larceny  for  a  longer  term  than  ten 
years,  it  yet  authorized  the  jury  to  decree  his  death  on  the  scaffold.  The  jump 
was  a  long  one — from  ten  years'  imprisonment  to  death ! 

Mr.  George  Congdon,  of  San  Francisco,  has  informed  the  editor  of  this 
History  that  he  was  present  in  a  concourse  of  three  thousand  people  in  the 
outskirts  of  Stockton,  in  the  year  1852,  and  saw  three  men  hanged  at  the  same 
time  for  the  crime  of  grand  larceny  (stealing  cattle),  whereof  they  had  been 
regularly  indicted  and  convicted  by  a  jury  in  a  legal  court  of  justice.  The 
sheriff  of  San  Joaquin  county,  who  officiated  on  the  occasion,  was  the  late 
Colonel  R.  P.  Ashe,  who  left  a  large  family  and  a  valuable  estate,  and  who 
is  well  remembered  all  over  California.  He  was  the  father  of  Hon.  R.  Porter 
Ashe,  of  our  own  day. 

The  law  of  this  State  which  first  prescribed  punishment  for  robbery  and 
grand  larceny,  was  passed,  of  course,  at  the  first  session  of  the  legislature,  in 
1850.  The  penalty  was  alike  for  both  offenses,  namely,  imprisonment  for 
from  one  to  ten  years.  It  was  at  the  second  session,  1851,  the  draconian  pro- 
vision, authorizing  juries  in  their  discretion,  to  impose  the  death  penalty  for 
both  robbery  and  grand  larceny  was  passed,  and  approved  by  Governor  John 
McDougal.  This  law  remained  in  effect  full  five  years.  On  April  19,  1856, 
it  was  amended,  and  at  the  same  time  a  distinction  made  between  the  two 
crimes,  so  that  robbery  was  punished  by  imprisonment  for  not  less  than  one 
year,  which  might  be  extended  to  life,  while  the  penalty  for  grand  larceny 
was  made  from  one  to  fourteen  years'  impri.sonment,  the  court  in  all  instances, 


History  of  the  Bench  and  Bar  of  California.  77 

and  not  the  jury,  being  the  sole  arbiter  as  to  the  length  of  the  term.  This 
law  of  1856  was  enacted  by  our  only  Know-Nothing  legislature,  and  approved 
by  J.  Neely  Johnson,  our  only  Know-Nothing  Governor.  The  degree  of  pen- 
alty for  these  crimes  has  fluctuated,  but  at  present,  it  is  for  robbery,  imprison- 
ment from  one  year  to  life;  for  grand  larceny,  imprisonment  from  one  to  ten 
years,  so  that  the  present  penalty  for  the  latter  crime  is  just  the  same  as  was 
prescribed  by  the  original  statute  of  the  State. 

Many  cases  similar  to  the  above  might  be  given.  Three  men  were  hanged 
in  Sacramento  in  185 1  for  a  not  very  aggravated  case  of  highway  robbery. 
We  had  occasion  many  years  ago  to  make  allusion  to  these  early  trials,  and 
thereupon  a  well-known  editor  of  the  time  made  these  observations : 

No  doubt  at  this  distance  the  infliction  of  capital  punishment  for  felonies  other 
than  murder  must  seem  to  have  been  draconian  to  an  extent  almost  inconceivable. 
But  at  the  time  there  could  hardly  be  said  to  be  organized  society  in  California.  The 
sternest  measures  were  necessary  to  keep  the  vicious  in  subjection.  The  condition  of 
things  was  as  primitive  as  when  the  death  penalty  was  prescribed  in  England  for  rob- 
bery. But  when  society  in  California  became  strong  enough  to  deal  with  criminals 
of  all  grades  and  had  jails  to  keep  them  in,  our  code  became  more  mild — perhaps  in 
some  cases  now,  too  mild. 

THE  EDITOR. 


THE  RECOVERY  OF 
THE  PIOUS  FUND 


HON.   JOHN   7.   "DOYLE 


c^^ttuaa^  J  <'(y(:^u^ 


^a^fer^— 


e?9  (^  (^  (&  tSa  &  &  efe  i^  <Se 


HISTORY  of  the 
BENCH  and  BAR 
of  CALIFORNIA 


'rf 


"f  ^?  9?  g? 


RECOVERY  of  the  PIOUS  FUND 


Some  account  of  the  origin  and  objects  of  the  Pious  Fund  seems  a  neces- 
sary preliminary  to  a  notice  of  the  litigation  to  recover  it.  As  all  readers  of 
Spanish  colonial  history  are  aware,  the  Spanish  monarchs  claimed  title  to  the 
newly  discovered  Western  lands,  under  a  bull  of  Pope  Alexander  VI,  dated 
May,  1493,  which  enjoined  on  them  the  duty  of  converting  the  inhabitants  of 
those  extensive  regions  to  the  Christian  religion;  and  this  object  was  steadily 
recognized  by  the  Spanish  crown  as  a  duty  incumbent  on  it.  The  missionary 
priest  accompanied  every  expedition  for  discovery,  occupation  or  subjugation, 
and  the  ecclesiastical  conquest  of  the  country  kept  pace  with  and  sometimes 
preceded  its  reduction  to  civil  allegiance. 

In  the  sixteenth  and  seventeenth  centuries,  great  importance  was  attached 
by  Spain  to  the  peninsula  of  Lower  California,  as  a  barrier  against  English 
aggression  on  Mexico,  from  the  sea.  And  from  the  time  of  the  discovery  of 
that  country  in  1534  by  an  expedition  fitted  out  by  Cortez,  its  colonization  and 
the  conversion  of  its  inhabitants  to  the  Catholic  faith  was  a  cherished  object 
with  the  Spanish  monarchs.  Many  expeditions  for  the  purpose  were  set  on 
foot,  at  the  expense  of  the  crown,  during  the  century  and  a  half  succeeding  the 
discovery,  but  though  attended  with  enormous  expense,  none  of  them  were 
productive  of  the  slightest  good  result.  Down  to  the  year  1697  the  Spanish 
monarchs  had  failed  to  acquire  any  permanent  foothold  in  the  vast  territory 
which  they  claimed  under  the  name  of  California.  The  success  of  the  Jesuit 
fathers  in  their  missions  on  the  northwestern  frontier  of  Mexico,  and  else- 
where, induced  the  vSpanish  government  as  early  as  1643  C^'"*  ^^""^  occasion  of 
fitting  out  an  expedition  for  California  under  Admiral  Pedro  Portal  de  Cas- 
anate),  to  invite  that  religious  order  to  take  charge  of  the  spiritual  ministration 
of  it  and  the  country  for  which  it  was  destined,  and  they  accepted  the  charge, 
but  that  expedition,  like  all  its  predecessors,  failed. 

The  last  expedition  undertaken  by  the  crown  was  equipped  in  pursuance 
of  a  royal  cednla  of  December  29,  1679.  It  was  confided  to  the  command  of 
Admiral  Isidro  Otondo,  and  the  spiritual  administration  of  the  country  was 


82  History  of  the  Bench  and  Bar  of  California. 

again  entrusted  to  the  Jesuits,  the  celebrated  Father  Kino  being  appointed 
cosmografo  mayor  of  the  expedition.  Various  circumstances  conspired  to  delay 
its  departure,  and  it  only  sailed  on  the  i8th  of  March,  1683.  JMany  precautions 
had  been  taken  to  ensure  its  success,  but  after  three  years  of  ineffectual  effort 
and  an  expenditure  of  over  225,000  dollars,  it  was  also  abandoned  as  a  failure, 
and  at  a  junta  general,  assembled  in  the  City  of  Mexico  under  the  auspices 
of  the  viceroy,  wherein  the  whole  subject  was  carefully  reviewed,  it  was  deter- 
mined that  "the  reduction  of  California  by  the  means  theretofore  relied  on,  was 
a  simple  impossibility,"  and  that  the  only  mode  of  accomplishing  it  was  to  invite 
the  Jesuits  to  undertake  its  whole  charge,  at  the  expense  of  the  crown.  This 
proposition  w^as  made,  but  it  w^ould  seem  that  the  conduct  of  the  royal  officers, 
civil  and  military,  must  have  contributed  to  the  previous  failures,  and  probably 
for  that  reason,  it  was  declined  by  the  society,  although  the  services  of  its 
members  as  missionaries  were  always  freely  placed  at  the  disposal  of  the 
government. 

Individual  members  of  the  society,  however,  animated  by  a  zeal  for  the 
spread  of  the  Christian  faith  in  California,  proposed  to  undertake  the  whole 
charge  of  the  conversion  of  the  country  and  its  reduction  to  Christianity  and 
civilization,  and  this  without  expense  to  the  crown,  on  condition  that  they 
might  themselves  select  the  civil  and  military  officers  to  be  employed.  This 
plan  was  finally  agreed  to,  and  on  the  5th  of  February,  1697.  the  necessary 
authority  Was  conferred  on  Fathers  Juan  Maria  Salvatierra  and  Francisco 
Eusebio*  Kino,  to  undertake  the  reduction  of  California,  on  the  express  con- 
ditions, how^ever  :  ( i  )  That  possession  of  the  country  was  to  be  taken  in  the 
name  of  the  Spanish  crown,  and  (2)  that  the  royal  treasury  was  not  to  be 
called  on  for  any  of  the  expenses  of  the  enterprise,  without  the  express  order 
of  the  king. 

In  anticipation  of  this  result.  Fathers  Kino  and  Salvatierra  had  already 
solicited  and  received  from  various  individuals  and  religious  bodies,  voluntary 
donations  called  liinosiias,  or  alms,  contributed  in  aid  of  the  enterprise.  The 
funds  thus  collected  were  placed  in  their  hands,  in  trust,  to  be  applied  to  the 
propagation  of  the  Catholic  faith  in  California,  by  preaching,  the  administra- 
tion of  the  sacraments  of  the  church,  erection  of  cluu-cli  edifices,  the  founding 
of  religious  schools,  and  the  like;  in  a  word,  by  the  institution  of  Catholic 
missions  there  under  the  system  so  successfully  pursued  by  the  Jesuits  in  Para- 
guay, Northern  Mexico,  Canada,  India  and  elsewhere. 

The  earliest  contributions  thus  obtained  will  be  found  detailed  in  Venegas' 
"Noticia  de  la  California,"  vol.  2,  p.  12.  Besides  sums  given  to  defray  imme- 
diate expenses,  it  was  determined  to  establish  a  fund  or  capital,  the  income 
from  which  should  form  a  permanent  endowment  of  the  missionary  church. 
Towards  this  latter  object,  the  first  recorded  contrilmtions  seem  to  have  been 
by  the  congregation  of  N.  S.  de  los  Dolores,  which  contributed  $10,000,  and 
Don  Juan  Cabal lero  y  Ozio,  who  gave  $20,000  more.     These  donations  formed 


History  of  the  Bench  and  Bar  of  California.  83 

the  nucleus  of  the  fund  destined  for  the  propagation  of  the  Cathohc  faith  in 
CaHfornia.  It  was  increased  from  time  to  time  by  others,  and  in  a  compara- 
tively few  years  attained  magnitude  and  importance.  It  was  invested  and 
admmistered  by  the  Jesuits  in  pursuance  of  the  trust  on  which  it  was  confided 
to  them,  and  its  income  was  the  source  from  w^hich  was  defrayed  the  annual 
expense  attending  the  missions  in  California.  In  time,  it  acquired  by  common 
acceptance  the  name  of  "The  Pious  Fund  of  the  Californias." 

Among  the  most  important  contributions  to  the  fund  was  one  of  the 
Marquis  de  Villa  Puente  and  his  wife,  who  in  1735,  in  addition  to  large  pre- 
vious donations,  conveyed  to  the  Society  of  Jesus,  by  deed  of  gift  inter  vivos, 
estates  and  property  of  great  value  and  productiveness. 

With  Fathers  Kino  and  Salvatierra  were  associated  in  the  projected  con- 
quest, Fathers  Juan  Ugarte  and  Francisco  Maria  Piccolo ;  the  former  of  these 
united  to  the  zeal  of  the  missionary  a  singular  talent  and  aptitude  for  the 
management  of  business  affairs,  and  he  was  accordingly  at  first  constituted 
procurator,  or  man  of  business  of  the  missions,  to  reside  at  Mexico.  The 
latter  was  of  a  noble  Italian  family,  distinguished  as  a  scholar,  and  a  writer 
of  elegant  and  perspicuous  style. 

Father  Kino  was  unable  to  accompany  his  associates  to  the  scene  of  their 
labors,  and  the  mission  was  commenced  by  Fathers  Salvatierra  and  Piccolo, 
who,  three  years  later,  were  joined  by  Father  Ugarte.  It  would  be  out  of  place 
here  to  follow  these  heroic  men  in  their  apostolic  labors.  Father  Salvatierra 
embarked  at  the  mouth  of  the  Yaqui  river  in  a  crazy  little  schooner,  and  after 
a  short  voyage  of  nine  days  reached  California.  Landing  in  an  unknown 
country,  remote  from  all  supplies  and  communications,  this  intrepid  mission- 
ary accompanied  by  a  corporal  and  five  men,  with  three  Indian  servants,  delib- 
erately aimed  at  no  less  an  object  than  the  spiritual  conquest  of  the  whole 
peninsula,  and  the  country  to  the  north  of  it,  up  the  coast  as  far  as  Cape  Men- 
docino. He  was  followed  in  a  few  weeks  by  Father  Piccolo.  The  chronicle 
of  the  obstacles  they  surmounted,  the  privations,  sufferings,  and  perils  to  which 
they  and  their  subsec[uent  companions  were  exposed,  and  in  which  .some  of 
them  cheerfully  perished,  and  of  the  success  they  finally  achieved,  is  as  full  of 
romance,  interest,  and  instruction  as  any  in  the  annals  of  the  New  World. 
Besides  the  chief  object  of  bringing  the  native  population  into  the  fold  of  the 
church,  which  was  ever  kept  steadily  in  \iew,  these  remarkable  men  ne\-er  lost 
sight  of  the  interests  of  learning  and  science ;  they  faithfully  observed  and 
chronicled  all  that  was  of  interest  in  any  branch  of  human  knowledge,  or 
ca])able  of  being  useful  to  the  colony  or  the  mother  country.  It  is  a  hundred 
years  since  the  Jesuits  were  expelled  from  Lower  Califurnia.  yet  to  tliis  day, 
most  that  we  know  of  its  geogra])hy,  climate,  physical  peculiarities  and  natural 
history  is  derived  from  the  relations  of  these  early  missionaries.  By  kindness 
and  instruction,  they  gradually  overcunc  the  hostility  of  the  nati\-e  tribes,  and 
durino-  the  seventv  succeeding  vears  graduallv  extended  their  missions  from 


84  History  of  the  Bench  and  Bar  of  California. 

Cape  San  Lucas  up  the  peninsula,  to  the  northward,  so  that  at  the  period  of 
their  expulsion,  they  had  established  those  of  San  Jose  del  Cabo,  Todos  Santos, 
Santiago  de  los  Coras,  Francisco  Xavier,  N.  S.  de  Loreto,  Santa  Rosa  de 
Muleje,  San  Jose  de  Comundu.  San  Ignacio,  La  Purisima  de  Cadegomo,  Santa 
Gertrudes,  N.  S.  de  Guadalupe,  San  Francisco  de  Borja,  and  Santa  Maria  de 
los  Angeles,  which,  with  that  of  San  Fernando  de  Villacata,  founded  by  the 
Franciscans  in  May.  1769,  on  their  march  to  San  Diego,  were  all  the  missions 
of  Lower  California. 

At  this  time  the  interior  of  Upper  California  was  unexplored  and  its  eastern 
and  northern  boundaries  undefined.  The  outline  of  the  coast  had  been  mapped 
with  more  or  less  accuracy,  by  naval  exploring  expeditions  fitted  out  by  the 
crown,  and  by  the  commanders  or  pilots  of  the  Philippine  galleons,  wdiich,  on 
their  return  voyages  to  Acapulco,  took  a  wide  sweep  to  the  north,  and  sighted 
the  leading  headlands  from  as  far  north  as  the  ''Cabo  Blanco  de  San  Sebas- 
tian," down  to  Cape  San  Lucas.  The  whole  coast  as  far  north  as  Spain 
claimed,  was  called  by  the  name  of  California.  The  terms  Upper  and  Lower 
California,  came  into  use  afterwards. 

The  "pious  fund"  continued  to  be  managed  by  the  Jesuits,  and  its  income 
applied  in  conformity  to  the  will  of  its  founders,  and  the  missions  of  California 
remained  under  their  charge  down  to  1768,  in  which  year  they  were  expelled 
from  Mexico  in  pursuance  of  the  order  of  the  crown,  or  pragmatic  sanction 
of  February  27,  1767.  Their  missions  in  California  were  directed  by  the 
viceroy  to  be  placed  in  the  charge  of  the  Franciscan  Order.  Subsequently  a 
royal  ccdula  of  April  8,  1770,  was  issued,  directing  that  one-half  of  these 
missions  should  be  confided  to  the  Dominican  Friars ;  in  pursuance  of  which, 
and  a  "concordato"  of  April  7,  1772,  between  the  authorities  of  the  two  orders, 
sanctioned  by  the  viceroy,  the  missions  of  Lower  California,  and  the  whole 
spiritual  charge  of  that  peninsula,  were  confided  to  the  Dominicans,  and  those 
of  Upper  California  to  the  Franciscans.  The  income  and  the  product  of  the 
"pious  fund"  was  thereafter  appropriated  to  the  missions  of  both  orders. 

The  church  when  first  established  in  Upper  California,  was  purely  mis- 
sionary in  its  character.  Its  foundation  dates  from  the  year  1769;  in  July  of 
which  year,  Father  Junipero  Serra,  a  Franciscan  friar,  and  his  companions, 
reached  the  port  of  San  Diego,  overland,  from  the  frontier  mission  of  Lower 
California,  and  there  founded  the  first  Christian  mission,  and  first  settlement 
of  civilized  men,  within  the  territory  now  comprised  in  the  State  of  California. 
Their  object  was  to  convert  to  Christianity  and  civilize  the  wretched  native 
inhabitants,  sunk  in  the  lowest  depths  of  ignorance  and  barbarism.  In  pur- 
suit of  this  they  exposed  themselves  to  all  the  perils  and  privations  of  a  journey 
of  forty-five  days  across  an  unexplored  wilderness,  and  a  residence  remote 
from  all  the  conveniences  and  necessaries  of  civilized  life,  in  the  midst  of  a 
hostile  and  barbarous  population,  who  requited  the  charity  of  the  Christian 
missionary  with  the  crown  of  Christian  martyrdom.  Father  Junipero  and 
his  followers  established  missions  among  these  barbaroi»s  people,  from  San 


{| 


History  of  the  Bench  and  Bar  of  California.  85 

Diego  as  far  north  as  Sonoma,  at  each  of  which  the  neighboring  tribes  of 
Indians  were  assembled  and  instructed  in  the  truth  of  the  Christian  rehgion 
and  the  rudiments  of  the  arts  of  civihzed  Hfe.  The  missions  of  Upper  CaH- 
fornia,  and  the  dates  of  their  foundation,  were  as  follows : 

San  Diego,  1769;  San  Luis  Rey,  1798;  San  Juan  Capistrano,  1776;  San 
Gabriel.  1771  ;  San  Antonio,  1771  ;  Santa  Ynez,  1802;  San  Miguel,  1797;  San 
Buenaventura,  1782;  San  Rafael,  1821  ;  La  Soledad,  1791 ;  Santa  Barbara, 
1786;  La  Purisima,  1787;  El  Carmelo,  1770;  San  Luis  Obispo,  1772;  San  Juan 
Bautista.  1797;  Santa  Clara,  1777;  San  Jose,  1797;  San  Francisco  de  Assis, 
1776;  San  Fernando,  1771  ;  Santa  Cruz,  1791 ;  San  Francisco  Solano,  1823. 

The  missions  were  designed,  when  the  population  should  be  sufficiently 
instructed,  to  be  converted  into  parish  churches,  and  maintained  as  such,  as 
had  already  been  done  in  other  parts  of  the  viceroyalty  of  New  Spain ;  but  in 
the  meantime,  and  while  their  missionary  character  continued,  they  were  under 
the  ecclesiastical  government  of  a  president  of  the  missions.  Father  Serra 
was  the  first  who  occupied  this  office,  and  the  missions  were  governed  and 
directed  by  him  and  his  successors  as  such,  dow^n  to  the  year  1836,  when  the 
authority  of  this  officer  was  superseded  by  the  appointment  of  a  bishop,  and 
the  erection  of  the  Californias  into  a  bishopric  or  diocese. 

The  text  of  the  decree  or  pragmatic  sanction,  expelling  the  Jesuits  from 
the  Spanish  dominions,  is  to  be  found  in  the  Novissinia  recopilacion,  and  it 
directs  "que  se  ocupen  todas  las  temporalidades  de  la  compania  en  mis  domin- 
ios."  Under  this  provision,  the  crown  took  all  the  estates  of  the  order  into 
its  possession,  including  those  of  the  "pious  fund'' ;  but  these  latter,  constituting 
a  trust  estate,  were  of  course  taken  cum  onere,  and  charged  with  the  trust. 
This  was  recognized  by  the  crown,  and  the  properties  of  the  "pious  fund,"  so 
held  in  trust,  were  thereafter  managed,  in  its  name,  by  officers  appointed  for 
the  purpose,  called  a  "'junta  directiva."  The  income  and  product  continued  to 
be  devoted,  through  the  instrumentality  of  the  ecclesiastical  authorities,  to  the 
religious  purposes  for  which  they  were  dedicated  by  the  donors. 

On  the  declaration  of  Mexican  independence,  Mexico  succeeded  to  the 
crown  of  Spain  as  trustee  of  the  "pious  fund,"  and  it  continued  to  be  managed 
and  its  income  applied  as  before,  down  to  September  19,  1836,  when  the 
condition  of  the  church  and  of  the  missionary  establishments  in  California 
seemed  to  render  desirable  the  erection  of  the  country  into  a  diocese  or 
bishopric,  and  the  selection  of  a  bishop  for  its  government.  The  Catholic 
religion  being  the  established  religion  of  Mexico,  and  it  being  a  known  rule 
of  the  Holy  See  not  to  consent  to  the  erections  of  new  bishoprics  in  countries 
acknowledging  the  Catholic  faith,  without  an  endowment  from  some  source 
adequate  to  the  decent  sui)port  of  the  bishopric,  the  law  of  the  Mexican 
congress  of  September  19,  1836,  was  passed,  which  attached  an  endowment 
of  $6,000  per  year  to  the  mitre  to  be  founded,  and  conceded  to  the  incumbent 
when  selected,  and  his  successors,  the  administration  and  disposal  of  the  "pious 


86  History  of  the  Bench  and  Bar  of  California. 

fund."  As  it  formed  the  support  of  the  church  in  his  diocese,  and  the  mis- 
sionaries and  their  flocks  were  all  his  spiritual  subjects,  and  his  only  ones,  this 
under  the  canon  law  was  a  natural  result,  and  its  expression  merely  serves 
to  mark  clearly  the  recognized  destination  of  the  fund. 

In  pursuance  of  the  invitation  held  out  in  this  enactment,  the  two  Cali- 
fornias.  Upper  and  Lower,  were  erected  by  his  holiness,  Pope  Gregory  XVI, 
into  an  episcopal  diocese,  and  Francisco  Garcia  Diego,  who  had  until  that  time 
been  president  of  the  missions  of  Upper  California,  was  made  bishop  of  the 
newly  constituted  see;  as  such  he  became  entitled  to  the  administration,  man- 
agement and  investment  of  the  "pious  fund"  as  trustee,  as  well  as  to  the 
application  of  its  income  and  proceeds  to  the  purposes  of  its  foundation,  and 
for  the  benefit  of  his  flock. 

On  February  8th.  1S42,  so  much  of  the  law  of  September  19,  1836,  as 
confided  the  management,  investment,  etc.,  of  the  fund  to  the  bishop,  was 
abrogated  by  a  decree  of  Santa  Anna,  then  president  of  the  Republic,  and  the 
trust  was  again  devolved  on  the  state ;  l)ut  that  decree  did  not  purport  in  any 
way  to  impugn,  impair  or  alter  the  rights  of  the  ceshiis  que  trust;  on  the  con- 
trary, it  merely  devolved  on  certain  government  officers  the  investment  and 
management  of  the  property  belonging  to  the  fund,  for  the  purpose  of  carry- 
ing" out  the  trust  established  by  its  donors  and  founders. 

On  October  24th,  1842,  another  decree  was  made  by  the  same  provisional 
president,  reciting  the  inconvenience  and  unnecessary  expense  attending  the 
management  of  the  various  properties  belonging  to  the  "pious  fund"  through 
the  medium  of  public  officers,  and  thereupon  directing  that  the  properties 
belonging  to  it  should  be  sold  for  the  sum  represented  by  its  income,  (capital- 
ized on  the  basis  of  six  per  cent  per  annum),  that  the  proceeds  of  the  sale  as 
well  as  the  cash  investments  of  the  fund  should  be  paid  into  the  public  treasury, 
and  recognized  an  obligation  on  the  part  of  the  government  to  pay  six  per  cent 
per  annum  on  the  capital  thereof  thenceforth. 

In  none  of  these  acts  was  there  any  attempt  to  destroy  or  confiscate  the 
property  or  im])air  the  trust  or  the  rights  of  the  ultimate  l:)eneficiaries. 

The  property  of  the  "pious  fund"  at  the  time  of  that  decree  of  October 
24th,  1842,  consisted  of  real  estate,  urban  and  rural;  demands  on  the  public 
treasury  for  loans  theretofore  made  to  the  state;  moneys  invested  on  mort- 
gage and  other  security,  and  the  like.  The  greater  part  of  the  property  was 
sold  in  pursuance  of  the  last  mentioned  decree  for  a  sum  of  about  two  millions 
of  dollars.  The  names  of  the  purchasers  are  stated  by  Mr.  Duflot  de  Mofras 
in  his  "Exploration  du  territoire  de  l' Oregon  ct  des  Calif ornies,"  etc.,  to  have 
been  the  house  of  Baraio  and  Messrs.  Rubio  Brothers.  In  the  sale  of  the 
properties  of  the  "pious  fund,"  the  demands  existing  in  its  favor  on  the  public 
treasury  for  loans  to  the  government  w-ere  not  included  ;  the  items  of  the 
capital  of  those  loans  due  at  that  time,  exceeded  a  million  of  dollars.  Some 
of  these  had  preceded  the  severance  of  Mexico  from  the  dominions  of  Spain, 
but  being  debts  of  the  viceroyalty  of  New  Spain,  were  assumed  and  recognized 


History  of  the  Bench  and  Bar  of  California.  87 

as  debts  of  the  Mexican  Republic,  as  well  by  the  law  of  June  28th,  1824,  as  by- 
Article  VII  of  the  treaty  of  December  28,  1836,  between  Mexico  and  Spain. 

At  the  time  of  the  seizure  of  the  fund,  the  bishop's  agent  for  its  manage- 
ment was  an  aged  gentleman,  residing  in  the  City  of  Mexico,  called  Don  Pedro 
Ramirez.  During  the  brief  period  of  his  stewardship,  he  had  succeeded  in 
terminating  most  of  the  litigation  in  which  the  junta  directiva  had  involved  it, 
had  paid  off  its  floating  debt,  cancelled  unprofitalile  leases,  and  otherwise  made 
it  productive.  When  General  Valencia  informed  him  of  his  orders  to  seize 
the  fund  and  rescue  it  from  this  wasteful  sort  of  private  administration,  he 
thought  it  his  duty  to  protest,  however  vainly,  against  the  proceeding.  He 
did  protest,  and  had  quite  a  lively  correspondence  with  the  General.  The 
latter,  however,  w^as  more  of  a  soldier  than  a  diplomatist,  and  presently  threat- 
ened, after  the  manner  of  Brennus,  to  throw  his  sword  and  belt  into  the  scale. 
Don  Pedro,  however,  stood  firm  for  a  recognition  at  least  of  his  position,  and 
insisted  on  delivering  the  property  according  to  an  inventory,  or  "instrnccion 
circunstanciada,"  in  which  the  exact  state  of  the  fund,  the  properties,  the  rents, 
the  mortgage  investments,  etc.,  were  all  set  out;  and  in  deference  to  his  age 
and  character,  and,  I  think  I  may  add,  to  his  pluck,  the  General  consented,  and 
the  delivery  was  so  made.  The  ship  w^as  sinking,  but  the  old  apoderado,  like 
the  heroic  victims  of  the  Birkenhead  disaster,  was  determined  to  maintain  his 
honor  to  the  last,  and  go  down  with  ranks  dressed  and  to  the  word  "Atten- 
tion!"  He  drew  up  his  "'instrnccion  circunstanciada"  in  duplicate,  delivered 
one  copy,  duly  authenticated  by  himself,  to  General  Valencia,  and  transmi-tted 
the  other  to  his  principal,  with  a  copy  of  his  correspondence  preceding  the  final 
surrender,  and  thus  the  capital  of  the  "Pious  Fund  of  California,"  after  about 
one  hundred  and  sixty  years  of  separate  existence,  was  engulfed  in  the  mael- 
strom of  the  treasury  of  the  Mexican  Republic. 

The  waste  under  the  junta  directiva  and  the  necessity  of  repairing  it  out 
of  subsequent  income,  had  long  deprived  the  missions  of  substantial  aid  from 
the  "pious  fund,"  and  the  remoteness  of  California  from  the  central  authority, 
with  the  stirring  events  of  the  war  with  the  United  States,  which  presently 
supervened,  withdrew  attention  from  the  subject.  The  origin  of  the  fund  had 
been  lost  in  antiquity;  the  older  missionaries  remcm1)ercd  that  it  once  existed, 
and  that  Santa  Anna  had  some  way  got  away  with  it.  The  younger  ones  knew 
nothing  more  of  it  than  the  vague  tradition  of  the  country  that  it  existed  in 
former  times.  The  State  legislature  in  1851  ajipointed  a  committee  of  enquiry 
on  the  subject,  who  examined  all  the  old  inhabitants  as  tt)  what  tlicy  knew  of 
it,  but  was  compelled  to  report  that  all  it  could  discover  was  that  such  a  fund 
once  existed,  and  that  it  amounted  to  a  large  sum  of  money,  but  whence  it  was 
derived,  how  it  arose,  or  what  had  become  of  it  they  could  learn  nothing.  Tt 
was  past  finding  out. 

In  1853  Bishop  Joseph  S.  Alemany  brought  me  a  small  package  of  papers, 
which  he  had  found  in  the  archives  of  his  predecessor  in  office,  saying  that 
they  related  to  the  "pious  fund,"  and  that  he  wished  me  to  look  them  over  and 


88  History  of  the  Bench  and  Bar  of  California. 

tell  him  whether  he  had  not  some  claim  against  the  United  States,  or  Mexico, 
for  indemnity  or  compensation  for  Santa  Anna's  acts  of  1842.  I  read  them 
over,  and,  among  much  that  was  at  the  time  unintelligible,  found  Don  Pedro 
Ramirez's  correspondence  with  General  Valencia,  and  his  'Hnstruccion  circun- 
stanciada;"  which  gave  me  my  first  installment  of  solid  information  on  the 
subject;  not  indeed  very  full  or  clear,  but  enough  to  build  on.  I  could  see  no 
claim  against  the  United  States,  and  the  deplorable  state  of  public  affairs  in 
Mexico  did  not  suggest  any  great  value  in  a  claim  against  her ;  although  she 
appeared  responsible  for  Santa  Anna's  acts  of  spoliation.  I  advised  the  bishop 
that  whenever  a  convention  for  the  settlement  of  private  claims  of  American 
citizens  against  Mexico  should  be  concluded,  which  was  likely  to  occur  some 
time,  this  claim  would  probably  become  presentable.  In  1857  the  bishop 
recurred  to  the  subject  and  desired  to  enter  into  a  contract  for  professional 
services  in  the  case,  and  ultimately  he,  as  Archbishop  of  San  Francisco,  and 
Bishop  Thaddeus  Amat,  of  Monterey,  retained  myself  and  another  gentleman, 
now  deceased,  to  endeavor  to  obtain  for  the  church  whatever  she  was  entitled 
to  in  this  connection.  Then  I  began  to  read  Mexican  and  California  history 
and  law,  to  ascertain  how  much  could  be  discovered  in  printed  pulilications 
about  the  "pious  fund.''  And  here  Don  Pedro  Ramirez's  methodical  discharge 
of  duty  was  of  incalculable  advantage  to  me.  His  "iiistruccion  circunstan- 
ciada"  named  each  piece  of  property,  urban  or  rural,  which  he  delivered  over. 
Among  them  were  the  haciendas  of  "Guadalupe"  and  "Arroyo  Sarco,"  the 
purchase  of  which  I  found  mentioned  in  Venegas  as  far  back  as  171 6,  and 
those  of  "San  Pedro  Ibarra,"  "El  Torreon,"  and  "Las  Golondrinas,"  which  are 
named  in  the  deed  of  the  Marquis  de  Villa  Puente  and  his  wife,  a  copy  of 
which  I  also  found  among  the  papers.  These  names  enabled  me  to  identify  the 
property,  and  trace  its  acquisition  as  well  as  to  furnish  the  exact  terms  of  the 
trust,  which  were  elaborately  defined  in  the  deed  referred  to. 

Constantly  on  the  alert  for  additional  information,  I  read  every  scrap  of 
Mexican  history  that  I  could  find  in  print,  and  gradually  I  accumulated — some- 
times from  most  unexpected  places — the  materials  of  the  history  I  have  related 
above,  with  abundant  ])roofs  of  their  accuracy.  I  discovered,  too,  a  valuable 
precedent  in  the  fact  that  a  similar  fund  destined  to  the  support  of  the  missions 
in  the  Philippine  Islands,  had  in  the  troubled  early  days  of  Mexican  indepen- 
dence been  taken  into  the  public  treasury,  and,  after  the  recognition  of  the 
Republic  by  Spain,  been  successfully  reclaimed  by  the  latter  power  and  paid 
over  by  Mexico. 

The  historical  investigation  became  more  and  more  interesting  as  informa- 
tion accumulated,  but  it  long  seemed  as  if  the  pleasure  derived  from  the  study 
was  to  be  the  only  reward  for  the  labor  it  involved.  Public  affairs  in  Mexico 
became  infinitely  entangled,  as  one  ruler  succeeded  another,  and  the  prospect 
of  a  convention  for  the  settlement  of  private  claims  against  the  Republic 
appeared  so  remote  as  to  be  lost  sight  of.  I  even  ceased  to  examine  the 
treaties  at  the  conclusion  of  each  session  of  Congress.     The  bishop  ceased  to 


History  of  the  Bench  and  Bar  of  California.  89 

cherish,  and  finally  dismissed  from  his  mind,  the  hope  of  recovering  anything 
on  account  of  the  "pious  fund."  My  associate  was  in  Washington  absorbed 
in  other  affairs,  public  and  private,  forgot  all  about  our  retainer,  and  I  mvself 
ceased  to  think  of  the  case  in  connection  with  any  legal  proceedings. 

On  Sunday,  March  27th,  1870,  I  casually  took  up  a  New  York  paper,  and 
my  eye  fell  on  a  paragraph  saying  that  Wednesday,  the  30th  instant,  would 
be  the  last  day  for  presenting  claims  to  the  mixed  American  and  Mexican 
commission,  then  sitting  in  Washington.  I  was  away  from  San  Francisco  at 
the  moment,  and  no  conveyance  thither  could  be  obtained  before  the  next  day. 
The  "pious  fund,"  as  a  case  in  my  charge,  had  so  long  appeared  a  hopeless  one, 
that  T  had  not  even  observed  that  a  claims  convention  had  been  agreed  on 
between  the  two  governments.  I  hurried  to  the  city  next  morning,  soon  got 
hold  of  the  convention  of  July  4th,  1869,  and  read  it  carefully.  Demands 
presentable  under  it  were  limited  to  damages  resulting  from  injuries  to  persons 
or  property,  committed  by  either  Republic  on  the  citizens  of  the  other,  since  the 
Treaty  of  Guadalupe  Hidalgo  (February  2nd,  1848).  It  was  clear  that  the 
original  seizure  of  the  "pious  fund"  and  taking  it  into  the  public  treasury  in 
1842  could  not  be  made  the  subject  of  reclamation  under  the  convention.  I 
read  it  again  with  the  mental  enquiry,  is  it  possible  that  we  are  utterly  without 
remedy  under  this  convention?  The  time  for  deliberation  was  very  short; 
my  client  was  away  in  Europe,  his  vicar-general  knew  nothing  whatever  of 
the  matter,  and  my  associate  was  in  Washington,  evidently  oblivious  to  the 
whole  affair.  I  had  to  decide  on  my  own  responsibility  and  act  at  once.  I 
determined  to  abandon  all  claim  for  the  property  of  the  fund,  treat  Santa 
Anna's  decree  of  October  24,  1842,  as  a  purchase  and  sale  of  it,  at  the  price 
and  on  the  terms  indicated  in  its  text,  and  demand  damages  for  nonfulfillment 
of  the  contract  by  payment  of  the  interest  accrued  since  the  Treaty  of  Guada- 
lupe Hidalgo.  I  despatched  a  telegram  to  Washington,  outlining  the  claim  in 
this  form  and  desiring  that  it  might  be  filed  with  the  commission,  and  by  the 
following  Wednesday  I  had  the  satisfaction  of  learning  that  my  message  had 
been  received  and  understood,  and  the  claim  seasonably  presented. 

In  due  course  I  prepared  a  memorial  of  the  claim,  as  required  by  the  rules 
of  the  commission  (of  which  I  fortunately  discovered  a  copy  in  the  possession 
of  a  friend  in  San  Francisco,  after  fruitless  efforts  to  obtain  one  from  my 
associate  in  Washington),  incorporating  the  historical  matter  given  above,  and 
adding  in  a  printed  pamphlet  of  68  pages,  extracts  from  historical  works  in 
Spanisii,  French,  German  and  Italian,  in  support  of  the  allegations  of  my 
memorial.  The  historical  proofs  when  collected  were  overwhelming,  not  only 
of  the  objects  of  the  fund  and  general  subscriptions  to  it.  but  of  particular 
donations  of  great  magnitude.  Hon.  Caleb  Gushing,  who  then  rej^resented 
Mexico,  before  the  commission,  demurred,  and  the  demurrer  was  argued  in 
writing,  but  never  formally  decided.  After  some  delay,  I  began  to  fear  that 
the  life  of  the  joint  commission  would  expire  before  a  decision  on  it,  and  with- 
out further  delay  proceeded  to  examine  witnesses  and  file  their  depositions,  so 


90  History  of  flic  Bench  and  Bar  of  California. 

far  as  living  evidence  was  procurable.  A  point  of  great  materiality,  but 
specially  difficult  to  establish,  was  the  text  of  the  Marquis  of  Villa  Puente's 
deed ;  as  well  because  of  the  large  value  of  the- property  donated  ($400,000) 
as  by  reason  of  the  elaborate  definition  of  the  purposes  of  the  trust.  I  knew 
the  name  of  the  notary  before  Avhom  it  had  been  acknowledged  in  1735,  and 
believed  that  the  original  might  still  exist  in  the  archives  of  his  successor,  more 
Mexi-cano.  General  Rosekrans  happened,  opportunely,  to  be  going  to  Mexico 
on  business  of  his  own.  and  kindly  offered  to  take  charge  of  any  commission 
I  might  entrust  to  him.  I  furnished  him  with  a  power  of  attorney  from  the 
bishop,  to  demand  from  the  successor  of  the  notary  an  authenticated  copy  of 
the  instrument.  The  General  discovered  the  notary,  and  the  deed  was  found 
among  his  files,  but  the  gentleman  was  forbidden  by  some  government  officer 
to  certify  a  copy  of  it!  The  General,  however,  had  not  been  through  the 
school  of  the  Civil  War,  to  pay  much  attention  to  o1)jections  that  he  deemed 
unreasonable,  and  without  hesitation  brought  suit  against  the  notary  to  compel 
the  desired  copy.  The  Mexican  government  intervened  to  prevent  its  produc- 
tion, alleging  that  it  was  only  wanted  as  evidence  against  the  government  of 
tlie  Republic.  The  court,  to  its  honor,  decided  that  the  bishop  was  entitled 
to  the  copy  without  regard  to  the  uses  to  which  he  might  put  it,  and  it  came 
to  me  as  the  opime  spoils  of  Rosekrans'  successful  campaign,  authenticated 
solemnly,  and  preceded  by  the  judgment  roll  in  the  action  against  the  notary, 
which  gave  it,  of  course,  additional  force,  as  evidence,  by  showing  the  import- 
ance attached  by  the  adverse  party  to  its  suppression,  ''Hacrct  latcri  Icthalis 
arundo." 

Don  Manuel  Aspiros  succeeded  Mr.  Gushing  as  counsel  for  ^Mexico,  and 
(the  term  of  the  commission  having  been  prolonged),  argued  the  case  on  its 
merits.  His  ability  and  professional  attainments  I  need  not  speak  of.  His 
official  connection  with  the  state  department  of  Mexico,  and  consequent  famil- 
iarity with  its  records,  added  to  his  rich  stores  of  historical  and  legal  learning, 
made  him  a  most  formidable  antagonist.  He  honorably  declined  any  effort 
to  obscure  the  facts,  and  practically  accepted  my  history  as  a  true  statement 
of  them.  But  he  used  all  the  resources  of  his  great  professional  learning  and 
historical  erudition,  with  the  strength  of  a  giant,  and  the  dexterity  of  a  prac- 
ticed debater.  Though  our  conclusions  differed  toto  coelo,  I  could  not  fail 
to  admire  the  keenness  of  subtlety  of  his  argument. 

The  commissioners  differed  in  opinion,  each  writing  an  elaborate  statement 
of  his  views.  The  case  then  went  before  Her  Britannic  Majesty's  minister  at 
Washington,  as  umpire,  and  now  that  victory  was  in  sight,  I  had  plenty  of 
assistance.  The  case  was  argued  1)ef()re  him  not  only  by  myself,  but  by  Hon. 
Eugene  Casserly  and  Messrs.  P.  I'hiljips  and  Nathaniel  Wilson,  of  Washing- 
ton, whom  he  had  retained  to  aid  him.  For  my  own  part,  I  never  entertained 
a  doubt  as  to  the  result,  at  the  hands  of  a  publicist  of  the  rank  and  distinguished 
character  of  Sir  Edward  Thornton;  and  in  fact  he  justified  my  confidence  by 
deciding  in  our  favor,  in  Xoxember.  1875.     I  thought  his  ec|ual  division  of  the 


History  of  the  Bench  and  Bar  of  California.  91 

fund  between  Upper  and  Lower  California — the  one  a  sterile  mountain  chain, 
with  a  total  population  under  thirty  thousand  souls,  and  the  other  a  great  and 
growing  State,  with  a  population  of  over  half  a  million — and  the  denial  of 
interest  on  installments  in  arrear,  scarcely  fair  to  my  client.  Sir  Edward 
indeed,  in  his  opinion,  admits  that  he  was  not  unmindful  of  the  national  mis- 
fortunes and  poverty  of  Mexico,  and  as  he  saw  his  way  clear  to  be  merciful 
to  her,  far  be  it  from  me  to  censure  the  act. 

"Not  the  king's  crown,  nor  tlie  deputed  sword, 
"The  marshal's  truncheon,  nor  the  judge's  robe, 
"Becomes  them  with  one  half  as  good  a  grace 
"As  mere}'  does." 

He  determined  that  the  sum  annually  payable  by  Mexico,  to  the  church  of 
Upper  California  for  interest  on  the  'pious  fund'  was  the  half  of  $86,160.98, 
or  $43,080.99,  and  awarded  us  twenty-one  years'  income  at  that  rate,  amount- 
ing to  $904,700.79 — all  of  which  was  honorably  paid  by  Mexico  in  accord- 
ance with  the  terms  of  the  convention. 

After  the  conclusion  of  the  proceedings  I  bound  up  into  volumes  as  many 
copies  of  the  printed  papers  in  the  case  as  my  materials  enabled  me  to,  for 
deposit  in  public  libraries,  where  they  might  be  accessible  to  any  persons  to 
whom  in  the  future  they  might  prove  of  interest  or  value. 

JOHN  T.  DOYLE. 

Menlo  Park,  Cal. 


THE    BONANZA 
SUITS    OF     1877 

JOHN  H.   "BURKE 


ijb  t^  yb  c^3  !i;3  (^  ^  i^3  t^a  i^ 


HISTORY  of  the 
BENCH  and  BAR 
of  CALIFORNIA 


f-^^-j? 


THE  BONANZA  SUITS  of  1877 


In  1877  John  Trehane,  a  young  English  lawyer,  in  practice  at  San  Fran- 
cisco, satisfied  himself,  after  an  examination  of  the  books  of  the  Consolidated 
Virginia  and  California  mining  companies,  that  John  W.  Mackay,  James  G. 
Fair,  Jas.  C.  Flood  and  Wm.  S.  O'Brien,  directors  and  controlling  spirits  of 
those  companies,  were  transferring  the  assets  thereof  to  their  individual 
pockets  through  the  medium  of  certain  contracts,  made  with  the  companies 
which  they  had  organized  and  controlled,  as  will  be  explained  herein. 

Mr.  Trehane  endeavored  to  induce  some  one  to  begin  suit  upon  these 
causes  of  action,  but  without  avail.  He  finally  came  to  me  and  I  consented 
to  join  him,  lending  my  name  as  plaintiff. 

In  May,  1878,  I  began  an  action  in  the  old  12th  district  court  against  James 
C.  Flood,  the  estate  of  Wm.  S.  O'Brien,  John  W.  Mackay  and  James  G.  Fair 
to  recover  from  them  a  little  more  than  thirty-five  million  dollars,  by  reason  of 
the  misappropriation  of  the  funds  of  the  Consolidated  Virginia  Mining  com- 
pany. I  began  the  suit  as  a  stockholder  in  my  own  behalf,  and  that  of  all 
other  stockholders  who  saw  fit  to  join  in  the  action  or  contribute  to  the 
expense. 

The  complaint  was  demurred  to  and  the  demurrer  was  argued  at  length 
before  Judge  W.  P.  Daingerfield,  who  finally  decided  that  several  parties  and 
causes  of  action  were  improperly  joined  ;  and  thereupon,  T  began  a  series  of 
separate  actions,  as  hereafter  shown. 

An  action  was  begun  against  the  defendants  before  named  and  the  Pacific 
Mill  and  Mining  company,  which  they  owned  and  controlled,  fof  something 
over  twenty-six  million  dollars,  for  alleged  excessive  charges  in  milling  the 
ores  of  the  Consolidated  Virginia  Mining  company,  and  misappropriation  of 
its  bullion  through  the  manipulation  of  its  shmes  and  tailings. 

This  case  was  argued  at  length  on  demurrer  l)efore  Judge  J.  D.  Thornton, 
who  sustained  the  complaint  and  overruled  the  demurrer.  But  the  action  never 
came  to  final  trial,  as  all  the  suits  were  terminated  in  1881.  Had  this  cause 
been  tried,  I  should  have  produced  witnesses  to  prove  the  value  and  number  of 


96  History  of  the  Bench  and  Bar  of  California. 

every  bar  of  "Office  Bullion"  which  had  thus  been  appropriated  by  the  defend- 
ants to  their  own  use  and  amounting  to  many  millions.  I  had  witnesses  to 
prove  that  the  sweepings  of  the  mill,  which  the  defendants  claimed  as  their 
own,  often  contained  lumps  of  crude  bullion  as  big  as  a  plug  hat. 

The  next  case  was  for  $10,429,000,  and  w^as  begun  before  Judge  E.  D. 
Wheeler  in  the  19th  district  court.  The  cause  of  action  arose  out  of  the  trans- 
action had  by  James  C.  Flood,  while  a  director  of  the  Con.  Virginia  Mining 
company,  with  Thos.  H.  Williams,  David  Bixler,  M.  F.  Truett,  and  others, 
who  were  the  owners  of  small  outstanding  interests  in  the  ground  of  said 
company. 

It  was  proven  upon  the  trial  of  the  cause  (one  transaction  in  particular  will 
explain  all  others)  that  James  C.  Flood  purchased  the  ground  for  eighteen 
thousand  dollars,  causing  to  be  issued  in  payment  therefor,  to  himself,  the 
stock  of  the  company  which  was  worth  at  the  time  $180,000,  although  the  com- 
pany itself  had  the  ready  means  and  could  have  purchased  the  ground  for  the 
same  price  that  Mr.  Flood  secured  it  for  ($18,000).  The  market  price  of  the 
stock  so  issued,  w'ith  dividends  thereon,  subsequently  amounted  to  $10,429,000. 
This  cause  was  tried  before  Judge  J.  F.  Sullivan,  presiding  over  department 
No.  2  of  the  Superior  Court,  in  December,  1880,  and  all  the  testimony  was  pub- 
lished at  length  in  the  Evening  Bulletin.  The  defendants  were  represented 
by  Hall  McAllister.  T.  I.  Bergin  and  C.  J.  Hillyer.  ]\Iy  attorneys  were  S.  W. 
Holladay,  John  Trehane,  and  ex-Supreme  Judge  Nathaniel  Bennett. 

On  or  about  March  30th,  1881,  Judge  Sullivan  rendered  his  decision  to  the 
effect  that  I  was  entitled  to  recover  about  nine  hundred  and  thirty  thousand 
dollars,  which  was  the  amount  of  that  part  of  the  claim  not  barred  by  the 
statute  of  limitations.  His  decision  will  be  found  in  the  San  Francisco  Chron- 
icle and  Bulletin  of  about  that  date. 

An  action  was  also  begun  against  the  defendants  as  the  organizers  of  the 
Pacific  Wood,  Lumber  &  Flume  Co.,  for  alleged  excessive  charges  on  wood 
and  lumber  supplied  to  the  aforesaid  mine  and  amounting  to  $4,000,000. 

Separate  actions  were  also  begun  against  the  same  defendants  and  the 
Pacific  Refinery  and  Bullion  Exchange,  for  excessive  charges  in  refining 
bullion  of  the  Con.  Virginia  Mining  company;  against  the  Virginia  &  Gold 
Hill  Water  Co.,  for  excessive  charges  in  water  furnished  the  Con.  Virginia 
Mining  company ;  and  against  the  Nevada  Bank  of  San  Francisco  for  excessive 
discount  on  bullion.     The  total  amounts  claimed  being  $3,000,000. 

But  no  one  of  these  cases  was  ever  tried,  because  of  the  settlement  now  to 
be  mentioned. 

During  the  three  years  that  these  several  suits  were  in  progress,  numerous 
attempts  had  been  made  by  the  defendants  to  settle  the  same,  but  I  refused 
to  entertain  any  proposition  until  the  court  had  passed  on  my  legal  rights. 
During  the  whole  time  T  hafl  supported  myself  with  my  pen,  and  had,  both 
in  the  public  press  and  personally,  begged  the  larger  stockholders  to  join  me  in 


History  of  the  Bench  and  Bar  of  California.  97 

the  action,  by  their  own  attorneys,  or  to  pool  their  stock,  pending  the  result 
of  the  cases,  and  if  successful  to  pay  to  me  and  my  attorneys  a  percentage  of 
the  amount  recovered. 

I  remember  well  a  number  of  interviews  had  with  Peter  Chrystal,  one  of 
the  many  large  stockholders.  He  refused,  repeatedly,  to  do  anything.  A 
friend  of  mine  had  a  conversation  with  a  very  prominent  and  wealthy  capitalist 
who  was  bitterly  opposed  to  the  Flood  management  of  the  mine,  and  tried  to 
get  him  to  assist,  but  without  avail.  And  the  same  friend,  also,  had  a  conver- 
sation with  a  party  of  stockholders,  representing  claims  amounting  to  over 
eight  million  dollars,  which  they  could  have  recovered,  asking  them  to  agree 
to  contribute  25  per  cent  if  I  succeeded  in  recovering  the  amount  of  their 
demands. 

They  absolutely  refused  to  contribute  one  penny,  although  men  of  vast 
wealth,  and  openly  boasted  that  they  intended  to  participate  in  all  the  lienefits 
of  my  labors,  and  would  saddle  the  whole  expense  of  the  litigation  upon  me. 
And  since  I  had  begun  the  suits  in  my  own  behalf  and  that  of  all  other  stock- 
holders who  elected  to  join  or  contribute  to  my  expenses  and  as  the  complaint 
so  stated,  I  was  compelled  to  entertain  propositions  of  settlement,  as,  wnth  two 
exceptions,  none  of  the  other  stockholders  would  join  me  nor  contribute  to  the 
cost  of  the  suits.  And  with  the  consent  of  Mr.  S.  W.  Holladay  and  John 
Trehane,  my  attorneys,  and  Squire  P.  Dewey  and  John  L.  Noyes — the  only 
stockholders  who  had  shown  any  disposition  to  join  in  the  action,  I  settled 
the  cases  with  Hall  McAllister,  attorney  for  the  defendants,  much  against  my 
desire. 

The  full  terms  of  that  settlement  are  private,  but  I  have  never  heard  any 
dissatisfaction  expressed  by  any  of  the  parties  on  my  side  of  the  question  as  to 
such  settlement. 

After  the  cases  were  dismissed,  an  attempt  was  made  to  set  aside  the  dis- 
missals, but  the  court  held  that  for  three  years  I  had  publicly  sought  the  aid  of 
all  other  stockholders  in  prosecuting  said  suits,  but  without  avail,  and  that, 
since  they  had  compelled  me  to  prosecute  the  suits,  unaided.  I  was  entitled 

to  do  with  them  as  I  saw  fit. 

JOHX  H.  BURKE. 

Santa  Clara,  Cal. 


'. 


IRRIGATION  LAWS 
AND  DECISIONS 
OF  CALIFORNIA 

HON.  JOHN  ■©.    WOT^KS 


.^ 

r,         W 

t 

^K ' 

1 

■^^^^^■^^^^^^^Wpipj^ff 

/o/in  2>.    W^oryb 


t^t^c^c^c:^  cl^c^bE^dSbc^ 


HISTORY  of  the 
BENCH  and  BAR 
of  CALIFORNIA 


eg.  ejp  35)  i^  eji  go  eji  o|i  ejp  e^ 


IRRIGATION  LAWS  and  DECISIONS 
of  CALIFORNL\ 


In  treating  of  the  irrigation  laws  of  the  State,  three  classes  of  water  con- 
sumers must  be  considered,  viz:  (i)  riparian  owners;  (2)  individual  or  pri- 
vate appropriators,  and  (3)  appropriators  of  water  for  sale,  rental  or  distri- 
bution to  the  public.  These  three  classes  of  consumers  are  governed,  in  some 
respects,  by  entirely  different  principles  of  right,  and  by  different  laws.  There- 
fore, in  order  to  arrive  at  the  rights  of  each  and  the  laws  by  which  they  must 
be  governed,  they  must  be  treated  separately. 

But,  before  taking  up  the  questions  about  to  be  considered,  specifically,  a 
few  general  observations  upon  the  condition  and  effect  of  our  irrigation  laws 
may  not  be  out  of  place.  And,  in  the  beginning,  it  may  be  said  that  the  laws 
of  this  State  relating  to  this  most  important  subject,  are  exceedingly  crude  and 
unsatisfactory.  In  the  early  history  of  the  State,  water  was  diverted  and 
used  mainly  for  mining  purposes.  The  extent  to  which  the  waters  of  the  State 
would  be  called  upon  for  the  purpose  of  irrigation  for  agricultural  and  horti- 
cultural purposes,  particularly  in  the  southern  part  of  the  State,  was  not  thought 
of  in  the  earlier  stages  of  legislation  regulating  the  use  of  water.  W  hen  the 
importance  to  the  State  of  the  conservation  and  proper  use  of  the  waters  of  its 
running  streams  came  to  be  realized,  and  it  was  feared  that  they  might  be 
monopolized  by  corporations  for  purposes  of  gain,  the  law-making  power 
unwisely  enacted  such  legislation  as  to  discourage  the  investment  of  capital 
in  the  diversion,  storage  and  distribution  of  water,  by  which  the  State,  and  par- 
ticularly the  southern  part  of  it.  where  water  for  irrigation  purposes  must  be 
had,  if  at  all,  by  the  expenditure  of  large  sums  of  money  in  storage  reservoirs, 
in  wells,  underground  works  and  distributing  systems,  has  been  seriously  dam- 
aged and  its  growth  retarded  beyond  the  belief  of  the  unthinking,  whose  efforts 
have  been  directed.  ap])arcnt]y.  to  the  sui)])rcssi()n  of  corporations  organized 
to  develo])  and  sn])])l\'  walcr  to  the  puMic.  'I'lic  pro\ision  of  our  constitution, 
which  places  the  fixing  of  water  rates  in  the  hands  of  the  consumers  them- 
selves, or  tlicir  rcprescntatix  es.  instead  of  some  disinterested  court  or  body, 


102  History  of  ihe  Bench  and  Bar  of  Calif oviiia. 

is  a  striking  example  of  this  unwise,  not  to  say  vicious,  legislation.  And  the 
narrow  and  illil)eral  construction  placed  upon  the  constitution,  and  laws 
enacted  in  pursuance  of  its  provisions  by  courts  and  judges,  has  aggravated 
tlie  unjust  and  evil  effects  of  this  class  of  legislation. 

The  future  growth  and  prosperity  of  the  State  must  depend,  in  great 
measure,  upon  the  encouragement,  by  just  and  liberal  laws,  judicially  con- 
strued in  the  same  spirit  of  right  and  justice,  of  the  investment  of  capital  in 
works  for  the  diversion,  storage  and  distribution  of  subterranean  waters  and 
the  storm  waters  of  the  winter  months,  for  use  during  the  irrigation  season, 
and  for  the  protection  of  capital  already  invested  in  such  and  other  enterprises 
for  the  increase  and  appropriation  to  beneficial  uses  of  the  water  to  be  had 
l)y  the  legitimate  expenditure  of  capital.  By  this  it  is  not  meant  that  the 
vState  should  not  maintain  its  control  over  the  waters  of  its  streams,  or  reg- 
ulate, by  just  and  wholesome  laws,  the  appropriation  and  distribution  of  such 
waters,  with  a  view  to  pre\'enting  the  same  being  taken  up  and  monopolized 
for  private  gain  and  profit  by  the  exaction  of  unreasonable  rates  for  water 
used.  But  it  is  a  reproach  to  the  State  that  it  should  say,  by  its  constitution, 
to  every  individual  or  corporation  that  has  invested,  or  proposes  to  invest, 
money  in  an  enterprise  fraught  with  such  benefit  to  the  community  to  be 
supplied  with  water,  and  indirectly  to  the  whole  State,  "You  can  charge  no 
more  for  the  water  you  supply  than  those  to  whom  you  supply  it  shall  deter- 
mine to  be  just,  on  penalty  of  forfeiture  of  your  plant.'' 

This  is  practically  the  law  of  this  State,  as  will  appear  farther  along,  as 
it  relates  to  the  appropriation  of  water  for  sale,  rental'or  distribution.  As  a 
result  of  this  pernicious  course  of  legislation,  the  investment  of  capital  for  the 
development  and  increase  of  the  water  supply  of  the  State  has  almost  entirely 
ceased,  and  will  not  be  renewed  under  existing  laws. 

As  to  the  appropriation  of  water  for  private  use,  the  laws  of  the  State  are 
not  subject  to  the  same  criticism.  They  are  nothing  more  than  useless,  as 
we  shall  see  directly;  consequently  but  little  harm  can  come  from  them.  We 
need  a  new  body  of  laws  for  the  regulation  of  the  appropriation,  for  private 
use.  of  the  waters  of  the  streams  of  the  State,  that  will  protect  all  interests 
as  fully  as  human  laws  may  compass  that  object,  and  conserve  the  supply  and 
insure  its  distribution  to  the  best  advantage,  and  to  the  largest  area  of  land. 

The  writer  has  been  asked  to  supply  a  history  of  the  irrigation  laws  of  .^ 

the  State,  and  the  decisions  of  the  courts  thereon,  together  with  his  own  w 

views  as  to  the  ]jroper  construction  of  such  laws,  and  their  legal  effect,  and  as  | 

to  the  decisions  affecting  the  same.  This  is  a  perilous  undertaking.  The  great 
diversity  of  opinion  on  the  part  of  judges  and  lawyers  and  the  confusion 
growing  out  of  the  many  conflicting  and  wholly  irreconcilable  decisions 
relating  to  the  sul)ject.  renders  it  impossible  for  any  one  to  say  what  the 
present  construction  of  some  of  these  laws  is,  and  none  but  a  prophet  can 
foretell  what  conclusions  will  finallv  be  reached  by  the  courts  on  some  of  the 
most  miportant  questions  mvolved.  | 


History  of  the  Bench  and  Bar  of  California.  103 

But,  fortunately,  I  am  not  expected  to  determine  what  others  may  think, 
or  beheve,  respecting  the  irrigation  laws  of  the  State,  but  to  express  my  own 
views  and  convictions  as  to  the  effect  of  such  laws  and  what  has  been  said 
or  decided  regarding  them,  judicially  or  otherwise.  This  will  l)e  done  with  a 
full  appreciation  of  the  fact  that  whatever  may  be  said  on  many  of  the  im- 
portant questions  involved  will  meet  with  the  opposition  of  many  able  lawyers 
with  whom  I  have  come  in  contact  in  litigation  over  these  same  questions, 
and  for  whose  opinions  I  have  the  most  profound  respect.  Again,  the  views 
here  expressed  will  not  accord,  in  some  respects,  with  the  decisions  of  some 
of  the  highest  courts  of  the  country.  But  while  such  decisions  are  entitled  to 
respectful  consideration,  they  are  not  binding  upon  me  on  this  occasion,  and 
I  disagree  with  them  with  less  trepidation  because  so  many  others,  judges, 
courts  and  lawyers,  have  done  the  same.  Therefore,  I  shall  not  hesitate  to 
express  my  own  convictions,  giving  due  prominence  and  consideration,  at  the 
same  time,  to  the  expressed  views  of  others,  whether  agreeing  with  my  own 
or  not. 

OF  THE  LAWS  AFFECTING  THE  RIGHTS  OF  RIPARIAN 

OWNERS. 

We  have  no  statutory  laws  establishing  or  defining  the  nature  or  extent 
of  the  rights  of  riparian  owners.  Their  rights  are,  of  course,  modified,  or 
otherwise  affected,  to  some  extent,  by  statutory  provisions  relating  to  the 
appropriation  of  water,  but  such  statutes  are  not  directed  at  them  or  their 
rights.  However,  controversies  may  and  do  arise,  not  only  between  riparian 
owners  themselves,  claiming  water  from  the  same  stream,  but  between  them 
and  appropriators  of  water.  The  effect  of  existing  statutes  providing  for 
and  regulating  the  appropriation  of  water,  will  be  considered  when  we  come 
to  that  branch  of  the  subject.  In  this  connection,  they  will  be  taken  into 
account  only  indirectly  as  they  affect  the  conflicting  rights  of  the  riparian 
owners. 

The  question  of  the  extent  of  the  rights  of  riparian  owners  in  and  to  the 
waters  of  a  stream  flowing  past  their  lands,  for  purposes  of  irrigation,  has 
been  before  the  courts  of  this  State  many  times,  and  with  varying  results. 
The  leading  case  on  the  subject  is  Lux.  v.  Haggin.  69  Cal.  255.  There  the 
effort  was  made  to  define  and  measure  the  rights  of  a  riparian  owner  in  this 
State  by  the  common  law  doctrine  on  the  subject.  The  contest  was  a  pro- 
longed and  bitter  one.  The  court  was  divided  on  the  question  whether  the 
common  law  must  be  applied,  in  this  State,  or  whether  it  shouhf  be  modified 
by  the  existing  natural  conditions  prevailing,  on  the  ground  that  the  common 
law  doctrine,  if  maintained,  would  result  in  ruinous  conse(|uencos.  and  whether 
the  common  law  doctrine  was  modified  by  our  code  provisions  providing  for 
the  appropriation  of  water.  The  opinions  delivered  in  this  case  are  of  g^reat 
interest  and  exhibit  great  learning,  industry  and  research  on  the  part  of  the 


104 


History  of  the  Bench  and  Bar  of  California. 


justices  delivering  them.  The  majority  opinion  sustained  the  contention  that 
the  common  law  must  prevail,  and  that  the  court  must  not  be  swerved  from 
its  enforcement  by  the  plea  of  differing  conditions  and  injurious  conseciuences. 
But  the  court,  while  not  overuling  this  case,  has,  in  numerous  subsequent  cases, 
departed  from  it,  and  the  court,  in  that  and  later  cases,  has  done  precisely 
what  it  was  then  held  could  not  be  done,  allowed  the  necessity  for  some  dif- 
ferent rule  of  right,  as  between  the  riparian  owners  themselves  and  between 
them  and  the  appropriator,  to  prevail  over  the  law  as  it  was  then  declared  to  be. 

But.  strangely  enough,  while  the  main  question  in  that  case  was  whether 
the  common  law  right  of  a  riparian  owner  should  be  recognized  as  existing 
at  all  in  this  State,  or  not.  and  the  right  was  upheld,  manifestly,  only  because 
the  majority  of  the  court  felt  constrained  to  that  conclusion  by  strict  rules  of 
law,  that  and  later  cases,  or  some  of  them,  have  extended  the  right  of  a  ripa- 
rian owner  far  beyond  that  vested  in  him  at  common  law,  and  has  thus,  in 
a  measure,  if  not  entirely.  sul)verted  and  destroyed  the  common  law  riparian 
right. 

The  right  of  a  riparian  owner  at  common  law^  is  to  the  use  of  the  water 
as  it  naturally  flows,  in  quality,  and  without  diminution  in  quantity,  except  as 
it  may  be  diminished  by  the  reasonable  use  by  other  riparian  owners,  for 
domestic,  agricultural,  and  manufacturing  purposes.  And  as  this  right  is 
tlie  same  in  every  owner  of  land  bordering  on  the  stream,  there  can  be  no 
such  diversion  or  use  by  one  owner  as  will  materially  diminish  the  quantity 
or  deteriorate  the  quality  of  water  flowing  past  any  other  riparian  owner  on 
the  stream.     Or,  as  said  in  Angell  on  Watercourses,  Section  93  : 

"A  water  course  begins  ex  jure  naturae,  having  taken  a  covirse,  naturally, 
cannot  be  diverted.  Aqua  currit  et  debet  currere,  ut  currere  solebat,  is  also  the 
language  of  the  ancient  common  law.  That  is,  the  water  runs  naturally,  and 
should  be  permitted  thus  to  run,  so  that  all  through  whose  land  it  runs  may 
enjoy  the  privilege  of  using  it." 

Again  it  is  said  by  the  same  author.  Section  93a : 

"The  law  has  been  supposed  to  be  well  settled,  and  in  ni}'  opinion  is  nowhere 
more  clearly  stated  than  by  Lord  Kingsdown,  in  Miner  vs.  Gilmour,  12  Moore 
P.  C,  156.  He  says,  'By  the  general  law  applicable  to  running  streams,  every 
riparian  proprietor  has  a  right  to  what  may  be  called  the  ordinary  use  of  water 
flowing  past  his  land ;  for  instance,  to  the  reasonable  use  of  the  water  for 
domestic  purposes,  and  for  his  cattle,  and  this  without  regard  to  the  effect 
which  such  use  may  have  in  case  of  a  deficiency  upon  proprietors  lower  down 
the  stream.  But.  further,  he  has  a  right  to  the  use  of  it  for  any  purpose,  or 
what  may  be  deemed  the  extraordinary  use  of  it,  provided  he  docs  not  thereby 
interfere  with  the  rights  of  other  proprietors,  either  above  or  below  hint.  Sub- 
ject to  this  condition,  he  may  dam  up  a  stream  for  the  purposes  of  a  mill,  or 
divert  the  water  for  the  purpose  of  irrigation.  But  he  has  no  right  to  intercept 
the  regular  flozv  of  the  stream,  if  he  thereby  interferes  i^'ith  the  lazvful  use  of 
the  zvater  by  other  proprietors,  and  inflicts  upon  tlicin  a  sensible  injury.'  The 
use  in  all  the  above  cases  must  be  a  reasonable  one." 

Many  decided  cases  might  be  cited  to  the  same  effect,  but  it  is  unnecessary, 
as  the  rule,  thus  limited,  is  firmly  established  and  well  understood. 


History  of  the  Bench  and  Bar  of  California.  105 

But  in  the  very  case  in  which  this  doctrine  is  upheld  and  enforced  as  ap- 
plicable to  the  conditions  in  this  State,  it  is  held  that  a  riparian  owner  has  the 
right,  as  such,  to  a  reasonable  use  of  the  water  for  purposes  of  irrigation. 
Lux  V.  Haggin,  69  Cal.  255,  394. 
And  this  doctrine  has  been  adhered  to  in  some  of  the  later  cases : 
Harris  v.  Harrison,  93  Cal.  676; 

Wiggins  V.  Muscupiabe  L.  &  W.  Co.,  113  Cal.  182,  190; 
Smith  V.  Corbit,  116  Cal.,  587; 
Heilbron  v.  Land  &  Water  Co.,  80  Cal.  189. 
The  doctrine  thus  modified  and  the  reasons  for  it  are  thus  stated  in  Harris 
V.  Harrison,  supra  (p.  680)  : 

"According  to  the  common-law  doctrine  of  riparian  ownership  as  generally 
declared  in  England,  and  in  most  of  the  American  States,  upon  the  facts  in  the 
case  at  bar,  the  plaintiffs  would  be  entitled  to  have  the  waters  of  Harrison 
canyon  continue  to  flow  to  and  upon  their  land,  as  they  were  naturally  accus- 
tomed to  flow,  without  any  substantial  deterioration  in  quality  or  diminution 
in  quantity.  But  in  some  of  the  Western  and  Southwestern  States  and  terri- 
tories, where  the  year  is  divided  into  one  wet  and  one  dry  season,  and  irrigation 
is  necessary  to  successful  cultivation  of  the  soil,  the  doctrine  of  riparian  owner- 
ship has  by  judicial  decision  been  modified  or  rather  enlarged,  so  as  to  include 
the  reasonable  use  of  natural  water  for  irrigating  the  riparian  land,  although 
such  use  may  appreciably  diminish  the  flow  down  to  the  lower  riparian  pro- 
prietor. And  this  must  be  taken  to  be  the  established  rule  in  California,  at 
least,  where  irrigation  is  thus  necessary.  (Lux  vs.  Haggin,  69  Cal.,  394).  Of 
course,  there  will  be  great  difficulty  in  many  cases  to  determine  what  is  such 
reasonable  use ;  and  'what  is  such  reasonable  use  is  a  question  of  fact,  and 
depends  upon  the  circumstances  appearing  in  each  particular  case.'  (Lux  vs. 
Haggin,  69  Cal.,  394.)  The  larger  the  number  of  riparian  proprietors  whose 
rights  are  involved,  the  greater  will  be  the  difficulty  of  adjustment.  In  such 
a  case,  the  length  of  the  stream,  the  volume  of  water  in  it,  the  extent  of  each 
ownership  along  the  banks,  the  character  of  the  soil  owned  by  each  contestant, 
the  area  sought  to  be  irrigated  by  each, — all  these,  and  many  other  considera- 
tions, must  enter  into  the  solution  of  the  problem;  but  one  principle  is  surely 
established,  namely,  that  no  proprietor  can  absorb  all  the  water  of  the  stream 
so  as  to  allow  none  to  flow  down  to  his  neighbor." 

Under  this  declaration  of  the  rights  of  riparian  owners,  it  is  presumed 
that  such  owners  must  be  regarded  as  equally  entitled  to  share  in  the  waters 
of  the  stream  and  in  equal  proportions,  for  purposes  of  irrigation.  Tt  cer- 
tainly cannot  be  that  there  can  be  any  preferred  right  to  the  use  of  any 
given  quantity  of  water  as  the  result  of  a  prior  diversion  and  use  of  it.  And 
so  the  Supreme  Court  has  treated  their  rights  by  holding  that  the  court  may 
decree  division  of  the  water  between  them. 

Wiggins  V.  Muscupiabe  Water  Co..  i  13  Cal.  182. 

But  it  is  entirely  inconsistent  with  and  antagonistic  to  the  conclusion 
reached  in  the  first  case  cited,  that  the  common  law  riparian  right  prevails  in 
this  State,  because,  whenever  a  riparian  owner  "  diverts"  any  part  of  the 
natural  flow  of  the  stream,  which  he  must  do  in  order  to  use  it  for  puri)Oses 
of  irrigation,  he  necessarily  violates  the  common  law   right  of  every  other 


106  History  of  the  Bench  and  Bar  of  California. 

owner  along  the  stream  to  have  the  same  flow,  naturally,  and  without  dimin- 
ution. In  Lux  V.  llaggin,  the  common  law  riparian  right  is  clearly  enough 
defined  and  its  extent  and  limitations  are  emphasized  by  quotations  from  law- 
writers  on  the  subject  as  follows: —    (Pp.  390.  391.) 


I 


"As  to  the  nature  of  the  right  of  the  riparian  owner  in  the  water,  by  all 
the  modern  as  well  as  ancient  authorities,  the  right  in  the  water  is  usufnic- 
titarv.  and  consists  not  so  much  in  the  fluid  itself  as  in  its  uses,  including  the 
benefits  derived  from  its  momentum  or  impetus.  (Angell  on  Watercourses,  Sec. 
94.    and    notes.) 

"But  the  right  to  a  watercourse  begins  c.v  jure  naturae,  and  having  taken 
a  certain  course  naturally,  it  cannot  be  diverted  to  the  deprivation  of  the  rights 
of  the  riparian  owners  below.  So  say  all  the  common-law  text-books  and  the 
decisions.  (Angell  on  Watercourses,  Sec.  93.)  Aqua  eurrit,  et  debet  currere, 
ut  currere  solebat,  is  the  language  of  the  ancient  common  law.  (Angell  on 
Watercourses,  Sec.  93;  Shury  vs.  Pigott,  Bulst.,  399;  Countess  of  Rutland  vs. 
Bowler,  Palmer,   390-) 

"  'As  a  general  proposition,  every  riparian  proprietor  has  a  natural  and 
equal  right  to  the  use  of  the  water  in  the  stream  adjacent  to  his  land,  without 
diminution  or  alteration.'     (Washburn  on   Easements  and  Servitudes,  319.) 

"  'Riparian  proprietors  are  entitled,  in  the  absence  of  grant,  license  or 
prescription  limiting  their  rights,  to  have  the  stream  which  washes  their  lands 
flow  as  is  wont  by  nature,  without  material  diminution  or  alteration.'  (Gould 
on    Waters,    Sec.    204.) 

"  'Each  riparian  proprietor  has  a  right  to  the  natural  flow  of  the  water- 
course undiminished  except  by  its  reasonable  consumption  by  upper  proprietors.' 
'      (Angell  on  Watercourses,  c.  4,  passim.) 

"The  right  to  the  flow  of  the  water  is  inseparably  annexed  to  the  soil,  and 
passes  with  it,  not  as  an  easement  or  appurtenant,  but  as  a  parcel.  Use  does 
not  create,  and  disuse  cannot  destroy  or  suspend  it.  Each  person  through  whose 
land  a  watercourse  flows  has  (in  common  with  those  in  like  situation)  an  equal 
right  to  the  benefit  of  it  as  it  passes  through  his  land,  for  all  useful  purposes 
to  which  it  may  be  applied  ;  and  no  proprietor  of  land  on  the  same  watercourse 
has  a  right  unreasonably  to  divert  it  from  flowing  into  his  premises,  or  to 
obstruct  it  in  passing  from  them,  or  to  corrupt  or  destroy  it."  (Chief  Justice 
Shaw,  in  Johnson  vs.  Jordan,  2  Met.,  239.)" 

This  statement  of  the  law  cannot  be  reconciled  with  the  other  position 
taken  by  the  court,  in  the  same  case,  that  a  riparian  owner  may  make  a 
reasonable  use  of  the  water  for  irrigating  his  land.  The  distinction  between 
a  riparian  right  to  the  use  of  the  water  and  the  right  of  an  appropriator  is  here 
wholly  overlooked  or  disregarded.  The  right  of  the  one  is  to  use  the  water 
as  it  passes  without  diverting,  or,  if  diverting  it,  for  purposes  of  manufacture, 
for  example,  returning  it  to  the  natural  stream  again ;  and,  in  either  case, 
without  any  material  diminution  in  the  quantity  of  the  natural  flow.  The 
right  of  the  other  is  to  divert  or  take  from  the  natural  flow  of  the  stream 
all  or  a  part  of  the  water  there  fl(^wing,  without  obligation  to  return  it  to  its 
natural  channel  again.  So,  when  the  court  held  that  a  riparian  owner  might, 
by  virtue  of  his  right  as  such,  use  the  waters  of  the  stream  for  irrigation  pur- 
poses, it  clothed  him  also  with  the  rights  of  an  appropriator.  And  by  so  doing, 
it  brought  the  rights  of  riparian  owners  on  a  stream  in  direct  conflict  with  each 
other  1)ecause  the  dixersion  of  any  water  from  the  stream  for  the  puri)ose  of 


History  of  the  Bench  and  Bar  of  California.  107 

irrigation,  or  the  appropriation  of  it,  for  that  is  what  it  is,  essentially,  and 
as  matter  of  law,  must  of  necessity  be  an  interference  with  and  diminution 
of  the  right  of  every  other  riparian  owner  on  the  stream  for  the  reason  that  it 
does  divert  a  part  of  the  waters  of  the  stream,  never  to  be  returned,  and  there- 
fore diminishes  the  quantity  of  water  naturally  flowing  therein.  If  the  court 
had  held  that  so  long  as  there  was  water  in  the  stream  sufficient  for  use  by  all 
riparian  owners  for  irrigation,  as  well  as  other  purposes,  the  use  of  water 
for  purposes  of  irrigation  by  one  w^ould  not  amount  to  an  actionable  injury 
to  another  such  owner,  the  position  would  have  been  unassailable,  not 
because  the  court  was  right  in  respect  of  its  views  as  to  the  extent  of  the 
riparian  right,  but  because,  under  the  conditions  prevailing  in  this  State,  the 
use  of  surplus  w^ater  could  not  be  prevented  by  a  riparian  owner  when  such 
water  was  not  necessary  to  his  own  use  for  like  purposes.  But,  this  conceded, 
the  doctrine  of  the  decision  as  to  riparian  rights  loses  all  its  force  as  in  justice  it 
should. 

However  this  may  be,  the  most  important  question  disputed  and  decided 
in  the  case  referred  to,  viz :  whether  by  our  statutes  providing  for  the  appro- 
priation of  water  the  rights  of  riparian  owners  were  modified  or  taken  away, 
is  yet  to  be  noticed. 

It  must  be  conceded  that  the  right  of  appropriation  is  inconsistent  with  and 
antagonistic  to  riparian  rights.  The  two  cannot  exist  together,  and  partici- 
pate in  the  benefits  of  the  use  of  the  waters  of  the  same  stream.  This  is 
necessarily  so,  because  whenever  an  appropriator  diverts  any  part  of  a  stream 
from  the  natural  channel  and  conducts  and  uses  it  upon  his  land,  he  therebv 
diminishes  the  quantity  of  water  flowing  naturally  past  the  lands  of  the  ripar- 
ian owners  below  the  point  of  diversion.  Therefore,  the  exercise  of  the  right 
of  an  appropriator  infringes  upon  and  takes  from  the  right  of  the  riparian 
owner.  The  law-making  powers,  state  and  national,  in  providing  for  the 
appropriation  of  water,  must  have  done  so  wnth  knowledge  of  the  fact  that 
the  riparian  owner  was,  at  common  law,  entitled  to  have  the  whole  of  the 
waters  of  the  stream  flow  past  his  lands.  And,  when  the  legislature  of  this 
State  and  the  Congress  of  the  United  States  authorized  and  provided  for  the 
appropriation  of  the  stream,  or  any  part  thereof,  they  abrogated  the  common 
law  right  of  the  riparian  owner  to  the  extent  such  appropriation  was  permitted. 
In  our  legislation  there  is  no  limitation  of  the  amount  of  water  that  may  be 
taken  from  a  stream  by  appropriation.  The  right  extends  to  the  entire  flow 
of  the  stream.  This  being  so,  it  must  be  manifest  that  the  legislature  intended 
to  substitute  for  the  riparian  right  which  was  limited  to  lands  bordering 
on  the  streams  in  the  State,  and  confined  to  such  use  of  their  waters  as  W(~»uld 
make  them  of  but  little  benefit,  even  to  such  owners,  the  right  of  appro- 
priation, which  gives  the  right  to  the  use  of  the  entire  flow  of  every  stream 
in  the  State  for  all  legitimate  and  useful  purposes,  to  be  divided  equitablv 
to  jjroperty  owners  making  such  appropriation,  no  one  appropriator  to  take 


108  History  of  the  Bench  and  Bar  of  California. 

from  the  stream  more  than  is  reasonably  necessary  for  the  purposes  for  which 
lie  makes  the  appropriation.  And,  not  only  is  it  manifest  that  this  was  the 
intention  of  the  legislation  referred  to,  because  the  two  rights  are  directly 
conflicting  and  the  establishment  of  one  is  the  abrogation  of  the  other,  but 
such  legislation  was  obviously  for  the  best  interests  of  the  State.  This  view 
was  very  clearly  and  forcibly  put  by  Mr.  Justice  Ross  in  his  dissenting  opinion 
in  Lux  V.  Haggin.     He  says  (p.  450)  : 

"The  common-law  doctrine  of  riparian  rights  being  wholly  inconsistent 
with  and  antagonistic  to  that  of  appropriation,  it  necessarily  follows  that  when 
the  federal  and  State  governments  assented  to,  recognized,  and  confirmed,  with 
respect  to  the  waters  upon  the  public  lands,  the  doctrine  of  appropriation,  they 
in  effect  declared  that  that  of  riparian  rights  did  not  apply.  The  doctrine  of 
appropriation  thus  established  was  not  a  temporary  thing,  to  exist  only  until 
some  one  should  obtain  a  certificate  or  patent  for  forty  acres  or  some  other 
subdivision  of  the  public  land  bordering  on  the  river  or  other  stream  of  water.  i^r 

It  was,  as  has  been  said,  born  of  the  necessities  of  the  country  and  its  people,  ;' 

was  the  growth   of  years,   permanent   in   its   character,   and   fixed   the   status  of  . 

water  rights  with  respect  to  public  lands.     No  valid  reason  exists  why  the  gov-  J; 

ernment,   which    owned    both    the    land    and    the    water,    could    not    do    this.     It  "t 

thus  became,  in  my  judgment,  as  much  a  part  of  the  law   of  the  land  as  if  it  t 

had  been  written   in   terms  in   the   statute-books,  and   in   connection   with   which  | 

all  grants  of  public  land   from  either  government  should  be  read.     In  the  light  f 

of  the  history  of  the  State,  and  of  the  legislation  and  decisions  with  respect 
to  the  subject  in  question,  is  it  possible  that  either  government,  state  or  national, 
ever  contemplated  that  a  conveyance  of  forty  acres  of  land  at  the  lower  end  of 
a  stream  that  flows  for  miles  through  public  lands  should  put  an  end  to  subse- 
quent appropriation  of  the  waters  of  the  stream  upon  the  public  lands  above, 
and  entitle  the  grantee  of  the  forty  acres  to  the  undiminished  flow  of  the  water 
in  its  natural  channel  from  its  source  to  its  mouth?  It  seems  to  me  entirely 
clear  that  nothing  of  the  kind  was  ever  intended  or  contemplated.  Of  course, 
the  doctrine  of  appropriation,  as  contradistinguished  from  that  of  riparian 
rights,  was  not  intended  to,  and  indeed  could  not,  afifect  the  rights  of  those 
persons  holding  under  grants  from  the  Spanish  or  Mexican  governments  :  first, 
because  the  doctrine  is  expressly  limited  to  the  waters  upon  what  are  known 
as  public  lands;  and  secondly,  because  the  rights  of  such  grantees  are  protected 
by  the  treaty  with  Mexico  and  the  good  faith  of  the  government. 

"It  is  the  rights  of  such  riparian  proprietors  as  those  that  are  unaffected 
by  the  doctrine  of  appropriation,  and  those  are  the  riparian  rights  that  are 
excepted  from  the  operations  of  the  provisions  of  the  Civil  Code  in  relation 
to  'water  rights'  by  section  1422  of  that  code,  which  reads :  'The  rights  of 
riparian  proprietors  are  not  affected  by  the  provisions  of  this  title.'  That 
code,  as  well  as  the  other  codes  of  California,  went  into  effect  the  first  day 
of  January,  1873.  The  appellants  contend,  and  the  prevailing  opinion  holds, 
that  by  the  section  of  the  Civil  Code  just  quoted,  the  legislature  of  the  State 
declared  that  the  common-law  doctrine  of  riparian  rights  should  apply  to  all 
the  streams  of  the  State.  It  seems  very  clear  to  me  that  this  is  not  so,  for 
many  reasons.  Leaving  out  of  consideration  the  question  whether  it  lay  in 
the  power  of  the  State  to  nullify  the  doctrine  of  appropriation  established  by 
the  United  States  with  respect  to  the  waters  flowing  over  their  lands, — estab- 
lished, too,  in  pursuance  of  the  policy  the  State  itself  had  previously  adopted, 
and  for  the  advancement  of  the  interests  of  the  people  of  the  State,  I  find  noth- 
ing in  the  Civil  Code,  or  in  any  of  the  other  codes,  to  indicate  any  intention 
on  the  part  of  the  legislature  of  the  State  to  return  to  the  doctrine  of  riparian 
rights  with  respect  to  the  waters  upon  the  public  lands.     On   the  contrary,  the 


History  of  the  Bench  and  Bar  of  California.  109 

code  enacts  in  statutory  form,  in  language  as  clear  as  language  can  be  made, 
the  theretofore  prevailing  law  of  appropriation.  Title  8  of  the  Civil  Code  is 
headed  'Water  Rights.'  The  first  section  of  that  title — section  1410  of  the 
code — declares  :  'The  right  to  the  use  of  running  water,  flowing  in  a  river  or 
stream,  or  down  a  canyon  or  ravine,  may  be  acquired  by  appropriation.' 

"Can  anything  be  clearer?  By  the  common  law,  the  water  flowing  in  a 
river  or  stream,  or  down  a  canyon  or  ravine,  could  not  be  acquired  by  appro- 
priation, and  must  continue  to  flow  in  its  natural  channel  undiminished  in 
quantity  and  unaffected  in  quality.  Could  there  be  any  clearer  declaration  of 
the  fact  that  the  common-law  doctrine  of  riparian  rights  should  not  apply  to 
the  streams  of  this  State  than  is  found  in  this  declaration  of  the  statute  that 
the  waters  of  such  streams  may  be  acquired  by  appropriation?" 

This  paper  cannot  be  extended  by  any  attempt  to  review  the  authorities 
bearing  on  this  important  question,  nor  is  it  necessary.  They  were  fully 
considered  in  Luz  v.  Haggin,  up  to  that  time,  and  there  has  been  practically 
no  change  in  the  attitude  of  the  Supreme  Court  on  the  subject,  except  as  the 
Court  has  given  way  in  some  cases  to  the  absolute  necessity  of  modifying  the 
strict  rule  of  the  common  law  as  to  riparian  rights  without  overruling  Lux 
V.  Haggin,  or  establishing  any  new  rule  of  law  as  between  riparian  owners 
and  appropriators. 

But  Section  1422  of  the  Civil  Code  should  not  be  overlooked.  It  provides 
in  terms : 

"The  rights  of  riparian  proprietors  are  not  affected  by  the  provisions  of 
this   title." 

To  give  full  force  and  effect  to  the  language  of  this  section  of  the  Code 
as  applying  to  common  law  riparian  rights,  would  be  to  nullify  entirely  every 
other  provision  of  the  title  of  the  code  relating  to  and  authorizing  the  appro- 
priation of  water,  of  which  it  is  a  part,  because  there  could  by  no  possibility  be 
an  appropriation  of  any  part  of  a  stream  of  water  without  affecting  such  ripa- 
rian rights.  Probably  the  only  construction  that  can  reasonably  and  properly  be 
given  to  this  section,  in  connection  with  other  provisions  authorizing  and  regu- 
lating the  appropriation  of  water,  is  the  one  given  to  it  by  Justice  Ross  in  his 
dissenting  opinion  above  quoted  from,  viz :  that  the  reservation  of  riparian 
rights  from  the  effect  of  the  provision  for  the  appropriation  of  water  must 
be  confined  to  certain  riparian  rights  of  those  persons  holding  under  grants 
from  the  Spanish  or  Mexican  governments,  "because  the  doctrine  is  expressly 
limited  to  the  waters  upon  what  are  known  as  public  lands ;  and  secondly, 
because  the  rights  of  such  grantees  are  protected  by  the  treaty  with  Mexico 
and  the  good  faith  of  the  government." 

Such  a  construction  will  give  effect  to  the  section  referred  to  and  preserve 
the  right  of  appropriation  given  by  other  sections  of  the  title.  This  section 
was  repealed  in  1887,  reserving  vested  rights.     ( v^tatutes  1887.  p.  T14. ) 

But  as  practically  all  riparian  lands  had  passed  into  jirivate  ownership 
before  its  repeal,  this  action  is  of  but  little  consequence. 

Other  of  the  .semi-arid  States  have  taken  quite  a  different  view  of  this 
(|uestion  of  riparian  rights.     It  may  he  of  interest,  in  this  connection,  to  note 


110  History  of  the  Bench  and  Bar  of  California. 

the  position  taken  by  law-makers  and  courts  of  other  States  respecting  this 

important  question.     The  case  of  Stowel  v.  Johnson,  26  Pac.  Rep.  290.  is  an 

interesting  one.     In  that  case,  the  Supreme  Court  of  Utah  said : 

"Riparian  rights  have  never  been  recognized  in  this  territorj^  or  in  any 
State  or  territory  where  irrigation  is  necessary ;  for  the  appropriation  of  water 
for  the  purpose  of  irrigation  is  entirely  and  unavoidably  in  conflict  with  the 
common-law  doctrine  of  riparian  proprietorship.  If  that  had  been  recognized 
and  applied  in  this  territory,  it  would  still  be  a  desert ;  for  a  man  owning  ten 
acres  of  land  or  more,  near  its  mouth,  could  prevent  the  settlement  of  al)  the 
land  above  him.  For  at  common  law  the  riparian  proprietor  is  entitled  to  have 
the  water  flow  in  quantity  and  quality  past  his  land  as  it  was  wont  to  do  when 
he  acquired  title  thereto,  and  this  right  is  utterly  irreconcilable  with  the  use 
of  water  for  irrigation.  The  legislature  of  this  territory  has  always  ignored 
this  claim  of  riparian  proprietors,  and  the  practice  and  usages  of  the  inhabitants 
have  never  considered  it  applicable,   and   have  never   regarded   it." 

See  Kinney  on  Irrigation,  Sees.  272,  273,  412,  424,  442,  457,  467,  477, 
494,  508,   517,  547,  573; 

Reno  Smelting  Co.  v.  Stevenson,  21  Pac.  Rep.,  317; 

Atchison  v.  Peterson,  20  Wall.,  507. 
One  of  the  states  has  made  the  common  law  doctrine  of  riparian  rights  a 
part  of  its  organic  law.  But  in  most  of  them,  the  law-making  power  has  left  the 
subject  severely  alone,  so  far  as  any  direct  legislation  on  the  subject  is  con- 
cerned, but  the  courts  must  deal  with  it  without  statutory  aid  or  direction.  But 
as  this  paper  is  to  deal  only  with  the  irrigation  laws  and  decisions  of  California,  J 

it  would  be  out  of  place  to  go  extensively  into  the  laws  and  decisions  of  other 
States.     They  will  be  referred  to,  therefore,  only  in  a  brief  way,  and  mainly  | 

for  purposes  of  illustration,  and  with  a  view  of  ascertaining  the  law  as  it  is  ^ 

in  this  State,  together  with  any  suggestions  that  may  be  made  as  to  desirable 
changes  and  modifications  of  our  own  laws.  As  the  law  of  this  State  stands 
today,  the  common  law  of  riparian  rights  is  in  force.  But  those  rights  are  so 
entirely  opposed  to  the  best  interests  of  the  State  that  they  are  being  but 
little  regarded  in  the  actual  distribution  and  use  of  water,  and  therefore  the 
conclusion  of  the  Supreme  Court  that  they  must  be  respected,  as  existing  rights, 
in  this  State,  has  not  been  as  harmful  as  was  at  first  anticipated.  It  is  believed 
that  one  of  the  strongest  reasons  for  this  is  that  the  owners  of  riparian  rights 
have  found  that  in  order  to  make  their  rights  of  any  value,  for  purposes  of 
irrigation,  they  must  become  appropriators  of  the  water.  And  the  Supreme 
Court  has  practically  nullified  the  common  law  right  to  water  by  recognizing 
and  making  part  of  it  the  right  of  appropriation  for  irrigation.  The  practical 
effect  of  it  really  is  to  give  the  owner  on  the  stream  a  preferred  right  to 
appropriate  so  much  of  its  waters  as  he  may  reasonably  need  for  the  irrigation 
of  his  riparian  lands. 

Harris  v.  Harrison,  93  Cal.  676. 
And  while  the  Court  has  enlarged  the  right  of  the  riparian  owner,  by 
allowing  the  diversion  and  use  of  the  waters  of  the  stream  for  irrigation,  it 
has,  on  the  other  hand,  limited  his  right  by  holding  that  he  cannot  complain 


History  of  the  Bench  and  Bar  of  California.  Ill 

of  an  appropriation  of  a  part  of  the  stream  above  him,  when  the  water  diverted 
would  not  be  used  by  him. 

Modoc  L.  &  L.  S.  Co.  v.  Booth,  102  Cal.  151,  156. 

But  his  injury  by  an  unlawful  diversion  cannot  be  held  to  be  inconsiderable 
because  it  is  incapable  of  ascertainment  or  cannot  be  measured  in  damages. 
Heilbron  v.  Canal  Co.,  75  Cal.  426. 

This  is,  of  course,  an  infringement  upon  the  common  law  riparian  right 
of  the  land  owner,  which  entitled  him  to  the  flow  of  the  entire  stream  undi- 
minished in  (juantity.  Under  the  common  law  doctrine,  the  question  whether 
he  could  use  the  water  in  no  way  affected  or  limited  his  right.  It  was  simply 
a  giving  way  by  the  Supreme  Court  to  the  necessity,  growing  out  of  the  pre- 
vailing conditions  in  this  State,  to  curtail  the  common  law  right  of  the  riparian 
owner  in  order  to  conserve  the  waters  of  the  State  and  allow  its  more  extended 
use. 

But  the  very  same  thing  that  would  justify  the  court  in  enacting  and  en- 
forcing this  limitation  of  the  common  law  right  would  have  justified  it  equally 
in  holding,  in  the  first  instance,  that  the  common  law  right  was  not  applicable 
to  the  conditions  prevailing  in  this  State,  and  that  the  common  law  respecting  it 
was  never  in  force  here. 

The  right  of  the  riparian  owner,  as  thus  expanded  and  limited  to  suit 
the  exigencies  of  the  situation,  by  the  Supreme  Court,  is,  according  to  the 
decided  cases  in  this  State,  the  subject  of  sale  and  transfer  by  him,  and  may 
be  lost  by  grant,  condemnation  or  prescription. 
Gould  V.  Stafford,  91  Cal.  146; 
Alta  Land  &c  Co.  v.  Hancock,  85  Cal.  219; 
Sprague  v.  Heard,  90  Cal.  221. 

But  this,  again,  is  wholly  inconsistent  with  the  common  law  right  which 
is  a  part  of  the  land  to  which  it  is  annexed.  Of  course,  he  could  grant  or  con- 
vey his  right  with  the  land  of  zuJiich  it  is  a  part,  but  not  otherwise,  because 
when  severed  from  the  land  it  is  no  longer  a  riparian  right,  but  that  right  is 
wholly  destroyed.  Therefore,  it  is  certainly  an  error  to  say  that  a  riparian 
right  may  be  conveyed  separate  from  the  land.  The  party  to  whom  the  con- 
veyance is  made  may  obtain  the  right  to  the  use  of  the  water,  but  it  is  no  longer 
a  riparian  right. 

But  "use  cannot  create  and  disuse  cannot  destroy  or  suspend  it." 
Lux  V.  Haggin,  69  Cal.  391  ; 
Stanford  v.  Felt,  71  Cal.  249. 

And  the  lease  for  a  definite  term  of  the  right  of  such  owner  to  the  use 
of  the  water  does  not  estop  him  from  asserting  his  riparian  right  after  the 
cx])iration  of  such  lease. 

Swift  v.  Goodrich.  70  Cal.   103. 

The  right  of  an  a])pr()])riator  acf|uircd  l)ctoro  a  riparian  (^wncr  secures 
liis  title  from  the  United  States  has,  as  against  sucli  owner,  a  |M'ior  right  to 


112  History  of  the  Bench  and  Bar  of  California. 

the  water  appropriated  by  him  and  reasonably  necessary  for  the  purposes  for 
which  it  has  been  appropriated. 

Osgood  V.  Eldorado  Water  and  Deep  Gravel  Mining  Co.,  56  Cal.  571 ; 

Faulkner  v.  Rondoni,  104  Cal.  140; 

Ramelli  v.  Irish,  96  Cal.  214.  / 

And  it  is  not  necessary  that  the  appropriation  shall  be  made  by  a  compliance  | 

with  the  Code  provisions  regulating  the  same,  but  an  actual  diversion  and  use 
of  the  water  for  a  beneficial  purpose  is  just  as  effective  to  the  extent  of  such  ! 

diversion  and  use  as  if  the  statute  has  been  followed. 

A\'ells  V.  Mantes,  99  Cal.  583 ; 

De  Necochea  v.  Curtis,  80  Cal.,  397.  ' 

The  rights  of  riparian  owners  will  be  further  touched  upon  in  considering  : 

the  right  of  appropriators  now  to  be  taken  up.  While  it  has  seemed  necessary 
to  treat  of  each  of  these  rights  separately,  it  is  desired  to  avoid  mere  repetition 
as  far  as  possible. 

OF  THE  RIGHTS  OF  THE  APPROPRIATOR  OF  WATER  FOR 

PRIVATE  USE. 

This  branch  of  the  subject  has  been  anticipated  somewhat  in  what  has  been 
said  in  discussing  the  questions  relating  to  riparian  rights.  But  it  calls  for  a 
more  specific  consideration.  In  treating  of  this  subject,  it  is  important  to 
inquire : 

1.  WHiat  water  is  the  subject  of  appropriation; 

2.  For  what  purposes  it  may  be  appropriated ; 

3.  Where  it  may  be  appropriated ; 

4.  How  it  may  be  appropriated ; 

5.  The  effect  of  the  appropriation  ;  ^ 

6.  How  the  right  acquired  by  appropriation  may  be  lost. 
JVhat  zi'afer  may  be  appropriated. 

By  our  code  the  right  of  appropriation  is  confined  to  "running  water 
flowing  in  a  river  or  stream  or  down  a  canyon  or  ravine."  f 

Civil  Code,  Section  1410. 
This  would  undoubtedly  include  any  and  all  water  courses  in  the  State. 
But  what  constitutes  a  water  course  or  "running"  water  is  not  always  easy  | 

to  determine.  Where  water  connected  with  or  augmenting  the  flow  of  a 
stream  ceases  to  be  running  water,  within  the  meaning  of  the  appropriation 
laws,  and  must  be  classed  as  "percolating"  water,  is  not  always  easy  of  solu- 
tion. And  this  is  important,  because  percolating  water  is  not  the  subject 
of  appropriation,  but  is  a  part  of  the  body  of  the  soil  in  which  it  is  found,  a- 

and  may  be  taken  out  by  the  owner  of  the  land,  no  matter  how  injurious 
such  action  on  his  part  may  be  to  an  adjoining  land  owner. 

Gould  v.  Eaton,  iii  Cal.  639; 

Hanson  v.  McCue.  42  Cal.  303; 


History  of  the  Bench  and  Bar  of  California.  113 

Southern  Pacific  R.  R.  Co.  v.  Dufour,  95  Cal.  615; 

Vineland  Irr.  Dist.  v.  Aziisa  Irr.  Co.,  126  Cal.,  486. 
But  running  water,  as  contradistinguished  from  water  percolating  through 
the  soil,  may  be  appropriated,  subject,  of  course,  to  the  rights  of  riparian 
owners  and  prior  appropriators. 

It  is,  perhaps,  more  than  ordinarily  difficult  to  determine,  in  this  State, 
whether  water  found  underground  is  percolating  or  running  water,  on  account 
of  the  natural  conditions  that  prevail  here.  Along  the  course  and  at  the  mouth 
of  almost  every  canyon  or  ravine  in  the  State  will  be  found  valleys  com- 
posed, in  large  part,  of  gravel  and  boulders  through  which  water  can  pass 
with  more  or  less  freedom ;  and  the  beds  of  the  streams  of  the  State  are  usually 
composed  of  the  same  material  of  varying  depths,  the  bed  rock  rising  and  fall- 
ing, and  in  the  valleys  through  which  it  passes  spreading  out  to  varying 
widths,  thus  forming  successive  reservoirs  along  the  course  of  the  streams, 
of  all  sizes  and  depths,  with  one  large  reservoir  in  the  valley  below.  Where 
these  natural  conditions  prevail,  the  running  stream  undoubtedly  stores  these 
natural  reservoirs  with  water,  year  after  year,  aided,  in  many  cases,  by  springs 
and  other  sources  of  supply,  and  the  subterranean  w^aters  move  on  to  the  sea 
with  the  surface  flow  above,  but  on  account  of  the  obstructions  in  its  course, 
while  it  is  moving  water,  it  moves  more  or  less  slowly,  depending  upon  the 
nature  of  the  deposit  through  which  it  passes,  whether  coarse  or  fine  sand, 
gravel  or  boulders.  This  subterranean  body  of  water  is  connected  with  the 
surface  flow  and  supports  and  maintains  it,  thus  augmenting  the  amount  of 
water  that  may  be  derived  for  irrigation  by  the  appropriation  of  the  surface 
flow.  This  leads  to  the  inquiry  that  has  received  the  attention  of  the  courts : 
Is  this  subterranean  flow  a  part  of  the  stream,  or,  with  the  surface  flow  above 
it,  the  stream ;  or,  to  state  it  differently :  Is  it  "running  water''  within  the 
meaning  of  the  code.  If  it  is,  it  may  be  appropriated ;  otherwise,  not.  As  to 
what  is  necessary  to  constitute  a  watercourse,  Mr.  Angell  in  his  work  on 
Watercourses,  Sec.  4,  says : 

"A  watercourse  consists  of  bed,  banks,  and  zvatcr;  yet  the  water  need 
not  flow  continually;  and  there  are  many  watercourses  which  are  sometimes 
dry.  There  is,  however,  a  distinction  to  be  taken  in  law  between  a  regular 
flowing  stream  of  water,  which  at  certain  seasons  is  dried  up,  and  those  occa- 
sional bursts  of  water,  which,  in  times  of  freshet,  or  melting  of  ice  and  snow, 
descend  from  the  hills  and  inundate  the  country.  To  maintain  the  right  to  a 
watercourse  or  brook,  it  must  be  made  to  appear  that  the  water  usually  flows 
in  a  certain  direction,  and  by  a  regular  channel,  with  banks  and  sides.  It  need 
not  be  shown  to  flow  continually,  as  stated  above,  and  it  may  at  times  be  dry; 
but  it  must  have  a  well-defined  and  substantial  existence.  A  mere  right  of 
drainage  over  the  general  surface  of  land  is  very  different  from  the  right  to 
the  flow  of  a  stream  or  brook  across  the  premises  of  another.  'It  is  not  essen- 
tial to  a  watercourse  that  the  banks  should  be  absolutely  unchangeable,  the  flow 
constant,  the  size  uniform,  or  the  waters  entirely  unmixed  with  earth,  or  flow- 
ing with  any  fixed  velocity;  but  tin-  law  does  not  and  cannot  fix  the  limits  of 
variation  in  these  particulars. '  " 


114  History  of  the  Bench  and  Bar  of  California. 

And  the  decided  cases  in  this  and  other  States  agree,  substantially,  with 
this  definition  or  description  of  a  watercourse. 

Gould  V.  Eaton,  m  Cal.  639; 

Hoyt  V.  City  of  Hudson,  27,  Wis.  656 ; 

Earl  V.  DeHart,  12  N.  J.  Eq.  280; 

McClure  v.  City  of  Red  Wing,  28  Minn.  186; 

Gibbs  V.  Williams,  25  Kan.  214; 

Weis  V.  City  of  Madison,  75  Ind.  241 ; 

Pyle  V.  Richards,  17  Neb.  180; 

Eulrich  V.  Richter,  37,  Wis.  226; 

Luther  v.  \\'annisimmet  Co.,  9  Cush.  171  ; 

Simmons  v.  Winters,  27  Pac.  Rep.  7 ; 

Barnes  v.  Sabron,  10  Nev.  217. 
But  in  most  of  the  cases  cited,  the  courts  were  dealing  with  the  distinction 
between  water  courses  and  mere  surface  water  resulting  from  rainfall  and 
other  temporary  or  intermittent  causes.  The  distinction  we  are  striving  to 
arrive  at  is  that  between  "running"  and  "percolating"  water.  It  is  not  diffi- 
cult, except  where  the  subterranean  water  is  not  connected  in  any  apparent 
way  with  a  running  stream,  either  above  or  under  ground.  But  if  it  is  con- 
nected with  a  running  stream,  the  question  to  be  determined  is  whether  it  of 
itself  constitutes  a  water  course  within  the  proper  legal  meaning  of  the  term, 
or  is  it  a  part  of  such  stream.  If  it  is  either  it  is  running  water  and  may  be 
api)ropriated  under  our  code.  The  fact  that  it  runs  under  ground  in  no  way 
affects  the  (|uestion. 

City  of  Los  Angeles  v.  Pomeroy,  124  Cal.,  597. 

\'ineland  Irr.  District  v.  Azusa  Irr.  Co.,  126  Cal.  486. 

In  the  last  case  cited,  the  court  said  (pp.  494,  495)  : 

"It  is  essential  to  the  nature  of  percolating  waters  that  they  do  not  form 
part  of  the  body  or  flow,  surface  or  subterranean,  of  any  stream.  They  may 
either  be  rain  waters,  which  are  slowly  infiltrating  through  the  soil,  or  they 
may  be  waters  seepinp^  through  the  banks  or  bed  of  a  stream,  which  have  so 
far  left  the  bed  and  the  other  waters  as  to  have  lost  their  character  as  part 
of  the  flow.  If  these  waters  which  the  court  describes  were  in  fact  percolating 
waters,  then  plaintiff  had  the  unouestioned  right  to  take  them  by  its  tunnel ; 
and,  even  if  injury  resulted  to  other  appropriators  or  riparian  owners  upon 
the  stream,  they  could  not  be  heard  to  complain.  Yet  the  court  grants  these 
defendants  an  injunction  against  plaintiff  to  restrain  it  from  taking  such 
waters.  The  findings,  therefore,  must  be  construed — and  they  are  fairly  sus- 
ceptible of  this  construction — to  mean  that  plaintiff  was  drawing  its  waters 
from  within  the  bed  and  channel  of  the  stream,  and  from  its  sub-surface  flow. 
That  otic  may  be  a  lawful  appropriator  of  such  zvaters  there  can  be  no  ques- 
tion. To  hold  otherwise  would  be  to  deprive  vast  tracts  of  arid  land  of  waters 
thus  obtained  and  nozv  beneficially  used  and  employed  upon  them,  and  limit 
the  legal  taking  of  'waters  to  the  surface  How  alone.  The  existence  of  a  well- 
defined  sub-surface  flow  within  the  bed  and  banks  of  streams  such  as  this  is 
well  recognized.  Says  Kin.  Irr..  Sec.  44:  'At  certain  periods  of  the  year  water 
flows  on  the   surface   in    a    well-defined   course,   and   there   is   at   times   what    is 


History  of  the  Bench  and  Bar  of  California.  115 

known  as  the  'under-flow.'  This  is  the  broad  and  deep  subterranean  volume 
of  water,  which  slowly  flows  through  the  sand  and  gravel  underlying  the  most, 
if  not  all,  the  streams  which  traverse  the  country  adjacent  to  the  mountain 
systems  of  the  arid  regions.  These  underground  streams  are  probably  much 
greater  in  volume  in  some  cases  than  the  water  upon  the  surface,  and  are,  as 
far  as  rights  of  appropriation  or  riparian  rights  are  concerned,  but  a  valuable 
portion  of  the  well-defined  surface  stream.'  Indeed,  illustration  of  the  fact  that 
the  trial  court  itself  must  of  necessity  have  considered  that  the  taking  of  sub- 
terranean waters  from  the  stream  by  means  of  such  as  those  employed  by 
plaintiff  was  a  legitimate  mode  of  appropriation  is  furnished  by  the  finding 
that  the  defendant,  the  Azusa  Water  Development  &  Irrigation  Company,  gave 
notice  of  appropriation  as  requirel  by  the  Code,  and  proceeded  by  its  tunnel 
to  develop  and  secure  this  underflow  in  manner  precisely  that  employed  by 
plaintiff,  and  the  court  distinctly  finds  that  it  was  a  legal  appropriator  of 
waters   from    this    same    stream. 

"Wc  therefore  hold  it  to  be  the  laiv,  and  zue  think  it  to  be  a  moderate  and 
just  exposition  thereof,  that  one  may,  by  appropriate  zvorks,  develop  and  secure 
to  useful  purposes  the  sub-surface  Hoiv  of  our  streams,  and  become,  with  due 
regard  to  the  rights  of  others  in  the  stream,  a  legal  appropriator  of  waters  by 
so  doing.  That  plaintifif  thus  was,  at  the  time  of  the  institution  of  its  action, 
an  appropriator,  permits  of  no  doubt,  but  its  appropriation  was  legal  only  so 
far  as  its  taking  did  not  imperil  or  impair  the  rights  of  others  superior  to  its 
own.  One  may  not,  of  course,  tunnel  into  the  bed  of  such  a  stream,  or  dam 
its  underground  flow,  and  by  such  means  draw  away  either  subterranean  or  sur- 
face waters  the  rightful  use  to  which  has  been  secured  by  others.  If,  upon  the 
other  hand,  one  can,  by  development,  obtain  subterranean  waters  without  injury 
to  the  superior  rights  of  others,  clearly  he  should  be  permitted  to  do  so." 

This  is  the  declaration  of  the  Supreme  Court  of  the  State  on  the  suhject, 
and  states  definitely  the  question  of  law  involved,  establishing  the  right  of 
appropriation  of  subterranean  waters  constituting  or  forming  part  of  a 
"stream."  This  leaves  only  the  question  of  fact  whether  or  not,  in  each  case, 
the  water  in  controversy  is  in  fact  a  part  of  the  stream,  or  is  percolating  water. 
This  question  of  fact  may  not  always  be  easy  of  solution.  Where  the  dividing 
line  between  what  shall  be  held  to  be  running  water  and  what  mere  percolating 
water,  shall  be  drawn,  must  depend  upon  the  facts  in  each  case.  The  law- 
applicable  to  the  facts,  when  found,  is  definitely  and  rightly  settled.  It  is  so 
clearly  to  the  best  interests  of  the  State  that  all  flowing  water  shall  be  subject 
to  appro])riation  so  that  the  same  shall  lie  conserved  and  a]iplic(l  tii  beneficial 
uses,  that  in  all  cases  where  there  is  doul)t  as  to  the  class  in  which  a  given 
water  supply  belongs,  the  doubt  should  l)e  resolved  in  favor  of  its  being  riui- 
ning  water  and  subject  to  appropriation. 

Btit  one  of  the  most  interesting  questions  of  fact  likely  to  arise  in  cases 
of  conflict  between  appropriators  of  the  surface  flow  of  the  stream  and  appro- 
priators  of  the  subterranean  f\nw  is  how  far  the  diversion  of  the  undergroimd 
flow  is  an  encroacliment  on  the  viglits  of  the  apjiropriator  of  the  surface  flow. 
Tt  is  not  infrec|uently  the  case  that  the  bed  of  the  stream  is  several  hundred  feet 
wide  from  bank  to  bank,  while  the  stream  flowing  on  the  surface  covers  but 
a  few  feet.  Of  course  a  surface  dam  or  other  obstrtiction  by  which  the  surface 
flow  is  diverted  does  not  interce])!  the  undergi-otuid  flow,  but  allows  it  to  pass 


116  History  of  the  Bench  and  Bar  of  California. 

on  down  stream.  The  water  thus  allowed  to  pass,  whether  it  be  immediately 
under  the  surface  stream  or  to  one  side  of  it,  but  within  its  banks  is  a  part 
of  the  stream,  subject  to  appropriation.  And,  not  being  intercepted  or  diverted 
by  the  diversion  of  the  surface  flow,  it  is  surplus  water  which  a  subsequent 
appropriator  may  take  out  and  use.  This  is  clear  enough.  But  the  trouble- 
some question  of  fact  is  whether  by  intercepting  the  subterranean  flow  at  a 
given  point  and  removing  it  from  the  bed  of  the  stream,  by  a  tunnel,  for 
example,  he  thereby  diminishes  the  surface  flow  at  the  point  of  diversion 
of  the  prior  appropriator  of  that  flow.  If  he  does,  he  infringes  on  the  rights 
of  the  prior  appropriator,  and  may  be  enjoined  from  making  or  continuing 
such  diversion. 

Subject  to  this  liability,  he  has  the  undoubted  right  to  make  the  appropria- 
tion. 

Vineland  Irr.  Dist.  v.  Azusa  Irr.  Co.,     126  Cal.  486; 
Trustees  of  Delhi  v.  Youmans,  50  Barb.  316. 

But  there  is  a  better  remedy  in  case  of  a  conflict  between  the  rights  of  the 
two  appropriators  under  such  circumstances.  In  such  case  there  is  surplus 
water  flowing  away  under  ground  that  is  wholly  lost  if  the  appropriator  of 
the  surface  flow  is  allowed  to  enjoin  the  appropriator  of  the  subterranean  flow 
from  making  his  diversion.  In  such  case,  a  court  of  equity  has  power  to 
ascertain  the  quantity  of  water  flowing  in  the  stream  and  award  to  the  first 
appropriator  the  amount  of  water  to  which  he  is  entitled  on  account  of  his 
diversion  of  the  surface  flow,  and  the  balance,  which  has  been  added  to  the 
a\ailal)le  supply  by  the  appropriation  of  tlie  subsequent  appropriator,  to  him. 
In  no  case  should  the  party  who  has  appropriated  the  surface  flow,  only,  be 
allowed  to  prevent  the  later  claimant  from  participating  in  the  waters  of  the 
stream  at  all,  by  showing  merely  that  in  taking  out  the  surplus  flow  his  supply 
is  diminished.  The  whole  of  the  waters  diverted  should  be  equitably  divided 
between  them,  in  order  that  none  of  the  water  shall  be  allowed  to  go  to  waste. 

There  is  another  element  of  uncertainty  as  to  the  rights  of  claimants  to 
the  w'aters  of  certain  streams  that  has  come  about  by  the  increase  of  the  flow 
by  the  very  act  of  irrigation.  It  is  noticeable  in  some  localities  that  since 
extensive  irrigation  has  been  practiced  along  some  of  the  water  courses  it  has 
augmented  the  flow  of  the  streams  below.  Not  only  so,  but  in  some  places, 
tracts  of  land  that  formerly  were  "dry,"  have,  by  irrigation  of  lands  above 
them,  become  "water  bearing"  lands,  some  of  them  cienegas  or  swamps.  This 
is  easily  accounted  for.  As  said  above,  the  course  of  the  streams  of  the  state 
is,  in  many  ca.ses,  through  a  succession  of  valleys  that  are  natural  reservoirs. 
Subterranean  water  has  been  brought  to  the  surface  and  applied  to  irrigation, 
A  part  of  this  water  passes  on  to  lower  levels  and  in  places  finds  its  w^ay  into 
the  stream  and  in  other  places  into  lands  below.  When  it  finds  its  way  into 
a  stream  and  becomes  a  ])art  of  the  flow,  it  is  undoubtedly  subject  to  appro- 
priation.    If  it  passes  into  other  lands  below  and  remains  there,  it  is  a  part  of 


History  of  the  Bench  and  Bar  of  California.  117 

the  land  itself,  belongs  to  the  owner  of  the  land,  and  is  not  the  subject  of 
appropriation.  Assuming  that  this  excess  of  water  has  become  a  part  of 
the  stream,  either  below  or  above  ground,  to  whom  does  it  belong?  In  many 
cases,  it  was  not  appropriated  water  in  the  first  instance,  or  the  subject  of  ap- 
priation.  It  has  been  drawn  from  artesian  wells,  or  was  percolating  water 
that  has  been  pumped  from  under  ground  and  applied  to  irrigation.  But,  hav- 
ing been  thus  brought  into  use,  the  very  use  of  it  has  brought  the  underground 
water  to  a  higher  level,  so  much  so  that  some  of  the  water  passes  off  down  to 
and  along  a  near-by  running  stream.  If  the  users  of  water  from  the  stream 
have  appropriated  a  certain  quantity  of  water  from  the  running  stream  and  this 
addition  to  the  flow  has  increased  the  quantity  of  water  to  an  amount  in  excess 
of  such  appropriation,  the  solution  of  this  question  is  easy  enough.  The  added 
water  is  "surplus''  water,  and  may  be  appropriated  by  another.  But  suppose  an 
appropriation  has  been  regularly  made,  so  far  as  the  act  of  giving  notice  and 
performing  work  under  the  code  is  concerned,  but  the  amount  filed  on  is  not 
there,  in  the  beginning,  but  is  made  good  by  the  water  added  as  above  indi- 
cated? What  then?  Is  such  an  appropriator  entitled  to  this  new  supply  of 
water?  It  would  seem  that  under  such  circumstances  the  appropriator  would 
be  entitled  to  the  augmented  quantity  up  to  the  amount  filed  upon  by  him.  or 
so  much  thereof  as  may  be  necessary  for  his  use.  In  other  words,  this  gradual 
accession  to  the  flow  of  "running  water"  which  is  the  subject  of  appropriation 
under  our  laws,  must,  whenever  it  assumes  that  form,  be  controlled  by  such 
laws  the  same  as  other  like  waters.  The  fact  that  it  has  been  added  to  the 
stream  by  artificial  means  not  intended  to  have  that  result  cannot  be  allowed 
to  alter  the  rules  of  law  affecting  the  use  of  such  water.  And  if  it  has  not 
been  so  concentrated  as  to  become  a  water  course,  or  "running  water,"  within 
the  law  of  appropriation  of  itself,  or  mingled  with  and  become  a  part  of  an 
already  existing  water  course,  but  has  percolated  through  and  onto  lower 
lands,  and  there  remains  stationary  or  in  a  state  of  percolation,  it  is  clearly 
not  within  the  law  of  appropriation,  but  is  a  part  of  the  land  in  which  it  is 
found,  and  subject  to  the  use  of  the  owner  of  the  property.  If  the  rights  of 
riparian  owners  are  to  be  upheld,  either  as  they  existed  at  common  law  ov  in 
the  limited,  enlarged,  or  modified  form  resulting  from  the  decided  cases  in 
this  State,  the  rule  must  l)e  the  same,  (le])ending  upon  the  nature  this  addi- 
tional water  supply  has  assumed,  that  is  to  say,  whetlicr  it  has  become  part  (^r 
all  of  a  water  course,  or  is  percolating  water. 

For  What  Purposes  Water  May  Be  Approprialed. 

The  onlv  statutory  limitation  of  the  pnr])oscs  for  wjiicli  water  may  be 
appropriated  is  that  it  "muse  be  for  some  useful  or  beneficial  purpose." 

Civil  Code,  Section   141  i. 
In  the  early  history  of  the  State,  the  most  important  use  made  of  water 
appropriated,  aside  from  domestic  use.  was  for  the  operation  of  mines.     And 
this  use  still  continues  in  some  localities.     iUit  at  the  ])resent  time,  by  far  the 


118  History  of  the  Bench  and  Bar  of  California. 

most  of  the  water  used  is  for  the  irrigation  of  trees  and  growing  crops.  It 
may  be  appropriated,  however,  for  mining,  milHng.  irrigating,  agricultural, 
horticultural,  domestic,  or  any  other  useful  or  beneficial  purpose.  The  ap- 
propriation, to  be  valid,  must  be  made  with  the  intention  of  using  it  for  some 
such  purpose. 

Pomeroy  on  Rip.  Rights,  Sec.  47 ; 

]\IcKinney  v.  Smith,  21  Cal.  374; 
And  there  can  be  no  distinction  as  to  the  rights  of  appropriators  growing 
out  of  the  different  purposes  for  which  the  appropriation  is  made. 

Ortman  v.  Dixon,  13  Cal.  33; 

McDonald  v.  Bear  River  &c.  Water  Co.,  13  Cal.  220. 

Where  Water  May  Be  Appropriated. 

It  is  often  said,  and  said  in  some  of  the  decided  cases,  that  water  can  on]y  5 

be  appropriated  on  government  land.  It  is  a  little  difficult  to  understand  where  | 
this  idea  ever  originated.  There  is  nothing  in  the  code  of  this  State  limiting  ; 
the  place  where  appropriations  of  water  may  be  made.     They  may  be  made  • 

on  the  public  lands,  because  the  Congress  of  the  United  States  has  recognized  j 

the  right.  So  far,  there  can  be  no  question.  But  it  does  not  follow  that  the 
appropriation  cannot  be  made  on  other  lands  if  leave  to  do  so  is  obtained. 
Of  course,  no  filing  can  be  made  on  the  private  lands  of  another,  without  his  } 
consent,  simply  because  it  would  be  a  trespass,  the  same  as  an  entry  upon  land 
for  any  other  unlawful  purpose.  But  the  private  owner  may  grant,  or  consent 
to  such  entry  and  filing  upon  his  lands,  the  same  as  the  national  government 
may  do  the  same  thing.     And  there  is  no  reason  why  the  owner  of  land  ,, 

through  which  a  stream  passes  may  not  appropriate  the  water  flowing  therein         I 
on  his  own  land.     It  is  believed,  however,  that  the  limitation  of  the  place  of         t 
appropriation  to  public  lands  is  entirely  unwarranted,  and  that  a  valid  and 
legal  appropriation  of  water  may  be  made  anywhere  along  the  course  of  a 
running  stream,  the  waters  of  which  are  subject  to  appropriation,  where  the  \« 

appropriator  has  the  right,  by  virtue  of  his  own  ownership  of  the  land  over 
or  through  which  the  stream  flows,  to  enter  upon  such  stream,  or  the  consent 
of  anyone  else  having  such  right,  by  virtue  of  his  ownership  of  land  over  or 
through  which  the  stream  flows.  And  this  is  placed  upon  the  ground  that 
the  law  or  right  of  appropriation  of  this'  State  contains  no  limitation  as  to 
the  place  Avhere  an  appropriation  may  be  made,  and  therefore  the  right  exists 
at  any  point  on  the  stream,  subject  only  to  the  rights  of  others  that  cannot 
be  violated  by  entering  upon  their  lands  for  the  purpose  of  making  the  appro- 
priation. As  we  have  seen  above,  a  riparian  owner  may  convey  away  to 
another  his  right  to  the  waters  of  a  stream.  It  would  be  singular,  therefore, 
if  he  could  not  grant  the  right  to  enter  upon  his  lands  to  make  the  diversion 
by  which  the  appropriation  of  the  water  must  be  effected.  But  if  he  does  not, 
no  entry  can  be  made  on  his  lands  to  make  or  complete  an  appropriation  of 
water. 

Taylor  v.  Abbott,  103  Cal.  421. 


History  of  the  Bench  and  Bar  of  California.  119 

Hoiv  the  JJ'ater  May  Be  Appropriated. 

The  right  of  appropriation  of  water  on  the  pubHc  domain  is  recognized 
and  allowed  by  acts  of  Congress,  and  rights  already  vested  are  preserved. 

U.  S.  Rev.  Stat,  Sees.  2339,  2340; 

19  U.  S.  Stat,  at  Large,  377,  Chap.  107; 

Jacob  V.  Lorenz,  98  Cal.  332 ; 

Broder  v.  Water  Co.,   loi  U.  S.  274; 

Wells  V.  Nantes,  99  Cal.  583 ; 

Jennison  v.  Kirk,  98  U.  S.  453 . 

The  acts  of  Congress  on  the  subject  do  not  create  any  new  right  of  appro- 
priation. They  only  preserve  and  protect  rights  already  accrued  and  vested 
by  the  law  or  customs  of  the  State. 

Jennison  v.  Kirk,  98  U.  S.  453 ; 

Broder  v.  Water  Co.,  loi  U.  S.  274. 

The  manner  of  making  the  appropriation  is  not  provided.  That  is  left 
to  legislation  or  prevailing  custom  in  this  State.  It  is  a  mistake  to  suppose 
that  an  irrigator  obtains  his  rights  from  the  national  government,  further 
than  that  his  right  to  appropriate  water  on  government  lands  is  recognized, 
if  not  granted,  by  act  of  Congress,  or  that  the  manner  of  making  an  appro- 
priation is  governed  or  controlled  by  laws  enacted  by  Congress.  His  rights 
are,  except  as  above  stated,  controlled  entirely  by  state  laws.  The  laws  of 
this  State  provide  specifically  how  appropriation  of  water  may  be  made : 

Sec.  1415.  A  person  desiring  to  appropriate  water  must  post  a  notice,  in 
writing,  in  a  conspicuous  place  at  the  point  of  intended  diversion,  stating 
therein  : 

1.  That  he  claims  the  water  there  flowing  to  the  extent  of  (giving  the 
number)    inches,  measured   under  a   four-inch  pressure; 

2.  The  purposes  for  which  he  claims  it,  and  the  place  of  intended  use ; 

3.  The  means  by  which  he  intends  to  divert  it,  and  the  size  of  the  flume, 
ditch,  pipe,  or  aqueduct  in  which  he  intends  to  divert  it. 

A  copy  of  the  notice  must,  within  ten  days  after  it  is  posted,  be  recorded 
in  the  office  of  the  recorder  of  the  county  in  which  it  is  posted. 

Sec.  1416.  Within  sixty  days  after  the  notice  is  posted,  the  claimant  must 
commence  the  excavation  or  construction  of  the  works  in  which  he  intends 
to  divert  the  water,  and  must  prosecute  the  work  diligently  and  uninterruptedly 
to  completion,  unless  temporarily  interrupted  by  snows  or  rain;  provided,  that 
if  the  erection  of  a  dam  has  been  recommended  by  the  California  debris  com- 
mission at  or  near  the  place  where  it  is  intended  to  divert  the  water,  the  claim- 
ant shall  have  sixty  days  after  the  completion  of  such  dam  in  which  to  com- 
mence the  excavation  or  construction  of  the  works  in  which  he  intends  to 
divert  the   water. 

Sec.  1417.  By  "completion"  is  meant  cimdncting  the  waters  to  the  place 
of  intended  use. 

Civil  Code,  Sees.    141  5- 141  7. 
The  final  and  one  of  tlic  necessary  acts  of  appropriation  in  any  case,  is  the 


120  History  of  the  Bench  and  Bar  of  California.  i\ 

application  of  tlie  water  to  some  beneficial  use,  and  the  proceedings  must  be 
with  that  intention  and  for  that  purpose. 

Civil  Code,  Sees.  141 1,  141 5; 

Pomeroy's  Rip.  Rights,  Sees.  47,  49; 

Tanner's  High  Line  Canal  &c.  Co.  v.  Southworth,  21  Pac.  Rep.  1028; 

Fort  Morgan  L.  &  C.  Co.  v.  South  Platte  Ditch  Co.,  30  Pac.  Rep.  1032; 

Davis  V.  Gale,  32  Cal.  26; 

Maeris  v.  Bicknell,  7  Cal.  261 ; 

Combs  V.  Agricultural  Ditch  Co.,  28  Pac.  Rep.  966;  : 

Weaver  v.  Eureka  Lake  Co.,  15  Cal.,  271. 
And  if  the  claimant  proceeds  under  the  code  provisions  for  the  appropria- 
tion of  water,  he  must,  after  posting  and  recording  the  required  notice,  prose- 
cute the  work  necessary  to  make  the  diversion  with  ordinary  and  reasonable 
despatch.     The  law  does  not  require  unusual  or  extraordinary  effort. 

Ophir  Mining  Co.  v.  Carpenter,  4  Nev.  534. 
These  provisions  regulating  the  manner  in  which  water  may  be  appro- 
priated are  entirely  inadequate.  There  is  no  limitation  upon  the  amount  of 
water  that  may  be  appropriated ;  no  means  by  which  the  quantity  of  water 
flowing  in  the  stream  during  the  irrigating  season  can  be  ascertained ;  no 
means  provided  by  which  the  amount  actually  appropriated  by  the  final  act 
of  supplying  the  water  to  a  useful  purpose,  can  be  ascertained  in  any  satis- 
factorv  way.  The  result  is  that  on  almost  every  stream  in  the  State  filings 
have  been  made  upon  many  times  the  quantity  of  water  flowing  therein,  and 
it  is  impossible,  by  any  record  required  to  be  kept,  to  determine  how  many  of 
the  filings  have  been  made  good  by  doing  the  work  required  by  the  statute  to 
be  done  and  the  application  of  the  water  filed  upon,  or  any  part  of  it,  to  a  bene- 
ficial use.  It  can  be  done  only  by  an  actual  inspection  on  the  ground.  The 
result  is  that  the  rights  of  riparian  owners  and  appropriators  on  the  different 
streams  are  in  a  condition  of  almost  inextricable  confusion  that  can  be  reme- 
died only  by  expensive  litigation,  to  establish,  by  judicial  decree,  the  rights  of 
the  various  claimants.  And  such  a  decree  can  hardly  be  expected  to  result 
in  an  equitable  and  just  division  of  the  water  between  the  contending  parties. 
It  must  be  to  a  great  extent  a  guess  and  an  arbitrary  division  made  by  the 
court.  The  only  thing  that  can  be  claimed  for  such  a  mode  of  fixing  the 
rights  of  the  parties  is  that  the  extent  of  their  claims  is  made  a  matter  of  record 
and  is  binding  on  the  parties  to  the  suit  and  parties  taking  under  them  from 
that  time.  But  it  is  a  nefarious  law  that  permits  such  confusion  of  rights 
and  claims  and  imposes  the  burden  upon  irrigation  of  settling  claims  to  water 
at  such  enormous  expense.  The  utter  insufficiency  of  the  law  of  this  State 
regulating  the  appropriation  of  water  is  well  understood  by  all  who  have 
had  occasion  to  deal  with  it.  But  there  seems  to  be  but  little  disposition  to 
remedy  the  evil  by  just  and  effectual  laws.  Much  money  is  being  expended 
bv  associations,  and  others  interested,  to  induce  the  national  eovernment  to 


History  of  the  Bench  and  Bar  of  California.  121 

appropriate  money  to  provide  works  to  store  and  supply  water  to  arid  lands. 
The  effort  is  commendable.  But  the  enterprising  citizens  who  are  urging  this 
course  might  well  look  closer  at  home  and  provide  by  proper  legislation,  for 
the  care  and  conservation  of  the  water  we  have  and  the  protection  of  bona 
fide  claimants  of  water  who  have  already  expended  their  means  in  diverting 
and  applying  to  beneficial  uses  in  which  the  whole  State  is  interested,  the 
water  already  developed.  In  speaking  of  the  existing  laws  regulating  the 
appropriation  of  water,  Prof.  Ehvood  Mead,  formerly  State  Engineer  of 
Wyoming,  who  has  given  the  subject  much  intelligent  thought,  has  this  to 
say  in  a  paper  entitled  "Water  Rights  on  the  Missouri  River  and  its  Tribu- 
taries :" — 

"On  many  rivers  there  are  now  a  multitude  of  claims  to  the  common 
supply.  These  rights  have  to  be  defined  in  some  way.  If  laws  do  not  define 
them,  a  resort  to  the  courts  is  all  that  intervenes  between  the  just  rights  oi 
water-users  and  anarchy.  In  many  States  the  exigencies  created  by  a  failure 
to  enact  an  administrative  code  have  compelled  the  courts  to  become  practi- 
cally both  the  creators  and  enforcers  of  water  laws.  They  have  to  devise  a 
procedure  for  adjudications,  supplement  the  statute  law  in  deciding  what  rights 
have  been  established,  and  finally  have  to  protect  irrigators'  priorities  by  a 
liberal  exercise  of  government  by  injunction.  The  growing  volume  of  this 
litigation,  together  with  the  uncertain  and  contradictory  character  of  many  of 
the  decisions,  is  making  it  a  heavy  burden  to  irrigators  and  a  serious  menace 
to  progress.  Unless  it  can  in  some  way  be  restricted,  it  threatens  to  impair 
the  value  of  investments  in  ditches  and  the  success  of  this  form  of  agriculture. 
In  ten  years  the  water-right  litigation  of  one  State  is  estimated  to  have  cost 
over  a  million  dollars.  In  many  sections  it  has  exceeded  the  money  expended 
in  constructing  the  ditches  in  which  it  has  its  origin. 

"These  conditions  are  not  met  with  in  every  State.  In  two  States  it  costs 
an  appropriator  less  to  establish  his  right  to  water  than  it  does  to  prove  up 
on  the  land  it  fertilizes,  and  it  is  done  by  the  same  direct  methods.  Litigation 
is  conspicuous  for  its  absence,  either  in  acquiring  water  rights  or  in  preventing 
interference  by  subsequent  appropriators  with  their  enjoyment.  In  these  two 
States  public  control  of  streams  is  as  much  a  part  of  the  state  government  as 
is  the  control   of  public   land   a   part   of   the   national   government. 

"Wherever  rights  to  water  are  restricted  to  its  beneficial  use,  and  where 
such  use  is  followed  promptly  by  the  determination  of  the  extent  of  such  rights, 
controversies  are  as  rare  as  they  are  over  land  filings;  and  where  these  laws 
begin  by  prohibiting  speculative  filings  and  end  with  adequate  protection  for 
just  ones,  there  are  no  more  contests  among  farmers  who  depend  on  rivers  than 
there  arc  between  those  who  depend  on  rain.  Litigation  does  not  arise  because 
irrigators  desire  it.  It  has  its  origin  either  in  ignorance  of  the  law  or  in  its 
imperfections." 

This  is  a  just  criticism  on  existing  laws  in  this  State.  In  some  of  the 
states,  as  said  in  this  extract,  better  and  more  efticient  laws  have  been  enacted. 
For  example,  in  the  State  of  Wyoming  a  system  of  ]iroccdtn"c  has  been  pro- 
vided for  that  goes  far  to  remedy  the  defects  fruni  wliich  we  suffer.  It  is 
worthy  of  notice  in  this  connection.  Briefly  stated,  its  prominent  featiu-es  are 
these : 

-\  state  board  of  control  is  provided  f(^r.  com])osc(l  of  the  state  engineer 
and  four  superintendents,  one  from  each  of  fimr  water  <listricts  into  wIiL-h  the 


122  History  of  the  Bench  and  Bar  of  California. 

state  is  divided,  and  of  which  the  state  engineer  is  president.  The  state 
engineer  has  achiiinistrative  control  of  streams  and  all  appropriations  there 
from  are  subject  to  his  examination  and  approval.  It  is  the  duty  of  this 
board  to  ascertain  and  record  the  amount  of  water  flowing  in  the  streams  in 
the  state.  No  valid  appropriation  of  water  can  be  made  on  any  stream  except 
upon  application  to  the  state  engineer  and  approval  by  him.  and  a  permit 
issued  by  him  is  the  only  accepted  evidence  of  title  to  water.  The  form  of 
application  for  leave  to  appropriate  water  is  provided  for  and  furnished.  Con- 
struction of  ditches  or  other  means  of  diverting  and  using  the  water  must  be 
commenced  within  one  year  and  be  completed  within  the  time  fixed  in  each 
case  by  the  state  engineer.  Holders  of  approved  permits  are  required  to 
report  the  completion  of  the  ditch  or  canal,  and  the  application  of  water  to  a 
beneficial  use.  If  this  is  not  done  on  proper  request,  the  permit  is  cancelled. 
Notices  of  complete  beneficial  use  of  water  under  a  permit  are  filed  with  the 
state  engineer  and  submitted  by  him  t  othe  board  of  control  at  its  next  regular  ! 

meeting.     It  then  becomes  the  duty  of  the  superintendent  of  the  division  where  ,  i 

the  water  is  used  to  ascertain,  by  a  personal  survey,  whether  the  conditions  "| 

of  the  permit  have  been  complied  with,  and  to  take  the  sworn  proof  of  the 
appropriator.  The  report  of  the  examiner,  and  the  proof  of  the  claimant, 
are  submitted  to  the  board  of  control,  at  its  next  regular  meeting,  and  if 
approved,  a  certificate  of  appropriation  is  issued  and  the  title  is  complete.  ^f 

This  summary  is  taken  from  a  fuller  statement  of  the  law  and  its  opera- 
tion and  effect  found  in  the  paper  of  Prof.  Mead  above  referred  to.  Such  a 
law  fairly  and  intelligently  administered  and  enforced  would  be  a  great  im- 
provement of  our  own  crude  and  unsatisfactory  code  provisions.  It  would 
be  necessary,  in  applying  such  a  law  to  our  present  conditions,  however,  to 
provide,  first,  for  ascertaining  and  determining,  in  some  binding  wav.  all 
claims  now  existing  on  the  streams  of  the  state,  either  by  the  board  of  con- 
trol, if  one  should  be  provided,  or  some  other  authorized  body,  of  which  a 
public  record  should  be  made,  and  thereafter  the  claims  of  new  applicants 
for  the  waters  of  such  streams  could  be  controlled  in  some  such  w'ay  as  that 
provided  in  Wyoming.  Other  states  have  similar  provisions,  but  in  most 
of  them  all  questions  of  title  to  water,  or  water  rights,  must  be  settled,  if  at 
all,  by  the  unsatisfactory  and  expensive  process  of  litigation  in  court.  In 
some  of  the  states,  notably  in  Colorado,  special  proceedings  for  the  settle- 
ment of  conflicting  claims  to  water,  and  the  adjudication  thereof,  by  the 
courts,  have  been  provided  for.  But  they  are  cumbersome  and  expensive,  and 
must  be  unsatisfactory. 

But,  unsatisfactory  as  our  laws  for  the  appropriation  of  water  are,  our 
Supreme  Court  has  held  again  and  again  that  an  appropriation  may  be  legally 
made  withfuit  compliance,  or  attempt  to  comiily.  with  the  code.  All  that  is 
necessary  is  an  actual  diversion  from  the  stream  and  the  application  of  the 
water  diverted  to  some  beneficial  use. 


History  of  the  Bench  and  Bar  of  California.  123 

De  Necochea  v.  Curtis,  80  Cal  ,  397; 
Burrows  v.  Burrows,  82  Cal.  565 ; 
Wells  V.  Mantes,  99  Cal.,  583; 
Watterson  v.  Saldumbehere,  loi  Cal.,  107. 
The  only  material  differences  between  an  actual   appropriation  without 
compliance  with  the  code,  and  one  made  by  following  the  code  provisions, 
are  that  the  right  acquired  by  the  former  is  confined  to  the  quantity  of  water 
actually  diverted  and  used,  at  the  time  the  claim  is  asserted ;  while  by  the  giv- 
ing of  the  notice  required  by  the  statute  and  doing  the  necessary  work  to  make 
it  effective,  the  claim  relates  back  to  the  time  when  the  notice  was  given,  and 
covers  the  amount  of  water  that  shall  be  put  in  use  within  a  reasonable  time, 
as  against  subsequent  claimants. 

Wells  V.  Mantes,  99  Cal.,  583 ; 
Pomeroy  Rip.  Rights,  Sec.  54. 
But  it  was  held  in  an  early  case  that  where  work  had  been  diligently 
prosecuted  in  the  construction  of  a  ditch  for  the  diversion  of  water,  the  doc- 
trine of  relation  applied  independently  of  the  statute,  and  the  rights  of  the 
appropriator  related  back  to  the  time  of  commencement  of  work  on  the  ditch. 
Kimball  V.  Gearhart,  12  Cal.,  27. 
But  certainly  this  case  is  in  conflict  with  the  later  decisions  on  the  subject. 
This  preferred  right  is  about  all  the  advantage  to  be  had  by  complying 
with  the  statutory  requirements. 

By  an  actual  appropriation  of  water,  a  claimant  thereto  may  not  only 
establish  his  rights  as  against  subsequent  claimants,  but  by  the  continued 
adverse  use  of  it  he  may  maintain  his  claim  against  riparian  owners  and 
prior  appropriators. 

And  the  manner  of  acquiring  a  water  right  is  not  confined  to  the  appro- 
priation thereof  by  the  claimant.  He  may  also  acquire  it  by  purchase  from 
another. 

Doyle  V.  San  Diego  Land  and  Town  Co.,  46  Fed.  Rep.,  709; 
Kinney  on  Irr.,  Sec.  285  ; 
And,  as  we  shall  see  when  we  come  to  consider  appropriations  for  public 
use,  such  a  right  may  also  be  acquired  by  condemnation. 

Upon  a  review  of  this  branch  of  the  subject  in  hand,  one  cannot  but  feel  the 
need  of  an  intelligent  revision  of  our  entire  system  of  laws  relating  to  the 
appropriation  and  use  of  water.  The  subject  is  one  of  such  vast  importance 
to  the  State  and  the  laws  are  so  imperfect  and  inadequate  that  it  is  amazing 
that  some  improvement  of  the  laws  should  not  have  been  made  long  before 
this. 

Eifcct  of  the  Appropriation. 

The  general  effect  of  the  appropriation  of  water  is  to  give  to  the  ai)pro- 
priator  the  preferred  right  tc  *"he  continued  use  of  the  amount  of  water  appro- 
priated, subject,  of  course,  to  the  rights  of  superior  rijjarian  rights  and  prior 
appropriations. 


124  History  of  the  Bench  and  Bar  of  California. 

Under  our  statute,  and  independent  of  it,  the  rule  "first  in  time,  first  in 
right."  prevails  lietween  appropriators. 

Civil  Code,  Sec.  1414. 
As  hetween  appropriators  and  riparian  owners,  the  rule  is  different.  The 
right  of  the  riparian  owner,  as  we  have  seen,  grows  out  of  his  ownership 
of  land  hordering  on  the  stream.  It  does  not  depend  upon  his  actual  use 
of  the  water  as  in  case  of  an  appropriator.  He  does  not  lose  his  right  by  a 
mere  failure  to  exercise  it  by  a  diversion  or  use  of  the  water.  He  mav  lose 
his  right,  however,  by  suffering  some  one  else  to  use  it  adversely.  The  ques- 
tion of  priority  of  time  as  between  a  riparian  owner  and  an  appropriator 
can  arise  only  in  respect  of  the  time  such  owner  acquired  title  to  his  land,  and 
the  time  of  the  appropriation  by  another,  unless  the  question  of  continued 
adverse  use  arises.  In  this  respect,  the  question  of  time  is  important  because, 
if  the  appropriation  is  made  before  the  riparian  owner  acquires  title  from  the 
government,  the  appropriator  is  first  in  time  and  first  in  right. 

As  to  the  extent  of  an  appropriator's  claim,  in  case  of  an  actual  appro- 
priation without  compliance  with  the  statute,  it  is  confined  to  the  amount  of 
water  actually  diverted  and  used,  while  in  case  of  an  appropriation  by  follow- 
ing the  statutory  provisions,  he  is  entitled  to  an  amount  of  water  reasonably 
necessary  for  the  purpose  for  which  the  appropriation  is  made,  provided  it  is 
applied  to  such  use  within  a  reasonable  time ;  and  in  case  of  such  an  appro- 
priation, the  question  of  time  relates  to  the  date  of  giving  the  notice,  and  not 
to  the  date  of  the  actual  diversion  and  use  of  the  water.  But  in  all  cases,  no 
matter  how  the  appropriation  is  effected,  the  amount  of  water  the  appropriator 
is  entitled  to  take  from  the  stream  is  confined  to  the  quantity  reasonably  neces- 
sary for  his  use. 

Atchison  v.  Peterson,  20  Wall.,  507,  514; 

Barnes  v.  Sabron,  10  Nev.,  217,  243. 
But  he  may  ajiply  the  water  he  has  ap])ropriated  to  a  different  use,  pro- 
videfl  the  change  does  not  injuriously  aft'ect  other  vested  rights. 

Ramelli  v.  Irish,  96  Cal.,  214; 

Gallaher  v.  Montecito  W.  Co.,  loi  Cal.,  242; 

Davis  V.  Gale,  32  Cal.,  26. 

And,  subject  to  the  same  limitations,  he  may  change  his  ])]ace  o{  diversion 
on  the  stream. 

Civil  Code,  Sec.   1412; 

Jacob  V.  Lorenz,  98  Cal.,  332; 

Junkans  v.   Bergin,  67  Cal.,   267: 

Gallaher  v.  Montecito  W.  Co.,  loi  Cal.,  242: 

Davis  V.  Gale,  32  Cal.,  26. 
The  purpose  of  the  law,  and  the  decided  cases,  is  to  perfect  and  ]irotect 
the  rights  of  appropriators  of  water  from  the  streams  of  the  v'>tate.  according  to 
their  priorities,  but.  at  the  same  time,  to  confine  their  claims  and  their  use  of 


History  of  the  Bench  and  Bar  of  California.  125 

water  to  the  amount  reasonably  necessary  for  their  purposes,  thus  conserving 
the  water  and  extending  its  benefits  as  far  as  is  consistent  with  the  necessities  of 
those  who  desire  to  share  in  such  lienefits.  Tliis  being  so,  the  common  cus- 
tom of  fiHng  on  a  stream  for  a  large  amount  of  water  when  only  a  small 
amount  is  needed,  only  tends  to  complicate  the  conditions  and  can  result 
in  no  benefit  to  the  appropriator,  as  the  amount  he  attempts  to  appropriate 
by  his  notice  is  not  the  measure  of  his  rights  in  the  water  of  the  stream,  but 
the  amount  he  uses  or  needs  and  may  put  to  a  beneficial  use  within  a  reason- 
able time;  and  surplus  water  is  always  open  to  appropriation. 
Natoma  ^^^  &  M.  Co.  v.  Hancock.  loi  Cal.,  42. 
But  the  courts  have  shown  a  disposition  to  construe  the  statute  liberally 
in  favor  of  the  appropriator  of  water  under  it  in  respect  of  the  attempt  to 
comply  with  its  terms  in  making  the  appropriation. 

Osgood  V.  El  Dorado  Water  &c.  Co.,  56  Cal.,  571. 
So  if  the  appropriator  has  filed  and  recorded  a  notice  substantially  in  con- 
formity to  the  statute  and  prosecuted  the  work  of  diversion  with  reasonable 
diligence  to  completion,  his  appropriation  is  complete. 
Civil  Code,  Sec.   1416; 

Osgood  V.  El  Dorado  Water  &c.  Co.,  56  Cal.,  571 ; 
Under  our  code,  the  work  necessary  for  the  diversion  includes  the  con- 
ducting of  the  water  to  the  place  of  intended  use. 
Civil   Code,   Sec.    141 7. 
But  where  the  diversion  is  for  the  irrigation  of  land,  it  is  believed  that  a 
reasonable  time  should  be  allowed   for  getting  the  land   in  cultivation  and 
making  the  application  of  it. 

Conant  v.  Jones,  32  Pac.  Rep.   (Ida.).  250. 
How  Right  Acquired  by  Appropriation  May  Be  Lost. 
In  this  respect,  the  right  of  an  appropriator  differs  from  that  of  a  riparian 
owner,  in  that  while  the  latter  cannot  lose  his  right  by  mere  failure  to  use 
the  water  to  which  he  is  entitled,  such  non-user  on  the  part  of  an  appropriator 
may  amount  to  an  abandonment  of  and  loss  of  his  rights. 
Kirman  v.  Hunnewell,  93  Cal.,  519. 
So  he  may  lose  his  rights  by  adverse  use  of  the  water  by  another. 
Faulkner  v.  Rondoni,  104  Cal.,  140; 
Gallaher  v.  Montecito  &c.  W.  Co.,  loi  Cal.,  243: 
American  Co.  v.  Bradford,  27  Cal.,  360: 
Union  Water  Co.  v.  Crary,  25  Cal.,  504: 
Cox  V.  Clough.  70  Cal..  345. 
.\n(l  l)y  grant,  as  an  appurtenant  to  the  land  irrigated. 

Crooker  v.  Benton,  93  Cal.,  365. 
Or  even  without  conveyance  of  the  land. 

McDonald  v.  Bear  River  &c.  ^^^atcr  Co..  13  Cal.,  220.  232; 

Pomeroy's  Rip.  Rights,  Sec.  5!^ : 

Fort  Morgan  L.  &c.  Co.  v.  South  Platte  Ditch  Co.,  30  Pac.  Rep.,  1032: 


126  History  of  the  Bench  and  Bar  of  California. 

Thomas  v.  Guiraud,  6  Col.,  530; 
Kelly  V.  Natoma  Water  Co.,  6  Cal.,  105; 
Strickler  v.  Colorado  Springs,  26  Pac  Rep.,  313. 
And  by  condemnation. 

San  Francisco  and  Alameda  Water  Co.  v.  Alameda  Water  Co..  36  Cal., 

639; 

Spring  Valley  W^ater  Works  v.  San  Mateo  Water  Works,  64  Cal.,  123. 

OF    APPROPRIATION    OF    W'ATER    FOR    SALE,    RENTAL    OR 

DISTRIBUTION.  I 

So  far  as  the  mode  or  manner  of  appropriating  or  otherwise  acquiring  the 
right  to  di\ert  and  use  water  is  concerned,  there  is  no  material  difference 
between  an  ap])ropriation  for  pri\'ate  use  and  one  for  sale,  rental  or  distribu- 
tion to  the  public,  except  that  as  a  corporation  is  acting  for  the  public,  it  may 
condemn  the  right  to  divert  water  for  such  purpose. 

There  are  two  most  important  questions  growing  out  of  the  appropria- 
tion of  water  for  public  use,  viz.,  what  interest  or  ownership  has  the  corpora- 
tion in  the  water  appropriated  for  sale,  rental  or  distribution  to  others,  before 
and  after  it  has  supplied  the  water  appropriated  to  its  consumers,  and  what 
compensation  is  it  entitled  to 'receive  for  the  right  to  the  preferred  use  of 
the  water  and  for  the  water  supplied.  The  State  has,  by  its  constitution  and 
statutes,  imposed  certain  limitations  and  restrictions  upon  corporations  appro- 
priating water  for  the  pul)lic  use  both  as  to  the  character  and  extent  of  its 
ownership  in  and  right  to  deal  with  the  water  and  the  compensation  it  shall 
receive  for  the  water  it  supplies  to  others. 

Various  statutes  have  been  enacted  with  a  view  of  authorizing  corpora- 
tions to  appropriate  water  for  distribution  to  the  public  and  at  the  same  time 
preserve  in  the  State  the  right  and  power  to  regulate  and  control  the  exercise 
of  such  right. 

Stat.  1852,  p.  17T  ; 
Stat.  1858,  p.  218; 
Stat.  1862,  p.  540; 
Stat.  1880,  p.  59. 
Stat.  T885,  p.  95. 
Some  of  these  statutes  do  not  call  for  any  extended  notice,  as  they  have 
been  superseded  by  later  ones. 

But  the  statute  of  1858  provided  for  the  fixing  of  rates  to  be  charged  by 
water  companies  by  commissioners.  The  provisions  of  this  act  related  to 
water  sup|)]ie(l  to  any  city  (/;/(/  county  or  city  or  town,  and  not  to  counties. 
Section  4  is  as  follows : — 

"All  corporations  formed  under  the  provisions  of  this  act.  or  claiming  anj' 
of  the  privileges  of  the  same,  shall  furnish  pure  fresh  water  to  the  inhabitants 
of  such  city  and  county,  or  city  nr  town,  for  family  uses,  so  long  as  the  supply 


History  of  the  Bench  and  Bar  of  California.  127 

permits,  at  reasona1)le  rates  and  without  distinction  of  persons,  upon  proper 
demand  therefor,  and  shall  furnish  water,  to  the  extent  of  their  means,  to  such 
city  and  county,  or  city,  or  town,  in  case  of  fire  or  other  great  necessity,  free 
of  charge.  And  the  rates  to  be  charged  for  water  shall  be  determined  by  a 
board  of  commissioners,  to  be  selected  as  follows:  Two  by  such  city  and 
county,  or  city  or  town  authorities,  and  two  by  the  water  company ;  and  in 
case  that  four  cannot  agree  to  the  valuation,  then,  in  that  case,  the  four  shall 
choose  a  fifth  person,  and  he  shall  become  a  member  of  said  board :  if  the 
four  commissioners  cannot  agree  upon  a  fifth,  then  the  sheriflf  of  the  county 
shall  appoint  such  fifth  person,  the  decision  of  a  majority  of  said  board 
shall  determine  the  rates  to  be  charged  for  water  for  one  year,  and  until  new- 
rates  shall  be  established.  The  board  of  supervisors,  or  the  proper  city  or 
town  authorities,  may  prescribe  such  other  proper  rules  relating  to  the  delivery 
of  water,  not  inconsistent  with  this  act,  and  the  laws  and  constitution  of  this 
State." 

Stat.  1858,  p.  219,  Sec.  4. 

The  statute  of  1862  related  to  water  furnished  in  counties  outside  of  cities 
and  towns  and  provided  : 

"Every  company  organized  as  aforesaid  shall  have  power,  and  the  same  is 
hereby  granted,  to  make  rules  and  regulations  for  the  management  and  preser- 
vation of  their  works,  not  inconsistent  with  the  laws  of  this  State,  and  for 
the  use  and  distribution  of  the  waters  and  the  navigation  of  the  canals,  and  to 
establish,  collect,  and  receive  rates,  water  rents,  or  tolls,  which  shall  be  subject 
to  regulation  by  the  board  of  supervisors  of  the  county  or  counties  in  which 
the  work  is  situated,  but  which  shall  not  be  reduced  by  the  supervisors  so  low 
as  to  yield  to  the  stockholders  less  than  one  and  one-half  per  cent,  per  month 
upon  the  capital   actually  invested." 

Stat.  1862,  pp.  540,  541,  Sec.  3. 
In  1879,  our  present  constitution  was  adopted,  and  went  into  effect  January 
I,  1880.     Article  XIV  of  the  constitution  is  as  follows: — 

"USE  AND  RATES. 

"Section  I.  The  use  of  all  water  now  appropriated,  or  that  may  hereafter 
be  appropriated,  for  sale,  rental,  or  distribution,  is  hereby  declared  to  be  a 
public  use.  and  subject  to  the  regulation  and  control  of  the  State,  in  the  manner 
to  be  prescribed  by  law ;  provided,  that  the  rates  or  compensation  to  be  collected 
by  any  person,  company,  or  corporation  in  this  State  for  the  use  of  water 
supplied  to  any  city  and  county,  or  city  or  town,  or  the  inhabitants  thereof, 
shall  be  fixed,  annually,  by  the  board  of  supervisors,  or  city  and  county,  or 
city  or  town  council,  or  other  governing  body  of  such  city  and  county,  or  city 
or  town,  by  ordinance  or  otherwise,  in  the  manner  that  other  ordinances  or 
legislative  acts  or  resolutions  are  passed  by  such  body,  and  shall  continue  in 
force  for  one  year,  and  no  longer.  Such  ordinances  or  resolutions  shall  be 
passed  in  the  month  of  February  of  each  year,  and  take  effect  on  the  first  day 
of  July  thereafter.  Any  board  or  body  failing  to  pass  the  necessary  ordinances 
or  resolutions  fixing  water-rates,  where  necessary,  within  such  time,  shall  be  . 
subject  to  peremptory  process  to  compel  action  at  the  suit  of  any  party  inter- 
ested, and  shall  be  liable  to  such  further  processes  and  penalties  as  the  legis- 
lature may  prescribe.  Any  person,  company,  or  corporation  collecting  water- 
rates  in  any  city  and  county,  or  city  or  town  in  this  State,  otherwise  than  as 
so  established,  shall  forfeit  the  franchises  and  water-works  of  such  person, 
company,  or  corporation  to  the  city  and  county,  or  city  or  town  where  the 
same   are   collected,    for    the    public    use. 


128  History  of  the  Bench  and  Bar  of  California. 

"RIGHT  TO  COLLECT  WATER  RATES  A  FRANCHISE. 

"Sec.  2.  The  right  to  collect  rates  or  compensation  for  the  use  of  water 
supplied  to  any  county,  city  and  county,  or  town,  or  the  inhabitants  thereof,  is 
a  franchise,  and  cannot  be  exercised  except  by  authority  of  and  in  the  manner 
prescribed  by  law." 

Const.  Cal.,  Art.  XIV,  Sees,  i  and  2. 
The  Spring-  \' alley  Water  Works  was  organized  to  supply  water  to  the 
city  and  county  of  San  Francisco,  under  the  act  of  1858.  When  the  new 
constitution  took  effect,  the  supervisors  of  San  Francisco  asserted  the  right 
to  fix  rates  for  that  company  as  provided  in  the  constitution.  The  Com- 
pany, on  the  other  hand,  maintained  that  ha\ing  been  organized  under 
this  act  providing  for  the  fixing  of  rates  as  therein  specified,  giving  the 
company  the  right  to  select  two  of  the  commissioners,  it  became  vested  with 
the  right  to  have  the  rates  so  fixed,  and  the  constitution  of  this  State  pro- 
viding for  the  establishment  of  rates  in  a  different  way  and  by  a  different 
body,  was  in  violation  of  the  Constitution  of  the  United  States.  But  in  the 
case  of  the  Spring  Valley  Water  Works  v.  Schottler,  no  U.  S.,  47,  the 
Supreme  Court  of  the  United  States  held  that  the  change  in  the  mode  of  fixing 
the  rates  was  within  the  power  of  the  State,  as  against  a  corporation  organized 
under  the  act  of  1858,  and  that  it  violated  no  provision  of  the  Constitution  of 
the  United  States. 

Spring  Valley  Water  U'orks  v.  Board  of  Supervisors,  61  Cal.,  3,  is 
to  the  same  effect. 
And  it  has  been  held,  uniformly,  by  the  Federal  and  State  courts,  that  this 
power  of  regulation  of  rates  and  compensation  exists  in  the  State,  and  that 
the  only  power  of  the  courts,  in  dealing  with  the  action  of  a  legislative  or 
other  body,  establishing  rates  to  be  charged,  is  to  inquire  whether  the  rates 
are  fairly  fixed  upon  proper  investigation,  and  to  set  them  aside  if  it  shall 
appear  that  they  are  so  unreasonable  as  to  make  their  enforcement  equiva- 
lent to  the  taking  of  ])r()])erty  for  public  use  without  just  compensation. 

Munn  v.  Illinois,  94  U.  S.,  113; 

Spring  Valley  Water  W^orks  v.  Schottler,  no  U.  S.,  347; 

Spring  Valley  Water  Works  v.  San  Francisco,  82  Cal.,  286; 

Stone  v.  Farmers'  Loan  and  Trust  Co.,  116  U.  S.,  307; 

Dow  v.  Beidelman,  125  U.  S.,  680; 

Georgia  Banking  Co.  v.  Smith,  128  U.  S.,  174; 

Chicago  &  N.  W^  Ry.  Co.  v.  Dey,  35  Fed.  Rep.,  866; 

San  Diego  Land  and  Town  Co.  v.  National  City,  74  Fed.  Rep.,  79; 

San  Diego  Land  and  Town  Co.  v.  X'ational  City,  174  Y.  S.,  739^ 

Smyth  V.  Ames,  169  U.  S.,  466; 

San  Diego  Water  Co.  v.  City  of  San  Diego,  118  Cal,  556. 
As  it  is  firmly  established  that  the  State  possesses  the  power  of  regula- 
tion and  that  the  courts  can  only  interfere  to  prevent  the  enforcement  of 
unreasonable    rates,   it  is  necessary  to   inquire    what    will    be   regarded   as 


History  of  the  Bench  and  Bar  of  California.  129 

reasonable  rates,  and  what  shall  be  taken  into  account  in  an  effort  to  deter- 
mine what  is  just  compensation.  In  considering  this  question,  the  fixing  of 
rates  by  city  and  town  authorities  must  be  distinguished  from  the  fixing  of 
rates  outside  of  cities  and  towns  by  boards  of  supervisors.  In  the  latter  case, 
the  question  of  water  rights  and  the  effect  of  the  acquisition  thereof  by  a  prop- 
erty-owner from  the  company  is  involved,  and  will  be  considered. 

I.     Fixing  of  Rates  in  Cities  and  Tozuns. 

It  will  be  noticed  from  the  provisions  above  quoted  that  the  use  of  all 
water  appropriated  or  to  be  appropriated  for  sale,  rental  and  distribution  is 
declared  to  be  a  public  use,  and  the  rates  are  required  to  be  fixed,  annually, 
by  the  city  or  town  authorities,  and  that  any  company  collecting  water  rates 
otherwise  than  as  so  established  shall  forfeit  its  franchises  and  water  works 
to  the  city  and  county  or  city  or  town  for  the  public  use. 
Const.  California,  Art.  XIV. 

The  constitution  contains  no  limitation  of  the  power  of  the  city  or  town 
authorities;  no  provision  as  to  what  shall  constitute  reasonable  rates  or  basis 
upon  which  rates  shall  be  established.  No  appeal  is  given  to  any  other  court 
or  body.  So  far  as  its  own  provisions  are  concerned,  the  power  of  the  bodies 
to  whom  this  important  jurisdiction  over  the  property  of  water  companies  is 
given  is  wholly  arbitrary  and  unlimited,  and  the  company  is  bound  by  any 
rates  such  bodies  may  establish,  under  penalty  of  the  forfeiture  of  all  of  its 
property,  if  it  shall  charge  a  higher  rate  than  the  one  so  established.  The 
constitution  is  an  unreasonable  and  vicious  one  in  that  it  vests  in  the  pur- 
chaser of  the  water  from  the  company  the  power  to  fix  his  own  price  upon 
it  and  compels  the  company  to  furnish  the  water  at  the  price  thus  fixed  on 
penalty  of  forfeiture  of  its  plant.  The  constitution  has  thus  been  made  the 
means  of  great  wrong  and  injustice  without  the  possibility  of  relief  by  fair 
and  legitimate  means,  capital  invested  in  the  development  of  water  for  public 
use  has  been  sacrificed,  and  the  further  investment  of  capital  for  this  purpose 
has  been  effectually  and  forever  suppressed  so  long  as  the  laws  now  in  force, 
construed  as  they  are  by  the  courts,  are  allowed  to  exist.  And  they  are  not 
likely  to  be  materially  changed  in  the  near  future. 

As  against  the  natural,  the  inevitable  tendency  of  the  bodies  authorized 
to  fix  rates  to  act  in  the  interest  of  themselves  and  other  consumers,  the  courts 
have  asserted  jurisdiction  only  to  the  extent  of  inquiring  whether  rates  estab- 
lished are  so  unreasonable  as  to  amount  to  the  taking  of  property  without 
just  compensation,  in  violation  of  the  Constitution  of  the  United  vStates.  And 
even  this  power  in  the  courts  was  practically  denied  by  the  v^uprcmc  Court 
of  the  United  States  in  the  beginning  of  judicial  controversy  on  the  subject. 

In  Munn  v.  Illinois,  94  U.  S.  113,  it  is  said  : 

"It  is  insisted,  however,  that  the  owner  of  property  is  entitled  to  a  reason- 
able compensation  for  its  use,  even  though  it  be  clothed  with  a  public  interest. 
and  that  what  is  reasonable  is  a  judicial  and  not  a  legislative  question. 

"As  has  already  been  shown,  the  practice  has  been  otherwise.     In  countries 


130  History  of  the  Bench  and  Bar  of  California.     . 

where  the  common  law  prevails,  it  has  been  customary  from  time  immemoriai 
for  the  legislature  to  declare  what  shall  be  a  reasonable  compensation  under 
such  circumstances,  or,  perhaps  more  properly  speaking,  to  fix  a  maximum 
beyond  which  any  charge  made  would  be  unreasonable.  Undoubtedly,  in  mere 
private  contracts,  relating  to  matters  in  which  the  public  has  no  interest,  what 
is  reasonable  must  be  ascertained  judicially.  But  this  is  because  the  legisla- 
ture has  no  control  over  such  a  contract.  So,  too,  in  matters  which  do  affect 
the  public  interest,  and  as  to  which  legislative  control  may  be  exercised,  if 
there  are  no  statutory  regulations  upon  the  subject,  the  courts  must  determine 
what  is  reasonable.  The  controlling  fact  is  the  power  to  regulate  at  all.  If 
that  exists,  the  right  to  establish  the  maximum  of  charge,  as  one  of  the  means 
of  regulation,  is  implied.  In  fact,  the  common-law  rule,  which  requires  the 
charge  to  be  reasonable,  is  itself  a  regulation  as  to  price.  Without  it  the 
owner  could  make  his  rates  at  will,  and  compel  the  public  to  yield  to  his  terms, 
or  forego  the  use.     .     .     . 

"We  know  that  this  is  a  power  which  may  be  abused ;  but  that  is  no 
argument  against  its  existence.  For  protection  against  abuses  by  legislatures 
the  people  must  resort  to  the  polls,  not  to  the  courts." 

Munn  V.  Illinois,  94  U.  S.,  113,  133. 

See  also  Peik  v.  Chicago  &c.  Railway  Co.,  94  U.  S.,  164,  178. 

This  was  equivalent  to  saying  that  the  power  to  say  what  were  reasonable 
rates  rested  exclusively  with  the  legislature,  and  that  the  courts  had  no  power 
to  interfere.  But  the  court  rendering  this  decision,  and  others  rendered  about 
the  same  time,  and  known  as  the  Granger  cases,  has  not  adhered  to  it,  but  has, 
without  overruling  it  in  terms,  so  changed  and  modified  the  rule  laid  down  as 
to  amount  to  the  same  thing.  One  step  in  that  direction  was  to  hold  that  if 
rates  were  made  so  low  as  not  to  return  some  compensation  over  and  above 
interest  on  bonds  and  operating  expenses,  they  were  void  as  amounting  to  the 
taking  of  property  without  just  compensation. 

So  it  was  said  in  Spring  Valley  Water  Works  v.  Schottler,  no  U.  S.,  354: 

"Like  every  other  tribunal  established  by  the  legislature  for  such  a  pur- 
pose, their  duties  are  judicial  in  their  nature,  and  they  are  bound  in  morals 
and  in  law  to  exercise  an  honest  judgment  as  to  all  matters  submitted  for  their 
ofificiil  determination." 

Again,  in  Railway  Co.  v.  Minnesota,  134  U.  S.,  118,  the  court  held  a 
statute  of  Minnesota  void  because,  as  construed  by  the  highest  court  of  that 
state,  it  made  the  action  of  a  commission  fixing  rates  conclusive  and  not  open 
to  judicial  inquiry  as  to  the  reasonableness  of  such  rates.  The  court  said  (P. 
466)  :- 

"This  being  the  construction  of  the  statute  by  wnich  we  are  bound  in  con- 
sidering the  present  case,  we  are  of  opinion  that,  so  construed,  it  conflicts  with 
the  Constitution  of  the  United  States  in  the  particulars  complained  of  by  the 
railroad  company.  It  deprives  the  company  of  its  right  to  a  judicial  investiga- 
tion, by  due  process  of  law,  under  the  forms  and  with  the  machinery  provided 
by  the  wisdom  of  successive  ages  for  the  investigation,  judicially,  of  the  truth 
of  a  matter  in  controversy,  and  substitutes  therefor,  as  an  absolute  finality,  the 
action  of  a  railroad  commission,  which,  in  view  of  the  powers  conceded  to  it  by 
the  State  court,  cannot  be  regarded  as  clothed  with  judicial  functions,  or 
possessing  the  machinery  of  a  court  of  justice." 


* 

I 


History  of  the  Bench  and  Bar  of  California.  131 

And  in  later  cases  the  court  has  entirely  abandoned  the  rigid  rule  first 
declared  that  the  action  of  the  legislature  was  conclusive,  and  firmly  estab- 
lished the  better  and  more  reasonable  doctrine  that  the  courts  may  inquire  into 
the  reasonableness  of  the  rates  by  whomsoever  they  may  be  established,  and 
if  found  to  be  unreasonable,  prevent  their  enforcement. 

Spring  Valley  Water  Works  v.  Schottler,  no  U.  S.,  347; 

Stone  V.  Farmers'  Loan  and  Trust  Co.,  116  U.  S.,  307; 

Georgia  Banking  Co.  v.  Smith,  128  U.  S.,  174; 

Budd  V.  People,  143  U.  S.,  517; 

Reagan  v.  Farmers'  Loan  and  Trust  Co.,  154  U.  S..  399; 

Smyth  V.  Ames,   169  U.  S.,  544; 

San  Diego  Land  and  Town  Co.  v.  National  City,  174  U.  S.,  739. 
The  latest  declaration  of  the  Supreme  Court  of  the  United  States  as  to 
the  respective  powers  of  the  legislative  and  judicial  departments  of  govern- 
ment, in  the  establishment,  determination  and  enforcement  of  rates,  is  found 
in  San  Diego  Land  and  Town  Co.  v.  National  City.  174  U.  S.,  739,  753.  The 
court  says  in  that  case : 

"That  it  was  competent  for  the  State  of  California  to  declare  that  the  use 
of  all  water  appropriated  for  sale,  rental,  or  distribution  should  be  a  public  use 
and  subject  to  public  regulation  and  control,  and  that  it  could  confer  upon  the 
proper  municipal  corporation  power  to  fix  the  rates  or  compensation  to  be  col- 
lected for  the  use  of  water  supplied  to  any  city,  county,  or  town  or  to  the  inhab- 
itants thereof,  is  not  disputed,  and  is  not,  as  we  think,  to  be  doubted.    It  is  equally 
clear  that  this  power  could  not  be  exercised  arbitrarily  and  without  reference  to 
what  was  just  and  reasonable  as  between  the  public  and  those  who  appropriated 
water  and  supplied  it  for  general  use ;  for  the  State  cannot  by  any  of  its  agencies, 
legislative,  executive,  or  judicial,  withhold  from  the  owners  of  private  property 
just  compensation  for  its  use.     That  would  be  a  deprivaton  of  property  without 
due  process  of  law.     Chicago,  Burlington  &  Q.  Railroad  Co.  v.  Chicago,  166  U. 
S.,  226;  Smyth  v.  Ames,  169  U.  S.,  466,  524.     But  it  should  also  be  remembered 
that  the  judiciary  ought  not  to  interfere  with  the  collection  of  rates  established 
under  legislative  sanction  unless  they  are  so  plainly  and  palpably  unreasonable 
as  to  make  their  enforcement  equivalent  to  the  taking  of  property  for  public  use 
without  such  compensation  as  under  all  the  circumstances  is  just  both  to  the 
owner  and  to  the  public;  that  is,  judicial  interference  should  never  occur  unless 
the  case  presents,  clearly  and  beyond  all  doubt,  such  a  flagrant  attack  upon  the 
rights  of  property  under  the  guise  of  regulations  as  to  compel  the  court  to  say 
that  the  rates  prescribed  will  necessarily  have  the  effect  to  deny  just  compensa- 
tion for  private  property  taken  for  public  use.     Chicago  &  Grand  Trunk  Railway 
Co.  V.  Wellman,  143  U.  S.  339,  344;  Reagan  v.  Farmers'  Loan  &  Trust  Co.,  154 
U.  S.,  362,  399:  Smyth  V.  Ames,  above  cited.     See  also  Henderson  Bridge  Co. 
V.  Henderson  City,  173  U.  S.  592,  614,  615  {ante,  823,  831)." 
If  we  turn  to  the  decided  cases  in  our  own  State,  we  find  that  from  the 
beginning,  the  Supreme  Court  of  this  State  has  upheld  the  right  and  power 
of  the  legislature,  or  other  official  bodies  vested  by  it,  or  authorized  to  act. 
to  establish  and  enforce  rates  to  be  charged  for  water  supplied,  but  that  the 
court  has.  at  the  same  time,  declared  and  upheld  the  jurisdiction  of  the  courts 
of  the  State  to  inquire  into  the  reasonableness  of  such  rates  and  to  declare 
them  void  and  prevent  their  enforcement  if  found  to  be  unreasonable. 


132  History  of  the  Bench  and  Bar  of  California. 

Spring  Valley  Water  Works  v.  San  Francisco,  82  Cal.,  286; 

Jacobs  V.  Board  of  Supervisors,  100  Cal.,  121 ; 

San  Diego  Water  Co.  v.  City  of  San  Diego,  118  Cal.,  556; 

Recllands,  Lugonia  &c.  Water  Co.  v.  City  of  Redlands,  121  Cal.,  365; 

Redlands,  Lugonia  &c.  W^ater  Co.  v.  City  of  Redlands,  121  Cal.,  312. 
The  doctrine  that  the  legislative  power  to  fix  rates  was  beyond  judicial 
inquiry,  at  first  declared  by  the  Supreme  Court  of  the  United  States,  and 
afterwards  abandoned,  was  never  recognized  by  the  Supreme  Court  of  Cali- 
fornia.    It  was  declared  in  the  case  first  above  cited,  that : — 

"When  the  constitution  provides  for  the  fixing  of  rates  or  compensation,  it 
means  reasonable  rates  and  just  compensation.  To  fix  such  rates  and  compensa- 
tion is  the  duty  and  within  the  jurisdiction  of  the  board.  To  fix  rates  not  rea- 
sonable or  compensation  not  just  is  a  plain  violation  of  its  duty." 

So  we  may  regard  it  as  firmly  and  finally  settled,  in  this  State,  that  when 
the  common  council  or  other  governing  body  of  a  city  or  town,  or  the  board 
of  supervisors  of  a  city  have  established  rates,  the  courts  may  inquire  wdiether 
such  rates  are  reasonable  or  not,  and  if  found  to  be  unreasonable,  declare  them 
void  and  enjoin  their  enforcement. 

But  this  has  only  brought  us  to  the  more  difficult  question :  what  are  such 
unreasonable  rates  as  will  authorize  the  interference  of  the  courts,  and  what 
shall  be  taken  into  account  in  attempting  to  determine  whether  rates  estab- 
lished in  a  given  case  are  reasonable  or  unreasonable.  This  would  seem  to 
be  an  easy  enough  question.  But  the  courts  have  made  it  anything  but  easy 
by  their  many  conflicting  decisions.  It  is  easy  enough  to  ascertain  what 
amount  a  company  has  expended  for  the  public  use  and  benefit  in  the  con- 
struction of  its  plant.  It  ought  not  to  be  difficult  to  ascertain  what  its  oper- 
ating expenses  are,  with  reasonable  certainty.  The  extent  of  its  loss  by  wear 
and  tear  of  its  plant  ought  to  be  arrived  at  closely  enough  to  avoid  any  great 
injustice  to  the  company  or  its  consumers.  It  ought  not  to  be  difficult  to 
arrive  at  the  revenues  derived  from  rates  established  and  collected  for  previous 
years  as  a  guide  in  fixing  present  rates.  In  order  that  the  proper  basis  should 
be  had  and  information  supplied  for  use  in  fixing  rates,  an  act  was  passed  by 
the  legislature  authorizing  and  requiring  the  board  of  supervisors  of  any  city 
and  county  or  other  governing  body,  to  require  by  ordinance  or  otherwise, 
any  corporation,  company  or  person  supplying  water,  to  furnish,  in  the  month 
of  January  in  each  year,  a  detailed  statement,  verified  by  the  oath  of  the 
president  and  secretary  of  the  corporation  or  company,  or  of  such  person, 
''showing  the  name  of  each  water-rate  payer,  his  or  her  place  of  residence, 
and  the  amount  paid  for  water  by  each  of  such  water-rate  payers  during  the 
year  preceding  the  date  of  such  statement,  and  also  showing  all  revenues 
derived  from  all  sources,  and  an  itemized  statement  of  expenditures  made  for 
supplying  water  during  said  time,"  also  a  sworn  "detailed  statement  showing 
the  amount  of  money  actually  expended  annually,  since  commencing  business, 
in  the  purchase,  construction  and  maintenance,  respectively,  of  the  property 


History  of  the  Bench  and  Bar  of  California.  133 

necessary  to  the  carrying  on  of  its  business,  and  also  the  gross  cash  receipts 
annually  for  the  same  period  from  all  sources." 
Stat.  1881,  p.  54. 
This  statute  was  evidently  intended  to  call  for  the  information  necessary 
to  form  a  proper  basis  for  fixing  the  rates.  It  is  perfectly  apparent  that  it 
was  intended  that  the  cost  of  the  plant,  or  the  money  expended  in  its  con- 
struction, and  the  operating  expenses,  should  form  the  basis  of  any  rates  to 
be  established.  But  it  is  believed  that  in  the  decided  cases  in  this  State  this 
evident  intention  of  the  legislature  as  indicated  by  the  statute  quoted  from 
has  been  overlooked  or  disregarded.  In  the  early  case  of  Spring  Valley  Water 
Works  v.  San  Francisco,  82  Cal.,  286,  the  question  as  to  what  should  be 
considered  in  an  effort  to  ascertain  what  are  reasonable  rates  was  not  decided. 
It  was  held  generally,  however,  that : 

"The  courts  cannot,  after  the  board  has  fully  and  fairly  investigated  and 
acted,  by  fixing  what  it  believes  to  be  reasonable  rates,  step  in  and  say  its  action 
shall  be  set  aside  and  nullified,  because  the  courts,  upon  a  similar  investigation, 
have  come  to  a  different  conclusion  as  to  the  reasonableness  of  the  rates  fixed. 
There  must  be  actual  fraud  in  fixing  the  rates,  or  they  must  be  so  palpably  and 
grossly  unreasonable  and  unjust  as  to  amount  to  the  same  thing."     (P.  306.) 

The  cjuestion  came  before  the  court  again  in  San  Diego  Water  Co.  v.  City 
of  San  Diego,  118  Cal.,  556,  where  an  attempt  was  made  to  lay  down  some 
rule  by  which  it  should  be  determined  whether  rates  were  or  were  not  reason- 
able. The  court  was  hopelessly  divided  on  the  subject.  The  opinion  of 
three  of  the  Justices,  Van  Fleet,  Henshaw  and  McFarland,  held  in  an  opinion 
written  by  the  former,  that  the  money  reasonably  and  properly  expended  by 
the  company  in  acquiring  and  constructing  its  works  should  be  taken  as  the 
basis  in  fixing  rates,  and  a  reasonable  compensation  for  such  expenditures 
should  be  provided.     In  the  course  of  the  opinion  referred  to,  it  is  said  : 

"What  that  standard  is,  as  applied  to  the  present  case,  we  think  not  difficult 
of  ascertainment.  As  we  have  said,  it  is  not  the  water  or  the  distributing  works 
which  the  compauy  may  be  said  to  own,  and  the  value  of  which  is  to  be  ascer- 
tained. They  were  acquired  and  contributed  for  the  use  of  the  public ;  the  public 
may  be  said  to  be  the  real  owner,  and  the  company  only  the  agent  of  the  public 
to  administer  their  use.  What  the  company  has  parted  with,  what  the  public 
has  acquired,  is  the  money  reasonably  and  properly  expended  by  the  company 
in  acquiring  its  property  and  constructing  its  works.  The  State  has  taken  the 
use  of  that  money,  and  it  is  for  that  use  that  it  must  provide  just  compensation. 
What  revenue  money  is  capable  of  producing  is  a  question  of  fact,  and,  theoret- 
ically at  least,  susceptible  of  more  or  less  exact  ascertainment.  Regard  must 
be  had  to  the  nature  of  the  investment,  the  risk  attendant  upon  it,  and  the  public 
demand  for  the  product  of  the  enterprise.  It  would  not,  of  course,  be  reason- 
able to  allow  the  company  a  profit  equal  to  the  greatest  rate  of  interest  realized 
upon  any  kind  of  investment,  nor,  on  the  other  hand,  to  compel  it  to  accept 
the  lowest  rate  of  remuneration  which  capital  ever  obtains.  Comparison  must 
be  made  between  this  business  and  other  kinds  of  business  involving  a  similar 
degree  of  risk,  and  all  the  surrounding  circumstances  must  be  considered.  An 
important  circumstance  will  always  be  the  rate  of  interest  at  which  money 
can  be  borrowed  for  investment  in   such  a  business;  and,   where   the  business 


134  History  of  the  Bench  and  Bar  of  California. 

appears  to  be  honestly  and  prudently  conducted,  the  rate  which  the  company 
would  be  compelled  to  pay  for  borrowed  money  will  furnish  a  safe,  though  not 
always  conclusive  criterion  of  the  rate  of  profit  which  will  be  deemed  reasonable. 
In  ordinary  cases,  where  the  management  is  fair  and  economical,  it  would  be 
unreasonable  to  fix  the  rates  so  low  as  to  prevent  the  company  from  paying 
interest  on  borrowed  money  at  the  lowest  market  rate  obtainable ;  and  even  then, 
some  allowance  or  margin  should  be  made  for  any  risk  to  which  the  company 
may  be  exposed,  over  and  above  the  risk  taken  by  a  lender. 

"But  it  is  contended  that  the  power  of  the  court  is  at  most  to  inquire 
whether  some  reward  will  be  provided  by  the  rates  fixed  and  that  if  some  re- 
ward, however  small,  is  so  provided,  the  court  cannot  interfere.  We  have  been 
referred  to  dicta  in  some  of  the  cases  which  do  support  that  contention ;  but 
we  are  unable  to  agree  with  that  conclusion.  It  is  an  elementary  doctrine  of  con- 
stitutional law  that  the  question  of  just  compensation  is  a  judicial  question  to  be 
determined  in  the  ordinary  course  of  judicial  proceedings;  and,  construing  arti- 
cle XIV  of  our  constitution  with  section  14  of  article  I  (as  we  think  we  are  bound 
to  do),  we  find  no  difficulty  in  holding  that  whenever  the  rates  fixed  by  the  council 
are  grossly  and  palpably  insufficient  to  furnish  such  a  revenue  as  will  afford  just 
compensation  within  the  rules  above  declared,  redress  may  be  had  in  the  courts." 

From  this  it  was  reasonable  to  hope  that  some  measure  of  justice  would 
eventually  be  dealt  out  to  corporations  and  others  supplying  water  to  the 
public.  In  the  same  case,  in  a  dissenting  opinion  of  the  Chief  Justice,  it  was 
said  (p.  588)  : 

"I  think  the  judgment  and  order  appealed  from  should  be  affirmed.  In 
fixing  water  rates,  it  is  the  duty  of  the  city  council  to  provide  for  a  just  and 
reasonable  compensation  to  the  water  company.  Anything  short  of  that  is 
simple  confiscation,  and  is  not  only  a  violation  of  constitutional  rights,  but  is  an 
extremely  short-sighted  policy.  Rates  ought  to  be  adjusted  to  the  value  of  the 
service  rendered,  and  that  means  that  the  water  companies  should  be  allowed  to 
collect  annually  a  gross  income  sufficient  to  pay  current  expenses,  maintain  the 
necessary  plant  in  a  state  of  efficiency,  and  declare  a  dividend  to  stockholders 
equal  to  at  least  the  lowest  current  rates  of  interest,  not  on  the  par  or  market 
value  of  the  stock,  but  on  the  actual  value  of  the  property  necessarily  used  in 
providing  and  distributing  the  water  to  consumers. 

To  arrive  at  the  actual  value  of  the  plant,  water  rights,  real  estate,  etc., 
cost  is  an  element  to  be  considered,  but  it  is  not  conclusive.  The  plant  may  have 
cost  too  much,  it  may  have  been  planned  upon  too  liberal  a  scale,  its  construc- 
tion may  have  been  extravagantly  managed,  the  real  estate  and  water  rights  may 
have  cost  less  or  more  than  their  present  value,  and,  therefore,  cost  will  sel- 
dom represent  the  actual  capital  at  present  invested  in  the  works,  but  such 
present  value  is  the  true  basis  upon  which  compensation,  in  the  shape  of  divi- 
dends, is  to  be  allowed. 

As  to  current  expenses,  all  operating  expenses  reasonably  and  properly  in- 
curred should  be  allowed,  taxes  should  be  allowed,  and  the  cost  of  current 
repairs. 

In  addition  to  this,  if  there  is  any  part  of  the  plant,  such  as  main  pipes,  etc., 
which  at  the  end  of  a  term  of  years — twenty  years,  for  instance — will  be  so  de- 
cayed and  worn  out  as  to  require  restoration,  an  annual  allowance  should  be  made 
for  a  sinking  fund  sufficient  to  replace  such  part  of  the  plant  when  it  is  worn 
out." 

This  was  arriving  at  practically  the  same  result  as  would  have  been 
reached  by  the  basis  fixed  by  the  other  three  Justices.  In  arriving  at  the 
compensation  that  should  properly  be  allowed,  the  Chief  Justice  takes  the 


History  of  the  Bench  and  Bar  of  California.  135 

present  value  as  the  basis  of  compensation,  instead  of  the  original  cost,  as  in 
the  other  opinion.  But  he  holds  that  in  addition  to  a  reasonable  return  on 
the  present  value,  the  company  should  be  allowed  sufficient  revenue  to  make 
good  the  decay  or  depreciation  of  the  perishable  portion  of  the  plant,  and 
above  this  and  expenses  of  operation  and  repairs,  dividends  to  the  stockholders 
of  not  less  than  the  current  rate  of  interest  should  be  provided  by  the  rates. 
Either  of  the  modes  laid  down  in  the  two  opinions  cited  would  lead  to  fair  and 
just  results,  both  to  water  companies  and  consumers.  The  allowance  for 
depreciation  by  the  Chief  Justice  in  connection  with  the  basis  of  an  allow- 
ance on  the  present  value  is,  perhaps,  nearer  a  fair  and  equitable  solution  of 
this  vexed  question  than  any  other.  But  its  weakness  consists  in  the  fact  that 
it  is  utterly  impossible  to  arrive,  at  any  given  time,  at  the  present  value  of 
the  plant.  Most  of  it  is  under  ground,  and  its  condition  must  be  a  matter 
of  mere  conjecture  or  opinion.  On  the  other  hand,  the  actual  cost  of  the 
plant,  and  what  should  reasonably  have  been  expended  in  its  construction, 
should  be  easy  to  ascertain.  And,  of  course,  the  actual  cost  should  never 
be  allowed  for  where  it  is  shown  that  such  cost  was  extravagant  or  unneces- 
sary. But  whatever  amount  a  company  has  reasonably  and  necessarily 
expended  in  supplying  water  to  its  consumers,  is  so  much  expended  for  their 
use  and  benefit,  and  on  that  amount  they  should  be  required  to  pay  a  reason- 
able rate  of  interest  by  the  rates  established. 

But  there  were  other  opinions  delivered  in  the  case  under  consideration. 
Mr.  Justice  Garoutte  took  the  ground,  once  declared  in  some  of  the  decisions 
of  the  Federal  courts,  but  long  since  abandoned,  that  if  some  revenue  can 
be  derived  by  the  company  from  the  rates,  however  small,  the  courts  cannot 
interfere.     He  says  (p.  581)  : 

"Taking  the  findings  of  fact  as  they  stand,  the  schedule  of  rates  fixed  by 
the  city  should  not  be  disturbed.  The  valuation  of  the  plant  is  $750,000;  the 
operating  and  current  expenses  are  $40,000.  The  revenue  from  the  sale  of  water 
under  the  schedule  of  rates  would  be  and  actually  was  $65,000.  This  leaves  a 
profit  of  $25,000  upon  the  investment.  To  be  sure  it  is  small,  tvlioi  zvc  consider 
the  amount  of  money  invested.  To  be  sure  it  is  not  enough,  and  possibly  not 
one-half  the  sum  that  could  be  earned  if  that  amount  of  money  ivas  invested  in 
other  business  undertakings,  but  with  these  things  we  have  nothing  to  do. 
Those  are  matters  passed  upon  by  the  city  in  the  exercise  of  a  discretion  granted 
by  the  constitution,  and  its  decision  as  to  the  reasonableness  of  the  amount  of 
revenue  to  be  derived  by  the  company  from  the  rates  is  conclusive  upon  tjie 
courts.  While  this  sum  is  not  enough  upon  this  character  of  investment,  still 
it  is  three  and  one-half  per  cent,  and  such  return  is  a  substantial  profit.  We 
mean  it  is  so  substantial  that  a  court  of  equity  in  view  of  the  law  of  the  land, 
cannot  .say  that  the  rates  are  so  unreasonable  as  to  be  confiscatory  in  character, 
and  thus  violate  any  principle  of  constitutional  law." 

Thus  it  is  conceded  by  the  justice  writing  this  .qiiniiui  tli;il  the  rates  in 
question  are  unreasonable.  But,  while  asserting  in  the  opinion  that  rea.son- 
able  rates  must  be  allowed,  and  that  the  courts  have  the  power  to  interfere 
and  prevent  the  enforcement  of  unreasonable  rates,   he  holds,  nevertheless, 


136  History  of  the  Bench  and  Bar  of  California. 

that  these  unreasonable  rates,  held  to  be  so  by  him,  cannot  be  set  aside.  But 
to  make  it  still  worse,  the  court  below  had  found,  as  one  of  the  facts  in  the 
case,  that  the  depreciation  of  the  plant  of  the  company  amounted  to  three  and 
one-half  per  cent,  per  annum,  the  full  amount  the  rates  would  return,  as  held 
by  him,  and  he  concluded  that  no  allowance  could  be  made  for  this  loss.  And 
further,  the  court  found  that  the  plant  was  constructed  on  borrowed  capital, 
on  which  the  company  was  paying  Hve  per  cent,  interest.  But  in  the  estima- 
tion of  the  writer  of  the  opinion,  this  was  wholly  immaterial,  although  it 
showed  that  as  the  rates  yielded  only  three  and  a  half  per  cent.,  the  company 
must  necessarily  lose  one  and  a  half  per  cent,  per  annum. 

Such  a  construction  of  the  laws  of  the  State  and  the  rights  of  those  who 
have  invested  their  money  in  enterprises  looking  to  the  development  and 
supply  of  water  does  not  tend  to  encourage  such  enterprises  or  impress  a 
candid  mind  with  the  justice  of  such  laws. 

But  there  were  still  other  opinions  delivered  in  this  same  case.  Mr. 
Justice  Temple  takes  the  ground  that  there  is  "no  obligation  to  remunerate 
water  companies  for  investments  made  or  to  allow  interest  thereon,  either 
upon  first  cost  or  present  value,"  and  that  as  to  the  cost  of  bringing  water 
into  the  city  and  distributing  it,  "these  matters  are  merely  incidental,  and 
never  determinative,"  and  he  "agrees,  generally,  in  the  views  expressed  in 
the  opinion  of  Justice  Garoutte,''  and  concludes  by  saying: 

"The  only  proper  judicial  question  is  whether  compensating  rates  have  been 
fixed.  Whether  they  are  too  high  or  too  lozv  is  not  a  judicial  question.  The 
judge  cannot  substitute  his  judgment  for  that  of  the  body  to  whom  the  discre- 
tion is  given  by  the  constitution." 

By  "compensating  rates,"  is  meant,  it  is  supposed,  such  rates  as  will  return 
the  company  some  tiling  over  and  above  operating  expenses,  no  matter  how 
little. 

Mr.  Justice  Harrison,  in  another  separate  opinion,  holds  that  the  present 
value,  and  not  the  cost  of  the  plant,  must  be  taken  as  the  basis  of  fixing  the 
rates,  but  holds  further  that  the  courts  have  no  power  to  inquire  into  the 
reasonableness  of  the  rates,  saying: 

"In  designating  the  city  council  as  the  body  to  fix  these  rates  the  constitu- 
tion has  clearly  indicated  that  they  are  not  to  be  fixed  by  the  courts.  The 
water  company  has  the  right  to  protection  by  the  judiciary  from  the  enforcement 
of  such  rates  as  will  deprive  it  of  compensation  for  furnishing  the  water;  but 
if  the  rates  fixed  by  the  council  afford  compensation  to  the  water  company,  the 
question  of  the  reasonableness  of  this  compensation  is  a  question  of  fact  which 
is  not  open  to  review  by  the  courts.  If  the  courts  are  authorized  to  determine 
the  amount  of  compensation  which  will  be  reasonable,  the  rates  will  be  fixed 
by  them,  rather  than  by  the  city  council ;  and,  for  the  same  reason,  the  city  coun- 
cil, and  not  the  courts,  are  authorized  to  determine  whether  the  rates,  to  be  rea- 
sonable, shall  be  fixed  at  such  amount  as  will  yield  to  the  water  company  any 
definite  rate  of  interest." 

This  is  the  most  radical  ground  taken  by  any  of  the  Justices.  Since  the 
Supreme  Court  of  the  United  States  has  unequivocally  abandoned  this  same 


History  of  the  Boich  and  Bar  of  California.  137 

doctrine,  laid  down  in  Mimn  v.  Illinois,  and  the  other  Granger  cases,  this 
conclusion  of  Justice  Harrison  has  no  support  in  authority,  and  it  would  be 
difficult  to  find  any  support  for  it  it  reason  or  justice.  The  conclusion  is 
a  purely  arbitrary  one,  and  cannot  but  be  harmful  because  of  its  injustice. 

It  may  be  said  that  out  of  the  diversity  of  opinions  exhibited  in  this  case, 
no  definite  results  can  be  extracted  further  than  that  a  majority  of  the  court, 
■vyhile  disagreeing  as  to  the  manner  of  reaching  proper  results,  did  announce 
a  reasonable  and  just  conclusion  as  to  the  rights  of  water  companies  and 
their  consumers.  But  this  rational  and  just  position,  taken  by  the  majority 
of  the  court,  has  not  borne  fruit  in  later  decisions  of  the  court,  unfortu- 
nately. In  the  case  of  Redlands,  Lugonia  &c.  Water  Co.  v.  Redlands,  121 
Cal.,  312,  the  opinion  was  written  by  Mr.  Justice  Harrison,  who- had  taken 
such  radical  ground  in  the  San  Diego  case,  and  concurred  in  by  Justice  Gar- 
outte,  who  had  taken  like  ground  in  the  former  case.  Justice  Van  Fleet 
concurred  in  the  judgment  only.  It  is  said  in  the  opinion  that  it  was  held 
in  the  San  Diego  case  that  the  interest  on  the  indebtedness  of  the  company 
is  not  a  proper  item  of  expenditure  to  be  provided  in  fixing  the  rates,  and  that 
the  company  was  not  entitled  to  have  rates  so  fixed  as  to  enable  it  to  set  apart 
a  certain  amount  each  year  for  the  depreciation  of  its  plant,  and  as  the  judg- 
ment of  the  court  below  allowed  these  amounts,  it  was  reversed  on  the  ground 
that  it  was  inconsistent  with  the  San  Diego  case. 

It  will  be  seen  from  the  review  of  the  opinions  in  the  San  Diego  case, 
above,  that  it  amounted  to  nothing  more  than  a  reversal  of  the  case  without 
actually  determining  any  principle  of  law.  The  case  was  reversed  solely 
because  two  certain  findings  of  the  court  below  were  held  not  to  be  sus- 
tained by  the  evidence.  And  this  later  case,  not  being  concurred  in,  so  far 
as  its  reasoning  is  concerned,  by  all  of  the  Judges,  and  being  in  department, 
decides  nothing  except  that  the  case  be  reversed.  But  there  is  still  another 
case  between  the  same  parties,  reported  in  121  Cal.,  365,  and  decided  in  banc. 
In  this  case,  also.  Justice  Harrison  again  wrote  the  opinion.  The  opinion 
was  concurred  in  by  Justices  Garoutte,  Temple  and  Henshaw,  and  Justice 
Van  Fleet  again  concurred  in  the  judgment  only.  Chief  Justice  Beatty  and 
Justice  McFarland  did  not  participate  in  the  decision.  The  court  declares 
that  certain  things  were  decided  in  the  San  Diego  case  and  reaffirms  the  rule 
laid  down  by  Justice  Harri.=on  in  Redlands  &c.  Water  Co.  v.  Redlands,  decided 
two  days  earlier,  that  the  present  value  of  the  plant  must  be  taken  as  the  basis 
of  fixing  rates  and  that  provision  for  payment  of  interest  on  the  bonded  indebt- 
edness of  the  company  was  not  necessary,  and  fortifies  this  position  by  citing 
Smyth  V.  Ames,  169  U.  S.,  466.  This  case,  like  the  other,  is  decided  on  an 
entirely  difi^erent  ground,  viz.,  that  there  was  no  proof  of  the  value  of  the 
plant,  and  as  that  was  an  essential  element  in  determining  whether  the  rates 
were  reasonable  or  not,  the  decision  of  the  court  below  tliat  the  rates  were 
reasonable  must  be  affirmed. 


138  History  of  the  Bench  and  Bar  of  California. 

But,  taking  all  of  the  decisions  together,  it  may  he  safely  said  to  be  the 
judgment  of  the  Supreme  Court  of  this  State  that  in  fixing  rates  the  bonded 
indebtedness,  or  the  amount  of  interest  paid  upon  it,  is  immaterial,  and  that 
the  present  value  of  the  plant,  and  not  its  cost,  must  be  taken  as  the  basis  of 
fixing  the  rates.  Whether  the  depreciation  of  the  plant  should  be  considered 
and  made  good  by  the  rates  has  not  been  decided.  It  is  claimed  that 
depreciation  is  made  good  by  an  allowance  for  repairs.  If  it  were  true  that 
the  loss  by  depreciatioii  could  be  met  in  the  way  indicated,  the  position  taken 
would  be  unassailable.  But  it  is  far  from  being  true.  Repairs,  in  the  proper 
sense,  are  the  ordinary  patching  of  pipes  where  leaks  occur,  and  the  replace- 
ment of  a  piece  of  pipe  here  and  there,  as  defects  are  foui^  or  breaks  occur, 
and  work  of  a  similar  kind,  each  year.  But  while  these  repairs  are  going 
on,  the  whole  plant  is  slowly  but  surely  going  to  decay,  and  sooner  or  later, 
whole  pipe  lines,  and  eventually  the  whole  distributing  system,  must  be 
replaced.  Unless  this  loss  is  made  good  by  rates  allowed,  the  company  must 
eventually  lose  its  plant.  In  the  case  of  San  Diego  Water  Co.  v.  San  Diego, 
re\'iewed  above,  it  was  proved  and  found  by  the  court  that  the  depreciation 
amounted  to  three  and  a  half  per  cent,  per  annum.  The  case  was  reversed, 
and  retried  by  another  judge,  and  the  same  finding  was  made.  This  is  a 
heavy  loss  that,  under  the  decisions  of  the  Supreme  Court,  would  amount 
to  the  full  sum  held  by  the  court  to  be  reasonable  compensation  to  the  company. 
There  can  be  no  doubt  whatever  that  if  the  Supreme  Court  of  this  State 
adheres  to  the  narrow  and  unjust  construction  of  our  irrigation  laws  found 
in  the  cases  already  cited,  it  means  the  final  financial  ruin  of  all  companies 
supplying  water  under  such  laws,  unless  the  members  of  the  bodies  to  whom 
the  important  duty  of  fixing  such  rates,  realize  the  folly  of  establishing  such 
rates  as  must  destroy  the  companies  or  individuals  that  have  already  invested 
their  money  in  sueh  enterprises  and  prevent  all  fiu'ther  investments. 

There  is  dine  other  unjust  feature  of  the  law  relating  to  the  fixing  of  rates 
in  citij^s  and  towns.  The  law  provides  that  such  rates  must  be  fixed  every 
year.  If  an  ordinance  fixing  confiscatory  rates  is  adopted,  the  suffering  com- 
pany has  no  remedy  but  to  go  into  the  courts.  It  cannot  liy  any  poslsibility 
reach  a  final  decision  in  the  Supreme  Court  before  the  ordinance  ceases  to 
exist,  and  another,  it  may  be  equally  obnoxious,  is  adopted.  The  San  Diego 
case  has  been  in  court  now  nearly  ten  years,  and  the  ordinance  assailed  in  that 
case  expired  years  ago.  Therefore,  if  the  company  finally  establishes  the 
fact  that  the  rates  were  unreasonable  and  unjust,  as  two  Judges  of  the  Superior 
Court  have  decided,  it  will  be  unable,  under  existing  laws,  to  obtain  any  relief. 
It  was  bound,  on  penalty  of  forfeiture  of  its  plant,  to  furnish  the  water  at 
the  unjust  rate  imposed  upon  it.  There  should  be  some  provision  by  which, 
after  rates  have  been  declared  void,  new  and  just  rates  shall  be  fixed  at  the 
end  of  the  litigation  for  the  year  covered  by  the  ordinance,  and  then  enforced. 

But  the  question  of  the  reasonableness  of  rates  is  not  a  State,  but  a  Federal 


History  of  the  Bench  and  Bar  of  California.  139 

question.  If  we  look  to  the  decisions  of  the  Federal  courts,  we  find  them 
differing  widely  from  the  decisions  of  the  Supreme  Court  of  this  State.  Most 
of  the  cases  affecting  the  question  of  rates  relate  to  rates  of  railroad  com- 
panies. To  review  all  of  the  cases  on  this  important  question  would  extend 
this  paper  unnecessarily.  Therefore,  only  a  few  of  the  very  latest  cases 
bearing  on  this  question  will  be  noticed.  The  question  was  before  Judge 
Ross,  of  the  Circuit  Court  of  the  United  States,  in  San  Diego  Land  and  Town 
Co.  V.  National  City,  74  Fed  Rep.,  79.  In  this  case  it  was  held  that  the  present 
value  of  the  plant  should  be  taken  as  the  basis  of  fixing  rates,  but  that  due 
regard  should  be  given  to  the  rights  of  the  public  and  to  the  cost  of  mainte- 
nance of  the  plant  and  its  depreciation  by  reason  of  wear  and  tear.  The  court 
said : 

"It  is  obvious,  I  think,  that  it  must  be  held,  either  that  the  right  of  judicial 
interference  exists  only  when  the  schedule  of  rates  established  will  fail  to  secure 
the  owners  of  the  property  some  compensation  or  income  from  their  investment 
(however  small),  or  else  that  the  court  must  adjudicate,  when  properly  called 
upon  to  do  so,  whether  the  rates  established  by  the  municipal  authorities  are  so 
manifestly  unreasonable  as  to  amount  to  the  taking  of  property  for  public  use 
without  just  compensation.  Undoubtedly,  every  intendment  is  in  favor  of  the 
rates  as  established  by  the  municipal  authorities.  But  as  it  is  firmly  established 
that  it  is  within  the  scope  of  the  judicial  power,  and  a  part  of  the  judicial  duty, 
to  inquire  whether  rates  so  established  operate  to  deprive  the  owner  of  his  prop- 
erty without  just  compensation,  it  seems  to  me  that  it  logically  follows,  that  if 
the  court  finds  from  the  evidence  produced  that  they  are  manifestly  unreasonable, 
it  is  its  duty  to  so  adjudge,  and  to  annul  them;  for  it  is  plain  that  if  they  are 
manifestly  unreasonable,  they  cannot  be  just.  In  the  solution  of  that  problem 
many  considerations  may  enter;  among  them,  the  amount  of  money  actually 
invested.  But  that  is  by  no  means,  of  itself,  controlling,  even  where  the  property 
was  at  the  time  fairly  worth  what  it  cost.  If  it  has  since  enhanced  in  value, 
those  who  invested  their  money  in  it,  like  others  who  invest  their  money  in  any 
other  kind  of  property,  are  justly  entitled  to  the  benefit  of  the  increased  value. 
If,  on  the  other  hand,  the  property  has  decreased  in  value,  it  Is  but  right  that 
those  who  invested  their  money  in  it.  and  took  the  chances  of  an  increase  in 
value,  should  bear  the  burden  of  the  decrease.  In  my  judgment,  it  is  the  actual 
value  of  the  property  at  the  time  the  rates  are  to  be  fixed  that  should  form  the 
basis  upon  which  to  compute  just  rates;  having,  at  the  same  time,  due  regard 
to  the  rights  of  the  public,  and  to  the  cost  of  maintenance  of  the  plant,  and  its 
depreciation  by  reason  of  wear  and  tear." 

It  was  further  held  in  this  case  that  the  fact  that  the  company  had  borrowed 
money  and  was  paying  interest  on  it  was  immaterial.  On  this  point,  it  was 
said : 

"Nor  can  it  make  any  difference  that  the  complainant,  in  the  construction 
of  its  plant  and  the  carrying  on  of  its  work,  borrowed  $300,000  on  which  it  pays 
interest,  and  for  which,  it  may  be,  it  issued  its  bonds.  The  buyer  of  such  bonds, 
like  the  loaner  of  money  on  a  mortgage  upon  real  estate,  does  so  with  his  eyes 
open.  The  loaner  of  money  on  a  mortgage  knows  that  conditions  may  be  such 
aS  to  increase  the  value  of  his  security,  or  they  may  be  such  as  to  decrease  its 
value.  He  takes  the  chances  that  everybody  must  take  who  engages  in  business 
transactions.  The  buyer  of  bonds  issued  by  a  water  company  such  as  the  com- 
plainant has  the  like  knowledge,  and  the  further  knowledge  that  the  law.  which 
everyone  is  presumed  to  know,  prescribes  that  the  rates  to  be  charged   for  the 


140  History  of  the  Bench  and  Bar  of  California. 

water  furnished  by  the  company  shall  be  established  and  fixed  by  a  special 
tribunal,  subject,  as  all  State  laws  are,  to  the  paramount  provisions  of  the  consti- 
tution of  the  United  States,  among  which  is  one  which  secures  such  investors 
against  the  fixing  of  such  rates  as  will  operate  to  deprive  him  of  his  property 
without  just  compensation." 

Thus  it  will  be  seen  that  the  Circuit  Court  disagTeed  with  the  Justices  of 
the  State  court  in  holding  that  the  court  had  power  to  inquire  and  determine 
whether  the  rates  in  question  were  reasonable  or  not,  and  that  the  deprecia- 
tion of  the  plant  from  wear  and  tear  should  be  considered.  This  case  went  to 
the  Supreme  Court  of  the  United  States  on  appeal.  That  court  in  San  Diego 
Land  and  Town  Co.  v.  National  City,  174  U.  S.,  739,  laid  down  the  fol- 
lowing rules  for  the  determination  of  the  question  whether  rates  are  reason- 
able or  not : 

"The  contention  of  the  appellant  in  the  present  case  is  that  in  ascertaining 
what  are  just  rates  the  court  should  take  into  cousideration  the  cost  of  its  plant, 
the  cost  per  annum  of  operating  the  plant,  including  interest  paid  on  money  bor- 
rowed and  reasonably  necessary  to  be  used  in  constructing  the  same;  the  annual 
depreciation  of  the  plant  from  natural  causes  resulting  from  its  use ;  and  a  fair 
profit  to  the  company  over  and  above  such  charges  for  its  services  in  supplying 
water  to  consumers,  either  by  way  of  interest  on  the  money  it  has  expended  for 
the  public  use,  or  upon  some  other  fair  and  equitable  basis.  Undoubtedly,  all 
these  matters  ought  to  be  taken  into  consideration,  and  such  weight  be  given 
them,  when  rates  are  being  fixed,  as  under  all  the  circumstances  will  be  just  to 
the  company  and  to  the  public.  The  basis  of  calculation  suggested  by  the  appel- 
lant is,  however,  defective  in  not  requiring  the  real  value  of  the  property  and 
the  fair  value  in  themselves  of  the  services  rendered  to  be  taken  into  consid- 
eration. What  the  company  is  entitled  to  demand,  in  order  that  it  may  have 
just  compensation,  is  a  fair  return  upon  the  reasonable  value  of  the  property  at 
the  time  it  is  being  used  for  the  public.  The  property  may  have  cost  more  than 
it  ought  to  have  cost,  and  its  outstanding  bonds  for  money  borrowed  and  which 
went  into  the  plant  may  be  in  excess  of  the  real  value  of  the  property.  So  that 
it  cannot  be  said  that  the  amount  of  such  bonds  should  in  every  case  control  the 
question  of  rates,  although  it  may  be  an  element  in  the  inquiry  as  to  what  is, 
all  the  circumstances  considered,  just  both  to  the  company  and  to  the  public." 

Here  it  is  distinctly  held  that  the  cost  of  the  plant,  the  cost  per  annum  of 

operating  the  plant,  including  interest  paid  on  money  borrowed  and  reasonably 

necessary  to  be  used  in  constructing  the  plant,  the  annual  depreciation  of 

the  plant  from  natural  causes  resulting  from  its  use,  the  real  value  of  the 

plant,  and  the  fair  value  in  themselves  of  the  services  rendered,  should  all  be 

taken  into  account,  and  a  fair  return  allowed  upon  the  reasonable  value  of 

the  plant  at  the  time  it  is  being  used  for  the  public  use.     This  basis  of  fixing 

rates  is  fair  and  just,  and  if  fairly  lived  up  to  in  practice,  no  injustice  could 

result.     But  it  embodies  two  elements  of  uncertainty.     Who  can  arrive,  with 

any  degree  of  certainty,  at  the  present  value  of  a  water  plant,  the  greater 

part  of  which  is  underground,  and  its  actual  condition  beyond  ascertainment, 

and  who  can  arrive  at  the  value  of  the  services  to  the  public?     It  has  never 

yet  been  attempted  and  probably  never  will  be.     The  only  way  in  wdiich  a 

proper  basis  can  be  arrived  at  is  to  take  the  reasonable  cost  of  the  plant,  which 

can  be  easily  arrived  at.     If  the  construction  has  been  extravagant  or  unneces- 


History  of  the  Bench  and  Bar  of  California.  141 

sarily  expensive,  the  actual  cost  should  not  be  allowed  for,  as  is  said  in  the 
last  case  cited.  And  this  case  may  reasonably  be  construed  to  mean  just  this. 
The  reasons  given  for  holding  that  the  actual  cost,  or  the  outstanding  bonds, 
should  not  control  in  all  cases,  are  that  "the  property  may  have  cost  more 
than  it  ought  to  have  cost,  and  its  outstanding  bonds  for  money  borrowed  and 
which  went  into  the  plant,  may  be  in  excess  of  the  real  value  of  the  property." 
It  must  be  inferred  from  this  that  if  the  property  did  not  cost  more  than 
it  ought  to  have  cost  and  the  bonds  issued  \vere  not  excessive,  the  company 
should  have  a  reasonable  return  on  the  cost,  sufficient  at  least  to  pay  the  interest 
on  its  bonds,  and  a  fair  profit  to  the  company  in  addition,  provided  the  rates 
necessary  to  furnish  such  return  would  not  be  unreasonable  or  oppressive  to 
the  public  or  the  consumers  taking  water  from  the  company.  As  to  what 
would  be  the  fair  value  of  the  services  to  the  public,  no  rule  can  be  laid  down. 
It  might  appear  that  in  order  to  allow  the  company  the  interest  on  its  bonds 
and  a  fair  profit  to  the  stockholders,  the  rates  must  necessarily  be  oppressive. 
If  so,  under  this  decision,  which  must  be  taken  as  finally  establishing  the  law 
on  the  subject,  the  rates  could  not  be  upheld.  But  certainly  this  element  of 
value  of  the  service  to  the  public  is  a  most  uncertain  one. 

As  to  the  interest  on  the  bonds,  as  shown  above.  Judge  Ross  held,  in 
effect,  that  the  bondholders  must  take  their  chances  on  the  rise  or  fall  in  the 
value  of  the  property  mortgaged.  But  nevertheless,  their  right  to  receive 
their  interest  from  rates  established  cannot  be  overlooked  or  disregarded. 
The  constitution  of  the  State  guarantees  that  reasonable  rates  and  just  com- 
pensation shall  be  allowed.  Judge  Ross  says,  in  the  course  of  his  opinion, 
that  the  buyer  of  bonds  takes  with  knowledge  of  the  laws  providing  for 
the  fixing  of  rates,  "subject  to  the  paramount  provisions  of  the  Constitu- 
tion of  the  United  States,  among  zvhich  is  one  which  secures  such  investors 
against  the  -fixing  of  such  rates  as  zvill  operate  to  deprive  him  of  his  property 
without  just  compensation/' 

Therefore  the  bondholders  have  an  interest  in  the  establishment  of  just 
rates  that  they  may  protect.  Consequently,  it  is  held  that  a  trustee  of  the 
bondholders  may  maintain  suit  to  declare  void  rates  that  are  unreasonable 
and  will  not  secure  the  payment  of  their  interest. 

Mercantile  Trust  Co.  v.  Texas  &  Pacific  Ry.  Co.,  51  Fed  Rep.,  529; 

Reagan  v.  Farmers'  Loan  and  Trust  Co.,  154  U.  S.,  362; 

Consolidated  Water  Co.  v.  City  of  San  Diego,  84  Fed.  Rep.,  369; 

Benson  v.  City  of  San  Diego,  100  Fed.  Rep.,  158. 
It  follows  that  the  questioil  of  the  amount  of  the  bonded  indebtedness  is 
not  immaterial,  as  held  by  the  State  Supreme  Court,  but  is  an  element,  as 
directly  held  by  the  Supreme  Court  of  the  United  States,  to  be  taken  into 
account  in  fixing  the  rates. 

In  fixing  rates,  the  board  of  supervisors  of  a  city  and  county  or  governing 
body  of  a  citv  or  town,  acts  independently  of  the  mayor,  and  he  has  no  power 
to  veto  an  ordinance  fixing  rates. 


142  History  of  the  Bench  and  Bar  of  California. 

Jacobs  V.  Board  of  Supervisors,  loo  Cal.,  121. 

The  distinction  between  water  appropriated  for  sale,  rental,  or  distribution, 
and  that  appropriated  for  private  use,  should  be  remembered  in  this  connection. 
Water  may  be  appropriated  for  the  private  use  of  any  number  of  persons. 
And  a  corporation  may  appropriate  it  for  the  use  of  its  stockholders.  It  is 
only  where  the  water  is  appropriated  for  sale,  rental,  or  distribution  that  it  is 
made  a  public  use  and  within  the  provisions  of  the  constitution. 
McFadden  v.  Board  of  Supervisors,  74  Cal.,  571. 

And  in  this  connection  attention  should  be  called  to  the  case  of  Merrill  v. 
South  Side  Irrigation  Co.,  112  Cal,  426.  This  case  gives  a  perverted  mean- 
ing to  the  word  "appropriated,"  that  is  unfortunate.  The  word  as  applied 
to  the  acquisition  and  use  of  water  has  a  technical  and  well  understood  mean- 
ing, or  had  until  this  case  was  decided.  It  included  whatever  was  necessary 
to  the  diversion  of  running  water  and  the  application  of  it  to  such  beneficial 
use  as  would  entitle  the  appropriator  to  its  continued  use.  In  this  case,  the 
court  construed  it  to  include  the  application  of  the  water  to  the  use  mentioned 
in  the  constitution.     The  court  says : 

"Appellant  contends  that  the  word  'appropriated,'  as  used  hi  the  section  of 
the  constitution  quoted  above,  only  applies  to  water  appropriated  from  streams 
upon  the  public  lands,  and  has  no  application  to  water  acquired  by  other  means 
than  an  appropriation  under  the   Civil   Code. 

This  construction  is  too  narrow,  and,  we  think,  does  violence  to  the  evident 
intent  of  the  framers  of  the  constitution. 

There  is  no  doubt  but  that  in  a  broad  sense  to  appropriate  is  to  make  one's 
own,  to  make  it  a  subject  of  property,  and  it  is  often  used  in  the  sense  of  denot- 
ing the  acquisition  of  property,  and  a  right  of  exclusive  enjoyment  in  those 
things  which  before  were  without  an  owner,  or  were  publici  juris. 

But  it  is  also  used  in  the  sense  of  prescribing  property  or  money  to  a  par- 
ticular use,  as  to  appropriate  money  to  a  designated  purpose ;  to  appropriate 
land  to  grazing,  or  fruit,  or  other  purpose.  It  is  also  used  in  the  sense  of  'to 
distribute.'     (Anderson's  Law  Dictionary.) 

When  water  is  designated,  set  apart,  and  devoted  to  purposes  of  sale,  rental, 
or  distribution,  it  is  appropriated  to  those  uses,  or  some  of  them,  and  becomes 
subject  to  the  public  use  declared  by  the  constitution,  without  reference  to  the 
mode  of  its  acquisition." 

The  constitution  says  water  "appropriated  for  sale,  rental,  or  distribution." 
The  court  holds  that  it  means  "appropriated  to  sale,  rental  or  distribution." 
It  was  a  stretching  and  distortion  of  the  meaning  of  the  word  for  the  laud- 
able purpose  of  preventing  monopolies,  but  this  sort  of  confusion  is  to  be 
regretted,  nevertheless. 

FIXING    OF    RATES    BY    BOARDS    OF      SUPERVISORS    FOR    WATER     SUPPLIED 
OUTSIDE    OF    CITIES    AND    TOWNS. 

There  are  some  quite  material  differences  between  the  establishment  of 
rates  in  cities  and  towns  and  in  counties  outside  of  such  cities  and  towns, 
In  cities  and  towns,  the  rates  must,  by  the  terms  of  the  constitution,  be  fixed 
annually.     In  the  outside  territory  this  is  not  necessary.     As  we  shall  see 


History  of  the  Bench  and  Bar  of  California.  143 

further  along,  until  the  board  of  supervisors  estabHshes  the  rates,  the  com- 
pany furnishing  the  water  may  fix  and  change  its  own  rates.  If  the  board  of 
supervisors  once  establishes  the  rates,  they  must  stand  for  not  less  than  one 
year,  when  they  may  be  changed  or  abrogated.  In  cities  and  towns,  there  is 
no  amount  fixed  by  law  that  must  be  returned  by  the  rates.  In  counties  the 
statute  provides  that  the  rates  must  be  so  fixed  as  to  return  not  less  than  six 
nor  more  than  eighteen  per  cent,  per  annum  on  the  value  of  the  plant.  In 
establishing  purely  domestic  rates  in  cities  and  towns,  the  question  of  water 
rights  and  the  effect  upon  the  rates  to  be  paid  for  the  acquisition  of  a  water 
right  by  a  consumer  from  the  company,  or  the  nature  and  general  effect  of 
such  water  rights,  does  not  arise.  But  in  fixing  rates  for  irrigation,  these 
questions  have  given  rise  to  much  controversy  and  contrariety  of  opinion. 
Attention  will  first  be  given  to  the  question  of  fixing  rates,  after  which  the 
question  of  water  rights,  the  power  of  the  company  to  sell  them,  and  the 
further  question  whether  the  price  for  a  water  right  or  the  annual  rates  to  be 
paid  for  the  water  can  be  fixed  or  controlled  by  the  contract  of  the  company 
and  its  consumers. 

(a)      Of  the  Fixing  of  Rates. 

Much  that  has  been  said  as  to  the  fixing  of  rates  by  city  and  town  authori- 
ties is  applicable,  also,  to  the  fixing  of  rates  for  the  county  by  the  board  of 
supervisors.  The  constitution.  Article  XIV,  is  applicable  in  both  cases,  but 
in  a  different  way.  In  case  of  cities  and  towns,  as  we  have  seen,  the  consti- 
tution itself  requires  that  the  rates  shall  be  fixed  in  February  of  each  year. 
So  far  as  it  applies  to  the  fixing  of  rates.  Section  2  of  the  article  of  the  consti- 
tution is  alone  applicable  to  rates  to  be  fixed  in  counties.  That  section  pro- 
vides : 

"The  right  to  collect  rates  or  compensation  for  the  use  of  water  supplied  to 
any  county,  city  and  county,  or  town,  or  the  inhabitants  thereof,  is  a  franchise, 
and  cannot  be  exercised  except  by  authority  of  and  in  the  manner  prescribed 
by  law." 

Const.  Cal,  Art.  XIV,  Sec.  2. 
Prior  to  the  adoption  of  the  constitution,  the  statute  of  1862,  above 
referred  to,  had  been  enacted  providing  for  the  fixing  of  the  rates  by  the 
companies  furnishing  the  water,  but  subject  to  regulation  by  boards  of  super- 
visors and  providing  that  the  rates  should  not  be  reduced  ''so  low  as  to  yield 
to  the  stockholders  less  than  one  and  one-half  per  cent,  per  month  iif>on  the 
capital  actually  invested." 

Stat.  1862,  p.  541,  Sec.  3. 
Later,  the  Civil  Code  was  enacted.  One  of  its  sections  provitles  tlirrt 
where  water  is  furnished  by  a  corporation  to  irrigate  lands  the  right  to  the 
flow  and  use  of  the  water  shall  remain  a  perpetual  easement  to  the  land  "a/ 
such  rates  and  terms  as  may  be  established  by  said  corporation  in  /pursuance 
of  lazv.' 

Civil  Code,  Sec.  552. 


144  History  of  the  Bench  and  Bar  of  California. 

Here  again  the  right  to  fix  the  rates  was  vested  in  the  corporation  fur- 
nishing the  water.  Subsequently,  in  1885,  a  statute  was  enacted  providing 
for  the  fixing  of  rates  by  boards  of  supervisors  and  establishing  a  course  of 
procedure. 

Stat.  1885,  p.  95. 

Section  i  of  this  Act  provides  that  the  use  of  water  is  a  public  use,  and 
the  right  to  collect  compensation  therefor  a  franchise,  as  provided  in  the 
constitution,  and  when  furnished  outside  of  cities  and  towns,  "shall  be  regu- 
lated and  controlled,  in  the  counties  of  this  State,  by  the  several  boards  of 
supervisors  thereof,  in  the  manner  prescribed  in  this  Act." 

Section  2  makes  it  the  duty  of  the  board  of  supervisors  to  fix  and  regulate 
maximum  rates  on  notice  and  petition  as  provided  in  the  next  section. 

Section  3  provides  for  a  petition  by  twenty-five  inhabitants  and  tax-payers 
for  the  fixing  of  the  rates  and  notice  of  not  less  than  four  weeks  of  the  hearing 
thereof. 

By  section  4  the  board  is  required,  on  the  hearing,  to  estimate  the  value 
of  the  property  of  the  company  actually  used  and  useful  in  supplying  the  water, 
and  also  its  annual  reasonable  expenses,  including  the  cost  of  repairs,  man- 
agement and  operating  such  works. 

Section  5  provides  that  the  board  may  fix  different  rates  for  different  pur- 
poses, such  as  mining,  irrigation,  manufactures  and  domestic  use,  but  that 
the  rates  for  each  purpose  shall  he  equal  and  uniform. 

It  is  further  provided  in  this  section  as  follows : — 

"Said  Boards  of  Supervisors,  in  fixing  such  rates,  shall,  as  near  as  may  be, 
so  adjust  them  that  the  net  annual  receipts  and  profits  thereof  to  the  said  per- 
sons, companies,  associations,  and  corporations  so  furnishing  such  water  to  such 
inhabitants  shall  be  not  less  than  six  nor  more  than  eighteen  per  cent  upon  the 
said  value  of  the  canals,  ditches,  flumes,  chutes,  and  all  other  property  actually 
used  and  useful  to  the  appropriation  and  furnishing  of  such  water  of  each  of  such 
persons,  companies,  associations,  and  corporations ;  but  in  estimating  such  net 
receipts  and  profits,  the  cost  of  any  extensions,  enlargements,  or  other  perma- 
nent improvements  of  such  water  rights  or  waterworks  shall  not  be  included 
as  part  of  the  said  expenses  of  management,  repairs,  and  operating  of  such 
works,  but  when  accomplished,  may  and  shall  be  included  in  the  present  cost 
and  cash  value  of  such  work.  In  fixing  said  rates,  within  the  limits  aforesaid, 
at  which  water  shall  be  so  furnished  as  to  each  of  such  persons,  companies,  asso- 
ciations, and  corporations,  each  of  said  Board  of  Supervisors  may  likewise  take 
into  estimation  any  and  all  other  facts,  circumstances,  and  conditions  pertinent 
thereto,  to  the  end  and  purpose  that  said  rates  shall  be  equal,  reasonable,  and 
just,  both  to  such  persons,  companies,  associations,  and  corporations,  and  to  said 
inhabitants." 

And  after  providing  that  the  rates,  when  so  fixed  by  the  board,  shall  be 
binding  and  conclusive  for  not  less  than  one  year  next  after  their  establish- 
micnt  and  until  established  anew  or  abrogated  by  the  board,  the  section  con- 
tains this  further  provision : 

"And  until  such  rates  shall  be  so  established,  or  after  they  shall  have  been 
abrogated  by  said  Board  of  Supervisors  as  in  this  act  provided,  the  actual  rates 


History  of  the  Bench  and  Bar  of  California.  145 

established  and  collected  by  each  of  the  persons,  companies,  associations  and  cor- 
porations now  furnishing  or  that  shall  hereafter  furnish  appropriated  waters 
for  sale,  rental,  or  distribution  to  the  inhabitants  of  any  of  the  counties  in  this 
State  shall  be  deemed  and  accepted  as  the  legally  established  rates  thereof." 

Section  6  of  the  Act  provides  for  the  estabhshment  anew  or  abrogation 
of  the  rates  fixed  by  the  board,  to  take  effect  not  less  than  one  year  next  after 
their  first  estabhshment,  and  that  this  may  be  brought  about  either  at  the 
instance  of  twenty-five  inhabitants,  as  provided  for  the  fixing  of  rates  in  the 
first  instance,  or  upon  the  petition  of  the  corporation  furnishing  the  water, 
and  upon  Hke  notice  as  provided  for  the  fixing  of  rates  originally;  and  it  is 
provided  that  all  water  rates  fixed  as  in  said  section  provided  shall  be  in  force 
and  effect  until  established  anew  or  abrogated  as  provided  in  the  Act. 

By  section  7,  it  is  required  that  a  record  be  made  of  the  establishment 
of  the  rates,  and  that  the  same  be  published  the  same  as  required  for  the 
publication  or  posting  of  the  petitions  and  notices. 

Section  8  provides  that  all  companies  or  persons  furnishing  water  for 
sale,  rental  or  distribution  shall  furnish  the  same  at  rates  not  exceeding  the 
established  rates  fixed  by  the  board. 

Section  9  provides  a  penalty  for  the  collection  of  a  higher  rate  than  that 
fixed  by  the  board  of  supervisors. 

Section  10  provides  that  every  corporation,  company  or  person  furnishing 
water  in  a  county  where  rates  have  been  so  fixed  may  be  compelled  to  supply 
the  water  at  such  rates  to  the  extent  of  the  actual  supply  of  such  appropriated 
waters  of  such  person,  company,  association  or  corporation  for  such  pur- 
poses; and  if  failure  shall  be  made  to  supply  the  water  on  demand  to  the 
extent  of  his  or  its  reasonable  ability  so  to  do,  the  company,  association  or 
person  is  made  liable  in  damages  to  the  extent  of  the  actual  injury  sustained 
by  the  person  or  parties  making  demand  for  the  water  and  tender  of  the  rates. 

Section  11  of  the  Act  confers  upon  the  company  the  right  to  condemn 
rights  of  way  for  carrying  the  water. 

Taking  the  provisions  of  the  constitution  that  the  right  to  collect  com- 
pensation for  water  is  a  franchise  to  be  exercised  as  prescribed  l)y  law.  this 
statute  of  1885  prescribes  the  manner  of  fixing  the  rates  and  fixes  the  rights 
and  obligations  of  the  corporation  supplying  the  water  and  its  consumers. 

Litigation  has  arisen  over  the  provisions  of  this  statute.  Tn  the  case  of 
Lanning  v.  Osborne,  76  Fed.  Rep.,  319.  the  complainant.  Lanning.  as  receiver 
of  the  San  Diego  Land  and  Town  Company,  gave  notice  to  the  consumers 
of  water  under  the  system  of  said  company  of  his  intention  to  increase  the 
rates  for  irrigation  from  $3.50  to  $7.00  per  acre.  The  consumers  denied  his 
right  to  increase  or  in  any  way  change  the  rates  already  fixed,  and  established 
by  the  company.  He  brought  an  action  in  the  United  States  Circuit  Court 
to  liave  his  right  to  increase  the  rate  established,  and  to  prevent  a  multiplicity 
of  suits  intended  to  compel  the  company  to  supply  the  water  at  the  old  rate. 
The  case  was  strongly  contested.     It  was  finally  held  by  Judge  Ross  that  until 


146  History  of  the  Bench  and  Bar  of  California. 

action  was  taken  by  the  board  of  supervisors  in  establishing  rates,  the  com- 
pany had  the  right  and  power,  under  the  statute  of  1885,  to  estabhsh  and 
re-estabhsh  its  own  rates ;  that  if  the  rates  fixed  by  the  company  were  unrea- 
sonable or  unsatisfactory  to  the  takers  of  water,  their  remedy  was  to  apply 
to  the  board  of  supervisors  to  fix  the  rates  as  provided  by  law,  and  that  the 
court  had  no  jurisdiction  to  inquire  into  the  reasonableness  of  the  rates  until 
action  taken  by  the  board  of  supervisors.  This  case  also  involved  other  im- 
portant questions  relating  to  water  rights  and  the  power  of  the  company  to 
deal  with  them,  which  will  be  considered  further  on.  The  case  was  appealed 
to  the  Supreme  Court  of  the  United  States,  and  the  conclusions  reached  by 
Judge  Ross,  above  stated,  were  by  that  court  affirmed. 

Osborne  v.  San  Diego  Land  and  Town  Co. — U.  S.  (not  yet  reported). 

So  it  mav  be  taken  as  the  settled  construction  of  our  State  constitution 
and  the  statute  of  1885,  passed  in  pursuance  of  it,  that  a  corporation  furnish- 
ing water  to  the  public  has  the  right  to  fix  and  change  its  own  annual  rates 
until  such  rates  are  fixed  by  the  board  of  supervisors,  as  prescribed  by  the 
statute,  and  that  the  only  remedy  of  consumers  taking  water  from  the  com- 
pany, if  the  rates  are  not  satisfactory,  is  to  apply  to  the  board  of  supervisors 
for  the  establishment  of  such  rates. 

In  fixing  rates  by  the  board  of  supervisors,  they  must  be  governed  by  the 
statute  which  provides  that  the  rates  must  be  so  fixed  "that  the  net  annual 
receipts  and  profits  thereof  shall  be  not  less  than  six  nor  more  than  eighteen 
per  cent,  upon  the  value  of  the  canals,  ditches,  flumes,  chutes,  and  all  other 
property  actually  used  and  useful  to  the  ap])ropriation  and  furnishing  of  such 
water." 

It  follows  that  when  a  court  is  called  upon  to  determine  whether  rates 
fixed  by  the  board  of  supervisors  are  reasonable  or  not,  the  standard  fixed 
by  the  statute  must  control,  and  if  the  rates  will  not  return  at  least  six  per 
cent,  net  on  the  value  of  the  plant,  they  are,  by  the  express  terms  of  the 
statute,  unreasonable. 

And,  doubtless,  it  will  he  held  in  this  case,  as  in  the  fixing  of  rates  in 
cities  and  towns,  that  the  present  value  of  the  plant  must  be  taken  as  the  basis 
upon  which  return  should  be  made. 

(b)      Of  the  Water  Right  and  the  Power  of  the  Company  to  Sell  the  Same. 

The  question  as  to  the  exact  right  or  ownership  acquired  by  an  appro- 
priator  of  water  for  sale,  rental  or  distribution,  under  the  provisions  of  our 
constitution,  has  not  been  definitely  settled  by  any  adjudicated  case.  The 
constitution  does  not  declare,  as  in  Colorado,  that  the  waters  of  flowing 
streams  belong  to  the  public.      It  declares: 

"The  use  of  all  water  now  appropriated,  or  that  may  hereafter  be  appro- 
priated for  sale,  rental,  or  distribution,  is  hereby  declared  to  be  a  public  use. 
and  subject  to  the  regulation  and  control  of  the  State  m  the  manner  provided 
by  law."  1 


History  of  the  Bench  and  Bar  of  California.  147 

Const,  Art.  XIV,  Sec.  i. 
And  further : 

"The  right  to  collect  rates  or  compensation  for  the  use  of  water  supplied 
to  any  county,  city  and  county,  or  town  or  the  inhabitants  thereof  is  a  franchise 
and  cannot  be  exercised  except  by  authority  of  and  in  the  manner  prescribed 
by  law." 

Const.,  Art.  XIV,  Sec.  2. 
The  statute  of  the  State  gives  the  right  of  appropriation.  That  such 
appropriation  may  be  made  by  a  corporation  or  individual  for  sale  or  rental 
to  others  is  expressly  recognized  by  the  constitution.  That  by  the  appropria- 
tion of  water  the  appropriator  becomes  the  owner  of  the  right  to  use  it  and  to 
sell  and  convey  that  right  to  another  has  been  the  undisputed  and  undoubted 
law  of  this  State  from  the  beginning.  Hence,  unless  the  constitution,  or  some 
statute  enacted  in  pursuance  of  it,  has  established  a  different  rule  in  respect 
of  appropriators  for  sale,  rental  or  distribution,  they  must  be  regarded  as 
having  become  the  owners  of  the  right  to  the  use  of  the  water  appropriated. 
But  there  is  this  difference  that  must  not  be  overlooked.  In  order  to  con- 
stitute a  complete  and  valid  appropriation,  two  things  must  concur,  viz.,  the 
diversion  of  the  water  from  the  stream  and  its  application  to  a  beneficial  use. 
In  the  case  of  an  appropriation  for  private  use,  the  diversion  is  made  by  and 
the  application  made  to  a  beneficial  use  by  the  same  person,  thereby  vesting 
in  him  the  complete  title  to  the  right  to  use  the  water.  This  is  simple  enough, 
and  presents  no  difficulties.  But  in  the  case  of  the  appropriation  for  use  by 
the  public,  the  diversion  is  made  by  the  corporation  intending  to  sell  and 
distribute  the  water,  which  is  one  of  the  acts  necessary  to  acquire  the  right 
to  the  use  of  the  water,  and  the  application  of  the  water  to  a  beneficial  use 
must  be  made  by  the  party  to  whom  the  water  is  furnished,  and,  if  furnished 
for  irrigation,  becomes  appurtenant  to  his  land,  and  belongs  to  him.  Or  the 
company  may  also  be  the  owner  of  land  and  may  apply  the  water  to  the  land  and 
afterwards  convey  both  the  land  and  the  water  right  to  a  third  party,  which, 
as  we  shall  see,  carries  with  it  the  obligation  of  the  company  to  supply  the 
water  by  and  through  its  system.  The  question  has  arisen,  uiuler  these 
circumstances,  whether  the  corporation  can  sell  to  another  the  right  to  the 
use  of  water  diverted  and  stored  by  it,  or  make  any  contract  in  respect  of 
such  water  right,  or  whether,  under  the  constitution  and  laws  of  this  State, 
the  company  must  supply  the  water  on  demand  and  upon  payment  or.  tender 
of  the  annual  rates,  so-called,  fixed  as  provided  by  law,  without  other  con- 
sideration. There  is  great  diversity  of  opinion  on  this  subject.  It  is  an 
interesting  and  important  question. 

Section  552  of  the  Civil  Code  is  as  follows: 

"Whenever  any  corporation,  organized  under  the  laws  of  this  State,  fur- 
nishes water  to  irrigate  lands  which  said  corporation  has  sold,  the  right  to  the 
flow  and  use  of  said  water  is  and  shall  remain  a  perpetual  casement  to  the  land 
so  sold,  at  such  rates  and  terms  as  may  be  establislied  hy  said  corporation  in 
pursuance  of   law.      And    whenever   any   person    who   is   cultivating   laufl,   on    the 


148  History  of  the  Bench  and  Bar  of  California. 

line  and  within  the  flow  of  any  ditch  owned  by  such  corporation,  has  been 
furnished  water  by  it,  with  which  to  irrigate  his  land,  such  person  shall  be 
entitled  to  the  continued  use  of  said  water,  upon  the  same  terms  as  those  who 
have  purchased  their  land  of  the  corporation." 

See  Price  v.  Riverside  L.  &  T.  Co.,  56  Cal,  431,  441. 
This  section  defines  a  water  right  such  as  a  company  deaHng  with  water 
may  vest  in  a  consumer  to  whom  it  supplies  water  for  irrigation.  It  is  the 
right  to  "the  perpetual  easement  of  the  flow  of  the  water  at  such  rates  and 
terms  as  may  l)e  established  by  said  corporation  in  pursuance  of  law."  This 
right  has  not  been  taken  away  or  changed  by  the  constitution,  subsequently 
adopted,  or  by  any  law  enacted  in  pursuance  of  it,  except  that  the  right  of 
the  State  to  regulate  the  sale  and  distribution  of  the  water  is  declared  by  the 
constitution,  and  the  manner  of  fixing  the  rates  and  compensation  at  which 
the  water  shall  be  furnished  has  been  prescribed  by  the  statute  of  1885. 
Therefore,  the  only  change  made  is  that  now  the  board  of  supervisors  may, 
on  petition  of  twenty-five  citizens,  fix  and  establish  the  rates  to  be  charged 
for  the  water  furnished,  while,  under  section  552,  the  right  to  fix  the  rates 
was  in  the  company.  And,  as  we  have  shown,  the  right  to  fix  its  own  rates 
still  exists  in  the  company,  until  action  is  taken  by  the  board  of  supervisors 
as  provided  by  law. 

Stat.  1885,  p.  96,  Sec.  5; 

Lanning  v.  Osborne,  76  Fed  Rep.,  319; 

Osborne  v.  San  Diego  Land  and  Town  Co. — U.  S. —  (May  14.  1900, 
unreported.) 
But  the  question  remains,  has  the  company  such  a  water  right  in  the 
water  it  has  acquired  the  right  to  divert  and  sell,  as  it  may  and  has  the 
>gal  right  to  sell  to  one  owning  land  under  its  system.  And  here  we  must 
distinguish  between  a  water  right,  or  the  preferred  right  to  the  use  of  the 
water,  and  the  annual  rates  to  be  paid  for  the  water  used.  This  distinction 
is  made  by  section  552,  which  provides  how  the  preferred  right  or  easement 
of  the  right  to  the  use  of  the  water  may  be  vested  in  the  land-owner  and 
that  his  right  is  subject  to  his  payment  of  the  rates  fixed  by  the  company 
as  provided  by  law.  The  distinction  has  been  recognized,  practically,  by  all 
water  companies,  and  parties  dealing  with  them,  by  contracts  made  between 
them  for  such  water  rights ;  millions  of  dollars  have  been  paid,  and  agreed 
to  be  paid,  for  water  rights  of  this  kind,  and  thousands  of  acres  of  land 
have  obtained  this  valuable  right  by  such  contracts  voluntarily,  gladly,  bought 
and  paid  for.  The  water  right  made  appurtenant  to  land  in  the  southern 
part  of  the  State  doubles,  many  times  quadruples,  the  value  of  the  land,  or 
even  more.  The  mere  vested  right  to  the  use  of  the  water  at  the  rates  fixed 
as  provided  by  law  is  in  almost  all  cases  worth  much  more  than  the  full  value 
of  the  land  before  the  right  was  obtained.  In  most  cases,  this  value  is 
added  to  the  lands  by  the  expenditure  of  large  sums  of  money  in  diverting 
and  storing  the  storm  waters  of  the  winter,  and  preparing  the  facilities  for 


History  of  the  Bench  and  Bar  of  California.  149 

distributing  and  supplying  it  to  the  lands  within  its  reach.  If  the  company 
owns  land,  and,  after  supplying  the  water  to  it,  sells  it,  it  charges  and  receives 
a  largely  enhanced  price  for  the  land.  This  is  nothing  more  than  selling  a 
water  right  with  the  land.  Tf  it  supplies  water  to  the  lands  of  another,  it 
enhances  the  value  of  his  land  in  the  same  way,  and  to  precisely  the  same 
extent.  So  the  water  right  is  valuable  property.  When  the  land  owner 
acquires  it,  he  can,  as  all  authorities  agree,  sell  his  water  right  as  he  can  sell 
his  land.  This  being  so,  why  may  not  the  company  that  has  brought  the  water 
right  into  existence,  sell  the  same  water  right  to  him?  The  Supreme  Court 
of  this  State  has  recognized  the  right  of  companies  of  this  kind  to  contract  and 
sell  such  water  rights  and  collect  a  consideration  therefor,  by  enforcing  such 
contracts. 

Fresno  Canal  and  Irr.  Co.  v.  Dunbar,  80  Cal.  530; 
Fresno  Canal  and  Irr.  Co.  v.  Rowell,  80  Cal.  114; 
Clyne  v.  Benicia  Water  Co.,  100  Cal.  310; 
San  Diego  Flume- Co.  v.  Chase,  87  Cal.  561  ; 
Balfour  v.  Fresno  Canal  Co.,  109  Cal.  221 ; 
Fairbanks  v.  Rollins,  54  Pac.  Rep.  79. 
Indeed,  the  validity  of  such  contracts  seems  never  to  have  been  doubted  or 
questioned  until  certain  decisions  were  rendered  by  Judge  Ross,  of  the  Circuit 
Court  of  the  United  States,  which  we  now  proceed  to  notice.     In  San  Diego 
Land  and  Town  Company  v.  National  City,  74  Fed.  Rep.  79,  the  Company 
was  seeking  to  set  aside  an  ordinance  fixing  rates  for  National  City  on  the 
ground  that  the  rates  were  unreasonable.  Amongst  other  things,  it  was  claimed 
by  the  company  that  the  board  of  trustees  should,  in  fixing  the  rates,  have 
allowed  a  reasonable  sum  to  be  charged  for  a  water  right,   for  irrigation, 
because,  if  it  once  voluntarily  furnished  water  to  lands,  it  thereby,  by  force  of 
Section  552,  attached  to  said  land,  as  a  perpetual  easement,  the  right  to  the 
flow  and  use  of  the  water;  and  if  compelled  by  the  ordinance  to  so  attach 
the  easement  to  the  land,  it  was  therd^y  compelled  to  give  away  such  water 
right  or  easement.     Judge  Ross,  in  presenting  his  views  on  this  important 
question,  expressed  himself  with  his  accustomed   force  and  clearness.      He 
says,  (p.  86)  : 

"One  of  the  objects  of  the  present  suit  is  to  obtain  a  decree  estabishing 
the  validity  of  that  claim  of  the  complainant  to  exact  a  sum  of  money,  in  addi- 
tion to  an  annual  charge,  as  a  condition  on  which  alone  the  complainant  will 
furnish  consumers  of  water  for  irrigation  purposes,  other  than  to  those  it  had 
furnished  it  for  such  purposes  prior  to  December  18,  1892.  And  the  contest 
that  arose  between  the  consumers  and  the  company  over  this  charge  for  a 
so-called  'water  right,'  and  the  refusal  of  the  municipal  atithorities  of  National 
City  to  allow  that  charge  in  respect  to  acreage  property  within  the  city  limits, 
is  one  of  the  principal  causes  of  the  present  suit.  It  does  not  change  the  essence 
of  the  thing  for  which  the  complai4iant  demands  a  sum  of  money  to  call  it  a 
'water  right.'  or  to  say,  as  it  docs,  Ihat  the  charge  is  imposed  for  the  purpose 
of  reimbursing  complainant  in  part  for  the  outlay  to  which  it  has  been  sub- 
jected. It  is  denianding  a  sum  of  money  for  doing  what  the  constitution  and 
laws  of  California  authorized  it  to  appropriate  water  within  its  limits,  conferred 


150  History  of  the  Bench  and  Bar  of  California. 

upon  it  the  great  power  of  eminent  domain,  and  the  franchise  to  distribute  and 
sell  the  water  so  appropriated,  not  only  to  those  needing  it  for  purposes  of  irri- 
gation, but  also  to  the  cities  and  towns,  and  their  inhabitants,  within  its  flow, 
for  which  it  was  given  the  right  to  charge  rates  to  be  established  by  law,  and 
nothing  else.  No  authority  can  anywhere  be  found  for  any  charge  for  the  so- 
called  'water  right.'  The  State  permitted  the  water  in  question  to  be  appropri- 
ated for  distribution  and  sale  for  purposes  of  irrigation,  and  for  domestic  and 
other  beneficial  uses;  conferring  upon  the  appropriator  the  great  powers  men- 
tioned, and  compensating  it  for  its  outlay  by  the  fixed  annual  rates.  The  com- 
plainant as  not  obliged  to  accept  the  benefits  conferred  by  the  constitution 
and  laws  of  California,  it  accepted  them  charged  with  the  corresponding  bur- 
den. Appropriating,  as  it  did,  the  water  in  question,  for  distribution  and  sale, 
it  thereupon  became,  according  to  the  express  declaration  of  the  constitution, 
charged  with  a  public  use.  'Whenever,'  said  the  Supreme  Court  of  California  in 
McCrary  v.  Beaudry,  67  Cal.  120,  121,  7  Pac.  264,  'water  is  appropriated  for  dis- 
tribution and  sale,  the  public  has  a  right  to  use  it ;  that  is,  each  member  of  the 
community,  by  paying  the  rate  fixed  for  supplying  it,  has  a  right  to  use  a  reason- 
able quantity  of  it  in  a  reasonable  manner.  Water  appropriated  for  distribu- 
tion and  sale  is  ipso  facto  devoted  to  a  public  use,  which  is  inconsistent  with  the 
right  of  the  person  so  appropriating  it  to  exercise  the  same  control  over  it  that 
he  might  have  exercised  if  he  had  never  so  appropriated  it.'  To  the  same  effect 
is  People  v.  Stephens,  62  Cal.  209;  Price  v.  Irrigating  Co.,  56  Cal.  431." 

But,  after  all,  the  learned  Judge  begs  the  question.  He  assumes  the  very 
matter  in  controversy,  viz.  :  that  the  State  granted  to  the  corporation  the 
privilege  of  appropriating  the  waters  of  its  streams,  and  of  resorting  to  the 
right  of  eminent  domain,  if  necessary,  to  carry  out  its  objects,  on  the  condi- 
tion that  it  accept  the  aiinual  rates  fixed  for  zuater  supplied  and  waived  all  right 
to  charge  more,  either  for  the  water  right  or  in  any  other  zvay.  If  Judge 
Ross  is  right  in  his  premises,  his  conclusion  is  unquestionably  right  and 
his  reasoning  unanswerable.  But  is  he  right  in  his  assumption  that  the 
constitution  takes  away  from  the  appropriator  for  sale,  rental  and  dis- 
tribution, the  right  to  sell  the  water  right  it  has  appropriated?  Confes- 
sedly, it  is  a  valuable  right,  and  one  that,  if  the  hands  of  a  private  indi- 
vidual, is  the  subject  of  sale  and  transfer.  Is  there  anything  in  the  con- 
stitution that  declares,  expressly  or  by  implication,  that  the  right  is  any 
the  less  valuable,  or  less  the  subject  of  sale,  because  the  appropriation 
was  made  for  sale,  rental  and  distribution?  The  opinion  does  not  say 
It  is  said  :  "No  authority  can  anywhere  be  found  for  any  charge  for  the 
so-called  'water  right.'  ''  This,  it  is  believed,  was  a  mistake.  The  decisions 
of  the  State  Supreme  Court  above  cited,  are  authority  for  a  charge  for 
the  so-called  water  right.  But,  after  all,  that  is  not  the  question.  No  one 
will  presume  to  deny,  at  the  present  day,  that  this  so-called  water  right  is 
valuable  property.  Unless  there  is  some  law  against  the  sale  of  property, 
it  is,  of  course,  saleable.  Therefore,  the  inquiry  should  have  been,  not  whether 
there  was  any  authority  to  be  found  for  a  charge  for  such  property,  but 
whether  there  was  any  law  or  decided  case  denying  to  such  a  company  the 
power  to  sell,  for  a  consideration,  its  own  property.  If  not,  its  rights  must 
be  the  same,  in  this  respect,  as  those  of  other  property  owners. 

This  case  was  appealed  to  the  Supreme  Court  of  the  United  States,  but 


i 


History  of  the  Bench  and  Bar  of  California.  151 

this  question  was  not  decided  by  that  Court,  it  being  held  that  a  decision  of 
the  question  was  not  necessary  to  a  decision  of  the  case.    The  Court  said  : 

"One  of  the  questions  pressed  upon  our  consideration  is  whether  the  ordi- 
nance of  the  city  should  have  expressly  allowed  the  appellant  to  charge  for  what 
is  called  a  'water  right.'  That  right,  as  defined  by  appellant's  counsel,  is  one  'to 
the  continued  and  perpetual  use  of  the  water  upon  the  land  to  which  it  has  been 
once  supplied  upon  payment  of  rates  therefor  established  by  the  company.'  In 
the  opinion  of  the  Circuit  Court  it  is  said  that  'no  authority  can  anywhere  be  found 
for  any  charge  for  the  so-called  'water  right.'  This  view  is  controverted  by  appel- 
lant, and  cases  are  cited  which,  it  is  contended,  show  that  the  broad  declaration  of 
the  Circuit  Court  cannot  be  sustained.  Fresno  Canal  &  Irrig.  Co.  v.  Rowell, 
8d  Cal.  114;  Fresno  Canal  &  Irrig.  Co.  v.  Dunbar,  80  Cal.  530;  San  Diego  Flume 
Co.  v.  Chase,  87  Cal.  561;  Clyne  v.  Benicia  Water  Co.,  100  Cal.  310;  San  Diego 
Flume  Co.  v.  Souther,   (C.  C.  A.),  90  Fed.  Rep.  164. 

We  are  of  opinion  that  it  is  not  necessary  to  the  determination  of  the  pres- 
ent case  that  this  question  should  be  decided.  We  are  dealing  here  with  an  ordi- 
nance fixing  rates  or  compensation  to  be  collected  within  a  given  year,  for  the 
use  of  water  supplied  to  a  city  and  its  inhabitants  or  to  any  corporation,  com- 
pany, or  person  doing  business  or  using  water  within  the  limits  of  that  city. 
In  our  judgment  the  defendant  correctly  says  in  its  answer  that  the  laws  of  the 
State  have  not  conferred  upon  it  or  its  board  of  trustees  the  power  to  prescribe, 
by  ordinance  or  otherwise,  that  the  purchase  and  payment  for  so-called  'water 
rights'  should  be  a  condition  to  the  exercise  of  the  right  of  consumers  to  use 
any  water  appropriated  for  irrigation  or  aflFected  with  a  public  use. 

The  only  issue  properly  to  be  determined  by  a  final  decree  in  this  cause  is 
whether  the  ordinance  in  question  fixing  rates  for  water  supplied  for  use  within 
the  city  is  to  be  stricken  down  as  confiscatory  by  its  necessary  operation,  and 
therefore  in  violation  of  the  constitution  of  the  United  States.  If  the  ordinance, 
considered  in  itself,  and  as  applicable  to  water  used  within  the  city,  is  not  open 
to  any  such  objection,  that  disposes  of  the  case,  so  far  as  any  rights  of  the 
appellant  may  be  aflfected  by  the  action  of  the  defendant.  The  appellant  asks, 
among  other  things,  that  it  be  decreed  to  be  entitled  to  charge  and  collect  for 
'water  rights'  at  reasonable  rates  as  a  condition  upon  which  it  will  furnish 
water  for  the  purposes  of  irrigation,  notwithstanding  the  rates  fixed  by  the 
defendant's  board  of  trustees,  for  water  sold  and  furnished  within  the  city. 
That  is  a  question  wholly  apart  from  the  inquiry  as  to  the  validity  under  the 
constitution  and  laws  of  the  State.  Counsel  for  appellant,  while  insisting  that 
the  Circuit  Court  erred  in  saying  that  there  was  no  such  thing  as  a  'water 
right,'  says :  'The  constitution  of  the  State  has  nothing  whatever  to  do  with 
a  water  right  or  the  price  that  shall  be  paid  for  it.  It  simply  provides  for  fix- 
ing the  annual  rental  to  be  paid  for  the  water  furnished  and  used.  When  one 
obtains  his  water  right  by  purcha.se  or  otherwise,  he  has  a  right  to  demand  that 
the  water  shall  be  furnished  to  his  lands  at  the  price  fixed,  as  provided  by  law, 
and  that  the  company  shall  exact  no  more.  Rut  he  must  first  acquire  the  right 
to  have  the  water  on  such  terms.  Whether  in  fixing  the  annual  rates  to  be 
charged,  the  body  authorized  to  fix  them  can  take  into  account  the  amount  that 
has  been  received  by  the  company  for  water  rights,  is  another  question,  and  one 
that  is  not  presented  in  this  case.  Nor  is  any  question  raised  as  to  what  would 
be  a  reasonable  amount  to  exact  for  a  water  right,  or  whether  the  courts  can 
interfere  to  determine  what  is  a  reasonable  amount  to  charge  therefor.' 

These  reasons  are  sufficient  to  sustain  the  conclusion  already  announced, 
namely,  that  the  present  case  docs  not  require  or  admit  of  a  decree  declaring 
that  the  appellant  may,  in  addition  to  the  rates  established  by  the  ordinance, 
chajge  for  what  is  called  a  'water  right'  as  defined  by  it.  It  will  be  time  enough 
to  decide   such   a  point  when   a   case   actually  arises  between   the  appellant  and 


152  History  of  the  Bench  and  Bar  of  California. 

some  person  or  corporation  involving  the  question  whether  the  former  may 
require,  as  a  condition  of  its  furnishing  water  within  the  limits  of  the  city 
on  the  terms  prescribed  by  the  defendant's  ordinance,  that  it  be  also  paid 
for  what  is  called  a  water  right.'  " 

San  Diego  Land  and  Town  Co.  v.  National  City,  174  U.  S.  739,  756. 

It  will  be  seen  that  the  question  in  this  case  was  whether  a  water  company 
could  exact  a  payment  for  a  water  right,  as  a  condition  upon  which  it  would 
supply  water,  and  against  the  will  of  the  party  demanding  the  water,  and  not 
whether  the  company  had  the  legal  right  to  contract  for  the  sale  of  the  water 
right  and  whether  the  parties,  having  voluntarily  contracted,  are  legally  bound 
by  such  contract. 

But  the  question  has  been  before  Judge  Ross  in  later  cases,  involving, 
directly,  the  question  whether  any  such  contract  can  be  made,  and  he  has  held 
in  unqualified  terms  that  no  such  contract  can  be  legally  made. 

Lanning  v.  Osborne,  76  Fed.  Rep.  319,  was  one  of  these  cases.  This  case 
involved  the  right  of  a  water  company,  or  its  receiver,  to  fix  its  own  rates 
in  the  absence  of  action  by  the  board  of  supervisors.  In  that  connection 
it  was  considered  above.  But  the  question  of  the  effect  of  contracts  for  the 
sale  of  water  rights  was  raised  and  it  was  decided  that  all  contracts  of  that 
kind  were  void.  The  question  was  fully  and  ably  treated  in  the  opinion.  It 
is  said  in  the  course  of  the  opinion  that  two  of  the  cases  decided  by  the  State 
Supreme  Court  as  recognizing  the  validity  of  such  contracts  could  not  be 
so  construed  for  the  reason  that  it  did  not  appear  in  either  of  the  cases  that  the 
water  the  company  undertook  to  sell  was  appropriated  under  or  subject  to 
the  constitution  and  laws  relating  to  water  appropriated  for  sale,  rental  or 
distribution.  In  this  the  learned  Judge  was  in  error.  In  the  case  of  Fresno 
Canal  and  Irr.  Co.  v.  Dunbar,  80  Cal.  530,  it  was  said,  in  the  beginning  of 
the  opinion : 

"Tlie  respondent,  the  plaintiff  in  the  court  below,  being  a  corporation  en- 
gaged in  diverting  and  supplying  water  for  irrigation,  entered  into  a  contract 
with  one  Roeding,  who  was  then  the  owner  of  a  certain  tract  of  land,  by  which 
the  respondent  sold  to  said  Roeding,  for  the  sum  of  twelve  hundred  dollars,  a 
water  right  for  said  real  estate,  and  in  and  by  said  contract  'grants,  bargains, 
sells  and  conveys  to  the  party  of  the  second  part,  from  the  main  canal  of  the 
party  of  the  first  part,  or  from  a  branch  thereof,  all  the  water  that  may  be 
required,  not  exceeding  at  any  time  four  cubic  feet  per  second,  for  the  purpose 
of  irrigating  said  lands.' " 

This  showed  clearly  that  the  company  was  dealing  with  water  in  such  way 
as  to  bring  it  within  the  provisions  of  the  constitution  and  laws  referred  to. 
But,  if  there  were  any  doubt  as  to  these  cases,  there  can  be  none  that  some  of 
the  other  cases  decided  by  the  State  Court,  and  which  were  not  then  brought 
to  the  attention  of  Judge  Ross,  do  show  on  their  face  that  the  court  under- 
stood, perfectly,  that  it  was  dealing  with  a  contract  for  a  water  right  made 
by  a  company  that  had  appropriated  it  for  sale,  rental  and  distribution,  and  so 
amenable  to  the  provisions  of  the  constitution.  These  cases  have  been  cited 
above.     It  should  be  said,  however,  in  justice  to  Judge  Ross,  that  these  later 


I 


History  of  the  Bench  and  Bar  of  California.  153 

cases  were  not  called  to  his  attention,  and  further,  that  in  none  of  the  cases 
was  the  question  directly  raised  as  to  the  validity  of  such  contracts  or  the 
power  of  a  company  appropriating  water  for  sale,  rental  or  distribution  to 
make  such  contracts.  Indeed,  it  may  be  said  that  up  to  the  first  decision 
rendered  by  Judge  Ross,  declaring  such  contracts  to  be  invalid,  no  question 
of  their  validity  had  ever  been  suggested  in  any  proceeding  in  court,  and 
their  validity  was  generally,  if  not  universally,  recognized  and  acted  upon. 
But,  in  the  case  under  consideration,  the  learned  Judge  supported  his  views  by 
quotations  from  decided  cases  in  Colorado,  notably,  Wheeler  v.  Irrigation 
Co.,  17  Pac.  Rep.  487.  And  the  authorities  cited  fully  sustain  the  conclusion 
reached  by  him,  if  our  constitution  and  laws  relating  to  the  appropriation  of 
the  waters  of  running  streams,  are  the  same  in  legal  effect  as  those  of  Col- 
orado. But  they  differ  very  materially — so  much  so,  that  it  is  believed  that  if 
the  cases  cited  are  correctly  decided,  they  are  not  in  point  in  this  State.  The 
Colorado  constitution  provides : 

"The  water  of  everj'  natural  stream  not  heretofore  appropriated  within 
the  State  of  Colorado  is  hereby  declared  to  be  the  property  of  the  public,  and 
the  same  is  dedicated  to  the  use  of  the  people  of  the  state,  subject  to  appropria- 
tion as  hereinafter  provided." 

Art.  XVI,  Sec.  5. 
There  is  an  obvious  and  material  difference  between  that  provision  and 
the  one  in  our  constitution  relating  to  the  same  subject.  Our  constitution  does 
not  declare  the  waters  of  natural  streams  to  belong  to  the  public  or  dedicate 
the  same  to  the  use  of  the  public.  When  the  constitution  was  adopted,  the 
code  of  this  state  authorized  the  appropriation  of  the  waters  of  all  natural 
streams  without  limit,  except  that  it  must  be  for  a  useful  purpose.  This  right 
was  in  no  way  interfered  with  by  the  constitution,  except  that  it  provides 
that  when  appropriated  for  sale,  rental,  or  distribution,  it  is  a  public  use,  and 
subject  to  state  regulation  and  control.  That  is  to  say,  when  water  is  appro- 
priated for  such  purposes,  the  State  may  regulate  and  control  the  manner 
of  supplying  the  water  and  the  price  to  be  charged  for  it.  With  this  single 
limitation,  the  ownership  and  interest  in  the  water  is  the  same,  as  the  result 
of  an  appropriation  of  it,  as  that  of  any  other  appropriator.  The  State  can  • 
no  more  interfere  with  or  deprive  such  an  appropriator  of  water  or  its  right  to 
the  use  of  it,  further  than  to  exercise  a  proper  regulation  and  control  over  its 
use  in  supplying  the  water  to  others,  than  it  can  in  case  of  an  appropriation 
for  private  use.  It  is  upon  this  very  ground  that  it  has  been  uniformly  held 
that  to  impose  what  the  court  sometimes  call  confiscatory  rates  is  a  violation  of 
the  provision  of  the  constitution  of  the  United  States,  against  taking  property 
without  due  process  of  law  or  just  compensation.  Such  decisions  can  rest 
only  on  the  acknowledgment  of  ownersliip  in  the  company  dealing  with  the 
water.  But  it  is  enough  to  say  that  our  constitution  manifests  no  intention  or 
purpose  of  taking  away  or  limiting  the  ownership  in  the  water  or  to  do  more 
than  preserve  to  the  State  the  right  to  regulate  and  control   its  use.     And 


154  History  of  the  Bench  and  Bar  of  California. 

this  is  because  it  is  a  "public  use."  But  it  was  as  much  a  pubHc  use  before  the 
adoption  of  the  constitution  as  it  is  now.  The  constitution  simply  declares 
what  was  the  law  before.  It  is  a  public  use,  the  same  as  the  exercise  of  its 
franchise  to  carry  passengers  and  freight,  by  a  railroad  company,  is  a  public 
use.  And  the  right  to  regulate  and  control  its  use  of  such  rights  is  the  same  f| 
in  one  case  as  in  the  other,  and  for  precisely  the  same  reason,  and  on  the  same 
principle.  And  who  would  say  that  because  a  railroad  company  is  exercising 
a  public  use.  its  railroad  or  rolling  stock  or  its  earnings  are  public  property, 
and  belong  to  the  people?  The  effect  of  the  Colorado  constitution,  as  com- 
pared with  one  like  our  own,  was  considered  by  the  Supreme  Court  of  Idaho 
in  Willerding  v.  Green,  45  Pac.  Rep.  134.  in  which  it  was  said  : 

"The  marked  distinction  between  the  provisions  of  the  constitution  of  Colo- 
rado and  that  of  Idaho  will  be  apparent  upon  a  very  slight  inspection  of  the 
two.  The  Colorado  constitution  is  prospective.  It  makes  provision  and  lays 
down  rules  that  'The  water  of  every  natural  stream  not  heretofore  appropri- 
ated w'ithin  the  State  of  Colorado,  is  hereby  declared  to  be  the  property  of  the 
public,'  etc.  Prior  to  the  adoption  of  this  constitutional  provision,  the  right 
of  private  persons  to  acquire  property  in  natural  streams  through  appropria- 
tion had  been  recognized  in  Colorado,  as  it  had  been  throughout  the  Pacific 
coast;  but  the  character  of  this  right  was  changed  by  the  constitutional  pro- 
vision above  quoted,  and  thereafter  the  water  of  such  streams  became  and  was 
'the  property  of  the  public'  Compare  section  5  of  article  16  of  the  constitution 
of  Colorado  with  section  i  of  article  15  of  the  Idaho  constitution,  which  is  as 
follows :  'The  use  of  all  waters  now  appropriated,  or  that  may  hereafter  be  ap- 
propriated for  sale,  rental,  or  distribution,  also  of  all  water  originally  appropri- 
ated for  private  use,  but  which  after  such  appropriation  has  heretofore  been, 
or  may  hereafter  be  sold,  rented  or  distributed,  is  hereby  declared  to  be  a  public 
use,  and  subject  to  the  regulation  and  control  of  the  State  in  the  manner  pre- 
scribed by  law.'  The  distinction  between  the  two  provisions,  it  seems  to  me,  is 
too  palpable  to  require  elucidation  or  warrant  discussion.  The  Colorado  con- 
stitutional provision  recognizes  the  previous  existence  of  private  property  rights 
in  the  water  of  natural  streams,  but  prohibits  the  acquisition  of  such  rights  in  the 
future.  The  Idaho  constitution  does  not  pretend  or  assume  to  control  or  inter- 
fere with  private  property  rights  in  such  waters,  but  declares  the  use  of  all 
such  waters,  whether  theretofore  or  thereafter  appropriated,  a  public  use,  and 
under  the  control  of  the  State.  The  doctrine  of  the  Colorado  court,  that  the 
canal  or  ditch  owner  is  a  mere  'common  carrier,'  could  not,  certainly,  be  predi- 
cated upon  the  provisions  of  the  Idaho  constitution.  That  it  was  the  purpose 
and  intention  of  the  Idaho  constitution  to  deal  only  with  the  'use'  of  water,  and 
not  with  the  property  rights  of  appropriators  therein,  is.  I  think,  further  evi- 
denced by  the  including  within  its  provisions  'all  water  originally  appropriated 
for  private  use  but  which  after  such  appropriation  has  heretofore  been,  or  may 
hereafter  be  sold,  rented,  or  distributed.'  Tlie  sale,  renting,  and  distributing  of 
the  water  is  a  dedication,  and  brings  its  use  under  the  control  of  the  State,  but 
it  in  no  sense  destroys  or  abrogates  the  property  rights  of  the  appropriator  there- 
in." 

And  this  language  was  used  in  commenting  upon  \\'heeler  v.  Irrigation 
Company,  cited  by  Judge  Ross  as  supporting  his  view. 

It  would  seem  from  what  has  been  said  that  there  is  nothing  in  our  consti- 
tution, as  there  is  in  the  constitution  of  Colorado,  that  affects  the  ownership  or 
rights  of  a  water  company  in,  or  prevents  it  from  contracting  for,  the  sale  of 


History  of  the  Bench  and  Bar  of  California.  155 

a  water  right.  But  this  does  not  wholly  dispose  of  the  question.  The  consti- 
tution does  declare  the  use  of  the  water  to  be  a  public  use,  and  that  the  right 
to  collect  rates  or  compensation  for  the  use  of  the  water  is  a  franchise,  and 
"cannot  he  exercised  except  by  authority  of  and  in  the  manner  prescribed  by 
law."  Obviously,  the  constitution  does  not,  itself,  take  away  the  right  of 
the  company  to  contract  for  the  sale  of  a  water  right.  But  it  is  just  as  obvious 
that  it  does  vest  the  power  to  do  so  in  the  legislature.  And  if  the  legislature 
has  done  this  thing,  it  is  just  as  binding  as  if  it  had  been  done  by  the  con^ 
stitution. 

We  shall  see,  when  we  come  to  consider  the  question  of  annual  rate.s,  that 
the  legislature  has  taken  away  the  power  of  the  company  to  fix  such  rates  by 
contract.  And  unless  a  distinction  can  be  made  between  payment  for  a  water 
right  and  the  payment  of  annual  rates  for  water  used,  I  am  firmly  convinced 
that  no  charge  can  be  legally  made  for  such  right.  If,  in  other  words,  the 
rate  fixed  as  provided  by  law,  whether  by  the  company  or  by  the  board  of 
supervisors,  is  the  only  charge  that  can  be  made,  then  it  is  manifest  that  no 
charge  of  a  different  sum  can  be  made  in  advance  of  supplying  the  water  for 
the  preferred  right  to  its  use,  or  the  water  right.  But  here  the  writer  is  not 
in  accord  with  other  lawyers  in  this  State.  As  a  rule,  lawyers  take  one  of  two 
grounds,  viz. :  that  the  whole  matter  of  compensation  is  open  to  contract  be- 
tween the  parties  concerned,  both  for  water  rights  and  annual  rates,  or  that 
no  valid  contract  can  be  made  for  compensation  or  rates  for  either.  The  effort 
will  be  made,  further  along,  to  show  that  the  first  of  these  positions  cannot  by 
any  possibility  be  maintained.  In  this  connection,  reasons  will  be  given  why 
the  second  is  equally  erroneous. 

The  legislature  has  by  the  statute  of  1885  provided  how  "rates"  shall  be 
established. 

Stat.  1885,  p.  95. 

It  will  be  seen  that  it  is  confined  to  the  fixing  n\  "maximum  rates.*'  Is 
the  preferred  and  perpetual  right  to  have  the  water  at  the  rates  so  fixed  prop- 
erty, and  subject  to  sale?  If  it  is,  there  is  no  law  in  this  State  to  prevent  such 
sale.  That  it  has  been  regarded  in  practice  as  a  valuable  property  right  and 
made  the  subject  of  barter  and  sale,  no  one  will  presume  to  deny.  That  it 
is  regarded  as  a  valuable  right  by  the  law-making  powers  of  the  State  is  evi- 
denced by  the  fact  that  it  is  secured  to  the  land  owners  perpetually  by  section 
552  of  the  Civil  Code,  and  is  made  more  valuable  by  the  provisions  of  the 
constitution,  and  of  the  statute  of  1885,  by  which  the  owner  of  the  right  is 
protected  from  the  imposition  by  the  company  of  unreasonable  rates. 

Now,  let  us  see  by  the  actual  experience  oi  the  comi)any  in  dealing  with 
water,  whether  this  water  right  is  (M"  is  not  a  valuable  and  salable  commodity. 
We  will  take  the  case  of  the  San  Diego  Land  .md  Town  Company,  (ho  party 
interested  in  the  litigation  in  which  the  decisions  of  Judge  Ross  are  rendered,  as 
an  example  and  illustration.  That  company  was  the  owner  of  a  large  body  of 
land  in  San  Diego  countv,  known  as  the  National  Ranch.     It  was  what  is 


156  History  of  the  Bench  and  Bar  of  California. 

known  in  this  semi-arid  region  as  "dry"  land ;  that  is,  crops  and  fruit  could  not 
be  grown  upon  it  without  irrigation.  This  dry  land  w^as  w^orth  from  twenty- 
five  to  fifty  dollars  an  acre.  The  company  appropriated  the  waters  of  the  Sweet 
Water  River  and  constructed  a  dam,  reservoir  and  distributing  system,  at  a 
cost  of  something  over  a  million  dollars,  and  connected  the  system  with  its 
own  and  other  lands.  It  sold  the  land,  with  water,  for  three  hundred  dollars 
an  acre  and  upwards,  and  it  was  easily  worth  that  sum.  Without  water  it 
was  worth  fifty  dollars.  Now,  what  was  it  that  added  two  hundred  and  fifty 
dollars  an  acre  to  the  value  of  the  land  ?  It  was  the  water  right,  and  nothing 
else.  This  water  right  had  been  provided  by  the  expenditure  of  over  a  million 
dollars  by  the  company.  According  to  the  decision  of  Judge  Ross,  the  company 
had  no  power  to  sell  its  land  for  this  advanced  sum,  because  it  w^as  charging 
for  a  "so-called  water-right,"  and  the  constitution  forbids  it.  But  there  is 
nothing  in  the  constitution  or  any  statute  that  forbids  the  sale  of  a  water  right 
with  the  land,  and  if  such  a  doctrine  is  engrafted  upon  the  laws  of  this  State 
by  judicial  legislation,  the  broad  acres  of  Southern  California  may  as  well  be 
turned  back  into  sheep  pastures,  for  no  corporation  or  individual  can  possibly 
develop  and  supply  water  in  the  southern  part  of  the  State  for  expensive  irri- 
gation and  storage  works  necessary  to  store  and  supply  water,  under  such  a 
construction  of  the  law.  Section  552  contains  a  second  clause  wdiich  provides 
that  "whenever  any  person  in  cultivating  land  on  the  line  and  within  the 
flow  of  any  ditch  owned  by  such  corporation  has  been  furnished  water  bv  it 
with  which  to  irrigate  his  land,  such  person  shall  be  entitled  to  the  continued 
use  of  said  water  upon  the  same  terms  as  those  who  have  purchased  the  land 
of  the  coi-poration."  That  is  to  say,  when  water  is  furnished  to  the  lands  of 
another  not  sold  by  the  company,  it  vests  in  the  owaier  of  the  land  a  water 
right  ,  or  the  right  to  the  perpetual  use  of  the  water  as  an  easement  and  ap- 
purtenant to  the  land.  Take  the  case  of  the  San  Diego  Land  and  Town  Com- 
pany again.  By  appropriating  and  storing  the  water,  and  the  expenditure  of 
over  a  million  dollars  therefor,  it  converted  its  own  land  from  "dry"  land  worth 
fifty  dollars  an  acre  to  "irrigated"  land,  or  land  with  water  right  attached, 
worth  three  hundred  dollars  an  acre,  and  it  sold  readily  for  that,  and  in  some 
cases  for  much  more.  By  appropriating  this  water  and  furnishing  the  facili- 
ties for  storing  and  delivering  it,  the  company  is  prepared  to  convert  the  dry 
land  of  other  owners  worth  fifty  dollars  an  acre,  into  irrigated  land,  or  land 
with  water,  worth  three  hundred  dollars  an  acre.  Must  the  company  give  away 
this  water  right  to  other  land  owners,  or  has  it  the  right  to  charge  for  it? 
Judge  Ross  holds  that  the  company  must  furnish  the  water  for  the  asking, 
and  thereby  vest  the  land  with  a  water  right  worth  two  hundred  and  fifty 
dollars  an  acre,  but  that  it  cannot  charge  for  it;  he  says,  because  the  constitu- 
tion forbids  it.  But  does  the  constitution  forbid  it?  There  seems  to  be  nothing 
in  the  constitution  that  can  reasonably  be  construed  to  have  this  effect  by  im- 
plication, and  certainly  it  contains  no  express  provision  on  the  subject,  and  the 


History  of  the  Bench  and  Bar  of  California.  157 

learning  and  industry  of  Judge  Ross  and  of  counsel  interested  in  the  case 
fail  to  find  any  such  inhibition  in  the  constitution  or  in  any  State  statute. 
It  is  maintained  that  the  constitution  makes  all  water  appropriated  for  sale, 
rental  or  distribution  a  public  use,  and  subject  to  the  regulation  and  control 
of  the  State  in  the  manner  to  be  prescribed  by  law.     So  it  does.     But  it  has 
never  been  prescribed  by  law  that  a  water  company  shall  give  away  its  water 
rights,  or  that  it  should  not  be  allowed  to  charge  any  compensation  therefor. 
When  the  constitution  was  adopted,  Section  552  was  in  force,  which  allowed 
the  company  to  fix  its  own  rates  for  supplying  water,  but  this  provision  had 
nothing  whatever  to  do  with  the  water  right,  whether  sold  with  the  land  of  the 
company  or  to  be  attached  to  other  lands.     It  applied  solely  to  the  amount 
to  be  charged  for  storing  and.distril)uting  the  water.     Under  the  constitution, 
the  act  of  1885  was  enacted,  which  changed  the  old  law  only  in  the  particular 
that  by  its  provisions,  if  the  rates  for  supplying  the  water  fixed  by  the  company 
were  not  satisfactory,  any  twenty-five  citizens  of  the  county  may  petition  the 
board  of  supervisors  to  fix  the  rates,  and  the  board  must  do  so.    It  is  simply  an 
additional  protection  to  the  holders  of  water  rights  against  the  fixing  of  unjust 
rates  after  they  have  acquired  their  water  rights.     There  is  nothing  in  the 
statute  or  in  the  constitution  that  goes  further  than  this.     But  it  is  said  the 
constitution  provides  that  the  right  to  collect  rates  or  compensation  for  water 
supplied  is  a  franchise,  and  cannot  be  exercised  except  by  the  authority  of 
and  in  the  manner  prescribed  by  law.     So  it  does.     But  so  is  the  operation 
of  a  railroad  franchise,  and  can  only  be  exercised  by  authority  of  and  in  the 
manner  prescribed  by  law.    Both  kinds  of  corporation  can  obtain  rights  of  way, 
reservoir  sites,  water  rights,  depot  sites,  and  other  permanent  property  neces- 
sary to  the  conduct  of  their  business,  as  prescribed  by  law,  namely,  by  condem- 
nation.    The  railroad  company's  rates  are  regulated  by  law,  the  same  as  those 
of  the  water  company,  and  both  are  subject  to  the  control  of  the  public  author- 
ities ;  but  would  any  court  hold  that  because  the  rates  or  fares  of  a  railroad 
are  fixed  by  law,  it  cannot  sell  its  franchise  or  right  of  way  or  other  property 
belonging  to  it,  where  it  is  not  expressly  forbidden  to  do  so.  and  if  n(U.  why 
can  it  be  held,  or  for  what  reason,  that  a  water  company  that  had  bought  and 
paid  for,  or  condemned  and  paid  for,or  appropriated  under  the  laws  of  the 
State,  a  water  right,  can  be  compelled  to  transmit  that  water  right,  or  any  part 
of  it,  to  another,  without  compensation  ^    The  constitution  does  not  so  provide, 
nor  does  the  statute.     If  they  did,  it  is  submitted  tha  it  would  be  in  violation 
of  the  constitution  of  the  United  States,  for  this  would  be  taking  pn^perty 
without  compensation,  or  confiscation,  plain  and  simple. 

In  the  case  of  Lanning  v.  Osborne,  the  cases  of  Price  v.  Irrigating  Com- 
pany, 56  Cal.  431,  and  People  v.  Stej^hens,  62  Cal.  209,  are  cited  as  support- 
ing the  views  expressed  in  the  opinion  in  that  case,  and  they  do  support  such 
views  to  the  extent  of  holding  that  the  use  of  water  is  a  pul)lic  u.se  that  may  be 
and  has  been  regulated  by  the  State.  In  Price  v.  Irrigating  Co..  the  court 
said  (p.  434)  :— 


158  History  of  the  Bench  and  Bar  of  Calif ornl 


la. 


"The  defendant,  therefore,  is  bound  to  furnish  plaintitT  with  water  to  rri- 
gate  his  lands  on  his  payment  of  the  rates  fixed  in  the  manner  prescribed  by 
law, — it  having  the  water  to  furnish." 

But  the  question  of  the  right  to  charge  for  a  water  right  was  not  in  question, 
much  less  the  question  of  the  rights  of  the  company  and  a  consumer  to  vol- 
untarily contract  for  such  right  for  a  consideration.  But  obviously  this  is  the 
real,  and  it  is  believed  the  only  question  involved,  viz. :  must  the  law  providing 
for  the  fixing  of  rates  and  forbidding  the  company  to  charge  other  than  the 
rates  so  fixed,  be  held  to  forbid,  by  implication,  the  sale,  for  a  consideration, 
of  the  water  right  or  preferred  and  perpetual  right  to  the  use  of  the  water  once 
supplied?  The  statute  certainly  does  not  forbid  such  sale  in  terms.  But  the 
strength  of  the  very  able  and  exhaustive  opinion  in  the  Lanning  case  lies  right 
here.  The  position  taken,  briefly  stated,  is  that' the  charge  for  a  water  right 
is  but  another  way  of  adding  an  additional  charge  for  the  water  used.  And, 
it  is  not  without  force,  it  must  be  conceded.  But  it  must  be  borne  in  mind 
that  the  constitution  and  statues  were  passed  and  adoped  with  full  knowledge 
that  just  such  a  separate  charge  was  being  contracted  for  and  made.  It  was  a 
matter  of  common  knowledge,  a  part  of  the  history  of  the  State.  Not  only  so, 
but  the  Code  then  in  force  recognized,  in  terms,  the  distinction  between  the 
easement  or  right  to  the  perpetual  flow  of  the  water  and  the  rates  to  be  charged 
for  the  water  used.  And  why  should  the  right  to  contract  for  property  so  val- 
uable be  denied  by  the  courts  under  such  circumstances,  where  the  law  does 
not  forbid  it? 

The  importance  of  the  right  on  the  part  of  the  land  owner  to  make  such  a 
contract  may  be  further  illustrated  by  the  experience  of  the  company  above 
mentioned. 

When  the  compan}'  had  in  contemplation  the  construction  of  its  system  of 
water  works,  it  was  advised  by  its  engineer  that  the  system  would  supply  for 
irrigation  purposes  twenty  thousand  acres  of  land.  There  were  that  number 
of  acres  of  land  under  its  system.  It  constructed  its  works  with  that  under- 
standing and  belief.  It  was  found  by  experience,  after  the  works  were  com- 
pleted, that  the  duty  of  the  system  was  not  to  exceed  seven  thousand  acres, 
about  one-third  of  its  previously  estimated  duty.  As  has  been  said  above, 
the  right  to  procure  water  from  that  system  increased  the  value  of  the  land 
under  it  from  fifty  dollars  to  three  liundrcd  dollars.  Some  of  the  land 
owners  under  the  system  must  obtain  that  right  to  the  exclusion  of  others, 
for  the  reason  that  there  was  not  water  and  facility  for  supplying  it  sufficient 
to  irrigate  nearly  all  of  the  land.  Now,  why  might  not  a  land  owner  who 
desired  to  procure  this  preferred  right,  as  against  other  land  owners  under  the 
system,  agree  with  the  company  to  pay  it  a  reasonable  consideration  for  such 
right  to  ha\'e  the  water  supplied  to  his  land?  There  can  be  no  reason,  unless 
the  law  forbids  it.  If  not,  unquestionably,  it  was  property,  and  the  subject  of 
contract  between  the  parties.  If  the  law  does  forbid  it,  of  course  that  is  an 
end  of  the  question ;  so  that  the  sole  question  here  is,  as  stated  above,  whether 


History  of  the  Bench  and  Bar  of  California.  159 

the  constitution  and  statutes  can  properly,  and  ought  to  be,  construed  as  con- 
taining an  inhibition  against  making  such  contract. 

There  were  other  cases  decided  by  Judge  Ross,  confirming  the  conckision 
reached  by  him  in  the  Lanning  case.  In  Souther  v.  San  Diego  Flume  Com- 
pany, an  action  was  brought  against  the  company  to  rescind  a  contract  for  a 
water  right,  on  the  ground  that  it  had  failed  to  furnish  the  full  supply  of 
water.  The  company,  by  way  of  a  cross  bill,  set  up  the  same  contract  and 
sought  to  recover  upon  it  the  amount  agreed  to  be  paid  for  the  water  right.  It 
was  held  that  neither  praty  was  entitled  to  recover;  that  the  complainant  could 
not  rescind  the  contract,  because  it  was  void,  and  the  cross-complainant  could 
not  recover  on  it  for  the  same  reason.  The  case  was  decided  on  the  authority 
of  the  Lanning  case,  and  the  opinion  is  not  reported. 

In  the  case  of  Mandell  v.  San  Diego  Land  and  Town  Company,  one  Sharp 
intervened  and  sought  to  force  the  company  to  supply  his  land  with  water. 
The  company  defended  against  his  claim  on  the  ground  that  his  lands  were 
at  such  an  elevation  as  to  render  it  difficult  and  expensive  to  supply  the  water ; 
that  it  had  contracted  with  Sharp  to  supply  his  land  for  only  five  years,  and 
that  he,  by  the  contract,  expressly  waived  his  right  to  claim  the  right  to  the 
use  of  the  water  for  a  longer  time,  by  virtue  of  Section  552  of  the  Civil  Code 
or  otherwise.  But  it  was  again  held  that  the  special  contract  was  void,  and  as 
the  company  had  commenced  to  supply  the  water,  notwithstanding  the  con- 
sumer had  expressly  contracted  that  supplying  the  water  should  not  have  that 
effect,  in  his  favor,  he  was  entitled  to  its  perpetual  flow. 

Mandell  v.  San  Diego  Land  and  Town  Company,  89  Fed.  Rep.  295. 

All  three  of  these  cases  were  appealed ;  the  Lanning  case  to  the  Supreme 
Court  of  the  United  States,  and  the  others  to  the  United  States  Circuit  Court 
of  Appeals.  In  the  Lanning  case,  reported  under  the  title  Osborne  v.  San  Diego 
Land  and  Town  Company,  the  Supreme  Court  declined  to  pass  upon  the  ques- 
tion, and  affirmed  the  decision  on  other  grounds. 

In  Souther  v.  San  Diego  Flume  Company,  the  decision  of  Judge  Ross 
was  reversed,  the  Circuit  Court  of  Appeals  holding  that  the  company  and  its 
consumers  had  the  right  to  contract,  not  only  for  a  water  right,  hut  for  annual 
rates,  and  that  the  Supreme  Court  of  this  State  had.  by  its  decisions,  recog- 
nized the  validity  of  such  water  right  contracts. 

San  Diego  Flume  Co.  v.  Souther,  90  Fed.  Rep.  164. 

But  a  rehearing  was  granted  in  this  case  on  the  petition  of  attorneys  not 
interested  in  the  case,  but  whose  clients  were  interested  in  the  questions  in- 
volved. The  case  was  re-argued  and  again  submitted  and  taken  under  advise- 
ment, but  a  decision  has  not  yet  been  reached. 

The  decision  in  the  Sharp  case  was  affirmed,  but  without  deciding  the  im- 
portant question  of  the  validity  of  the  contract  mentioned. 

San  Diego  Land  and  Town  Co.  v.  Sharp,  ()7  I'cd.  Rep..  304. 
So  the  decisions  of  Judge  Ross  against  the  validity  of  such  contracts  siand 


160  History  of  the  Bench  and  Bar  of  California. 

alone  up  to  the  present  time.  His  opinions  have  been  well  considered  and  are 
entitled  to  the  respect  due  to  the  decisions  of  an  able  and  distinguished  judge, 
fully  understanding  and  appreciating  the  transcendant  importance  of  the  ques- 
tion with  which  he  is  dealing.  The  question  is  one  about  which  there  may- 
well  be  decided  differences  of  opinion,  and  that  such  differences  do  exist, 
amongst  judges  and  lawyers  thoroughly  competent  to  pass  upon  the  question, 
has  been  fully  demonstrated. 

The  case  of  Fresno  Canal  and  Irrigation  Company  v.  Parks  is  now  pending 
in  the  State  Supreme  Court.  It  has  been  submitted,  briefs  have  been  filed  by 
able  attorneys  representing  parties  to  the  suit,  and  other  briefs,  on  both  sides 
of  the  question,  have  been  submitted  by  the  attorneys  interested  in  the  question. 
An  early  decision  is  expected  but  there  is  doubt  whether  the  decision  of  the  case 
requires  a  decision  of  this  question.  And  if  it  does,  the  diversity  of  opinion 
on  the  subject  is  so  great  that  only  the  spirit  of  prophecy  would  enable  one  to 
say  what  the  result  is  likely  to  be.* 


OF  THE  QUESTION  OF  THE  RIGHT  TO  FIX  RATES  BY 

CONTRACT. 


We  have  seen  that  by  the  statute  of  1885  the  manner  of  fixing  rates  is 
prescribed  in  conformity  to  the  provisions  of  the  constitution.  Two  mode? 
of  establishing  the  rates  are  provided  for,  viz. :  by  the  board  of  supervislors 
on  the  petition  of  twenty-five  inhabitants  who  are  tax  payers  of  the  county, 
and  by  the  person,  cornpany,  association  or  corporation  furnishing  the  w^ater. 

Stat.  1885,  pp.  95,  97,  Sees.  3,  5. 

As  the  constitution  provides,  in  terms,  that  "the  right  to  collect  rates  or 
compensation  for  the  use  of  water  is  a  franchise  and  cannot  be  exercised  except 
by  authority  of  and  in  the  manner  prescribed  by  law,"  and  the  statute  has 
prescribed  these  two  modes  of  establishing  the  rates,  and  these  only,  it  would 
seem  to  follow  conclusively  that  rates  cannot  be  established  in  any  other 
way.  But  this  apparently  clear  proposition  has  not  gone  unchallenged.  On 
the  contrary,  it  is  stoutly  maintained  that,  notwithstanding  the  constitution  and 
statute,  the  company  supplying  the  water  and  its  consumers  may,  by  their 
own  private  contract,  establish  an  unalterable  rate  as  between  them.  But  this 
is  so  manifestly  subversive  of  the  constitution  and  statute  as  to  render  it  entirely 
untenable.  The  undoubted  policy  and  intention  of  the  law  is  that  rates  shall 
be  equal  and  uniform  to  all  takers  of  water  from  the  same  system  for  the  same 


*N0TE. — Since  this  paper  was  put  in  type  the  case  of  Fresno  Canal  and  Irrigation  Co. 
V.  Parks  has  been  decided.  The  decision  upholds  the  right  of  a  water  company  to  contract 
with  a  consumer  for  both  a  water  right  and  annual  rates,  but  subject,  nevertheless,  to 
State  control  and  regulation.  But  what  power  of  regulation  can  remain  in  the  State  if 
the  parties  can  legally  bind  themselves  by  contract,  cannot  be  readily  nerceived.  This  prob- 
lem   is   left   to   further   adiudication. 


History  of  the  Bench  and  Bar  of  California.  161 

purpose  or  kind  of  use.    That  the  rates  shall  be  equal  and  uniform,  when  fixed 
by  the  board  of  supervisors,  is  expressly  provided  by  the  statute,  as  follows : 
''But  such  rates  as  to  each  class  shall  be  equal  and  unifonn."  By  implication 
it  must  be  held  that  the  "actual  rates  established  and  collected  by  the  company" 
must  be  equal  and  uniform.     If  the  use  of  the  water  is  a  public  one,  as  it 
undoubtedly  is,it  must  necessarily  be  supplied  to  all  takers  under  like  conditions 
at  the  same  price  and  on  the  same  terms  and  conditions,  independently  of  any 
statutory  provision  to  that  effect.     Now,  if  it  is  once  admitted  that  rates  may 
be  fixed  by  contract  between  the  company  and  each  of  its  consumers,  the  power 
of  regulation  by  the  state  is  lost,  and  the  constitution  and  statute  providing 
therefor  are  effectually  abrogated,  and  every  consumer  may,  by  virtue  of  his 
contract  with  the  company,  have  a  different  rate  from  every  other  consumer 
under  the  system.     But  it  must  be  remembered  that  the  rate  to  be  charged  is 
a  matter  of  public  concern.    The  right  to  petition  for  the  fixing  of  rates  by  the 
board  of  supervisors  is  not  confined  to  takers  of  water  from  the  company. 
It  may  be  exercised  by  any  twenty-five  inhabitants  and  tax  payers.     It  must 
be  obvious  that  this  right  given  to  a  class  of  the  public  cannot  be  taken  away 
by  any  contract  made  by  the  company  with  some  other  person  belonging  to  that 
class  or  not  as  the  case  may  be.    It  is  true  that  the  power  of  the  board  of  super- 
visors is  to  fix  maximum  rates  and  the  inhibition  against  the  company  is  that 
it  shall  not  charge  more  than  the  rate  fixed.     It  may  charge  less,  undoubtedly. 
But  if  it  does,  it  must  establish  the  same  rate  for  all  its  consumers.     It  could 
not  charge  one  more  and  another  less,  but  whatever  rate  it  exacts  must  be 
equal  and  uniform.     So  it  cannot,  in  the  nature  of  the  case,  fix  rates  by  con- 
tract, but  must  by  some  general  order  or  otherwise  fix  a  uniform  rate  to  be 
imposed  upon  all  of  its  consumers.     But,  as  said,  this  has  been  and  is  now 
being  contested  in  the  courts.    The  position  was  taken  in  Lanning  v.  Osliorne, 
above  reviewed,  that  the  company  might  fix  the  annual  rate  to  be  paid  by  con- 
tract with  its  consumers,  and,  further,  that  by  representing  to  parties  buying 
land  from  it  that  water  would  be  supplied  at  a  stated  rate,  the  company  was 
estopped  to  thereafter  increase  the  rate.    Judge  Ross  held  against  both  ( «f  these 
contentions,  saying : 

"The  views  above  expressed  are  conclusive  against  the  positions  of  the 
defendants,  unless  it  be,  as  claimed  by  them,  that  the  complainant  is  estopped 
from  making  any  changes  in  the  rates  at  which  it  has  heretofore  furnished 
the  defendants  with  water,  or  that  the  water  in  question  is  so  far  private  prop- 
erty as  that  the  parties  to  the  suit  could  make  valid  contracts  in  respect  to  the 
rates  at  which  the  company  should  furnish  it  to  the  defendants.  If  the  com- 
pany is  a  private  corporation,  and  the  water  private  property,  this  would 
undoubtedly  be  so;  but  if  the  complainant  is  a  public  or  quasi  public  corpora- 
tion, and  the  water  in  question  is,  and  at  all  the  times  mentioned  has  been 
charged  with  a  public  use,  it  is  not  true;  for  nothing  can  be  clearer  than  that, 
in  respect  to  such  water,  rates  established  in  pursuance  of  law  must  control, 
and  that  no  attempt  to  ignore  that  control  and  to  establish  them  by  private 
contract  is  of  any  validity.  The  fact  that  some  of  the  purposes  for  which 
the  complainant  company  was  incorporated  are  purely  private  is  unimportant. 


162  History  of  the  Bench  and  Bar  of  California. 

since  among  the  purposes  is  'the  supph-ing  of  water  to  the  public'  and  'the 
construction  and  maintenance  of  dams  and  canals  for  the  purpose  of  water- 
works, irrigation,  or  manufacturing.'  " 

*       *       * 

"As  the  water  in  question,  from  the  moment  the  appropriation  became 
effective,  became  charged  with  a  public  use.  it  was  not  in  the  power  of  either 
the  corporation  making  the  appropriation  or  of  the  consumers  to  make  any 
contract  or  representation  that  would  at  all  take  away  or  abridge  the  power 
of  the  State  to  fix  and  regulate  the  rates.  All  persons  are  presumed  to  know 
the  law,  and  those  who  bought  lands  from  the  complainant  corporation  upon 
its  representations  that  water  for  irrigation  would  be  furnished  at  the  annual 
rate  of  $3.50  an  acre,  or  otherwise  acted  or  contracted  with  reference  to  such 
rates,  must  be  held  to  have  known  that  the  constitution  conferred  upon  the 
legislature  the  power,  and  made  it  its  duty  to  prescribe  the  manner  in  which 
such  rates  should  be  established.  This  the  legislature  has  done  by  the  act  of 
March  12,  1885.  As  by  that  act  the  legislature  deemed  it  proper  to  allow  the 
action  of  the  board  of  supervisors  to  be  invoked  in  the  first  instance  only  by 
twenty-five  inhabitants,  who  are  tax-payers  of  the  county,  and  until  then  to 
leave  the  designation  of  rates  to  the  person,  company,  or  corporation  furnish- 
ing the  water,  to  hold  valid  and  binding  any  contract  between  parties  with 
reference  thereto  w^ould  be.  in  effect,  to  ignore  and  set  aside  the  provisions  of 
the  statute  upon  the  subject;  for  it  is  plain  that  a  contract  must  bind  all  of 
the  parties  to  it,  or  it  binds  none ;  and.  if  binding  at  all,  its  manifest  effect 
would  be  to  remove  from  the  regulation  of  the  State  the  rates  in  question, 
and  leave  them  to  be  governed  and  controlled  by  private  contract,  or  such 
representations  and  acts  as  may  amount  to  the  same  thing.  No  company  or 
corporation  charged  with  a  public  use  can  be  estopped  by  any  act  or  representa- 
tion from  performing  the  duties  enjoined  on  it  by  law.  It  will  hardly  be 
contended  that  the  defendants,  by  reason  of  any  of  the  express  contracts,  pleaded 
in  defense  of  the  suit,  or  of  any  contract  growing  out  of  the  representations 
alleged  to  have  been  made  by  the  company,  would  be  estopped  from  applying 
to  the  board  of  supervisors  of  the  county  for  the  establishment  of  rates.  The 
case,  in  truth,  affords  no  basis  for  the  operation  of  an  estoppel  against  either 
party:   which,  to  be  good,  must  be  mutual." 

This  reasoning  seems  to  be  unanswerable.  On  the  appeal  of  this  case 
to  the  Supreme  Court  of  the  United  States,  the  positions  taken  in  the  Circuit 
Court  were  again  advanced,  and  it  was  further  contended  that  if  the  constitu- 
tion and  laws  of  California  did  take  away  or  abridge  the  right  of  the  company 
and  its  consumers  to  contract  with  reference  to  their  property,  they  were  in 
violation  of  the  constitution  of  the  United  States.  The  Supreme  Court  did  not 
pass  upon  any  of  these  questions,  in  terms,  but  decided  the  case  on  other 
grounds.  But  the  reasoning  of  the  Court  in  passing  upon  the  question  whether 
rates  fixed  by  the  company  were  forever  fixed,  and  unalterable,  is  pertinent 
as  establishing  the  doctrine  that  the  intention  of  the  law  is  to  regulate  rates 
from  time  to  time  to  meet  changed  conditions,  and  that  no  rate  could  l)e  held 
to  be  irrevocably  established,  whether  fixed  by  the  board  of  supervisors  or  by 
the  company.    It  is  said  : — 

"The  purpose  of  the  Act  rejects  such  view.  Its  purpose  is  regulation,  delib- 
erate and  judicial  and  periodical  regulation  by  a  selected  tribunal,  and  we 
cannot  believe  that  the  legislature  intends  by  an  absolute  and  peremptory  pro- 
vision to  fix  rates  upon  the  water  companies  unalterable  by  them,  no  matter 
what  change  in  conditions  might  supervene.     Against   rates  which  may  become 


History  of  the  Bench  and  Bar  of  California.  163 

unreasonably  high,  the  statute  gives  relief  to  consumers  through  petition  to 
the  board  of  supervisors.  Rates  which  may  become  unreasonably  low.  it  surely 
does  not  intend  to  impose  on  the  companies  forever,  except  as  relief  may  come 
from  the  voluntary  justice  of  its  customers  or  by  a  violation  of  the  statute 
and  appeal  to  the  courts.  There  is  nothing  in  the  Act  to  indicate  the  regulation 
of  the  rates  by  law,  not  commanded  to  be  exercised  by  the  governing  bodies  as 
a  voluntary  duty  as  establishing  rates  in  cities  and  towns,  but  exercised  when 
invoked  by  petition.  Until  the  necessity  of  that,  what  more  natural  and  just 
than  to  leave  the  right  with  the  water  companies  and  recognize  it  as  legal.  This 
is  the  meaning,  we  think,  of  the  provisions  of  sections  5  and  8,  supra.  To  so 
interpret  them  makes  the  scheme  of  regulation  complete — adequate,  without 
being  meddlesome  or  oppressive.  The  power  of  regulation  is  asserted  and 
provided  for,  and  ready  to  be  exercised  to  correct  abuse,  and  who  doubts  but 
that    its    exercise    would    be    invoked." 

In  the  case  of  Fresno  Canal  and  Irrigation  Co.  v.  Parks,  pending  in  the 
State  Supreme  Court,  and  above  mentioned,  this  claim  of  right  to  fix  rates  by 
private  contract  is  again  asserted,  this  time  by  the  sui^plier  of  water.  In  the 
other  case,  the  contention  was  by  the  water  consumers. 

The  only  decision,  so  far,  upholding  this  asserted  right  to  fix  rates  by  con- 
tract, is  that  of  Souther  v.  San  Diego  Flume  Co.,  90  Fed.  Rep.  164.  The 
Circuit  Court  of  Appeals,  after  reviewing  the  cases,  reach  this  conclusion: 

"Corporations   engaged   in   the  business  of   furnishing   water   for   irrigation, 
under  the  laws  of  California,  whether  they  acquire  the  water  by  appropriation 
of   the   waters   of   the   State   or   otherwise,   are   private   corporations.     They   are 
nowhere  declared  to  be  public  corporations  or  quasi  public.     They  conduct  their 
business   for  private   gain.     For   reasons   affecting   the   public   welfare,   they  are 
given   the   right   of  eminent   domain,   and,   in   order   that   the   use   of   the   water 
may  be   fairly  and  equitably  adjusted   to   consumers   and   their  rights   protected 
under  the  constitution,  it  is  provided  that  in  a  certain  contingency  the  rate  to 
be  paid  by  the  consumer  may  be  fixed  in  a  manner  prescribed  by  law\     The  use 
is  public  only  to  the  extent  that  the  corporation   may  be  compelled  to   furnish 
the  water,  provided  it  has  the  capacity  to  do  so,  to  all  who  receive  and  pay 
for  the  same,  and  that  the  rule  of  compensation  shall  be  fixed  by  the  law  in  case 
the  parties  cannot  agree." 
It  is  believed,  however,  that  this  conclusion  is  based  u])(M1  an  entire  misccMi- 
ception  of  the  nature  and  obligation  of  a  corporation  dealing  with  water  ni  such 
way  as  to  bring   it  within  the  i)rovisions  of  our  constitution.     Such  a  corjMn-a- 
tion  is  not  a  private  corporation,  but  a  quasi  public  corporation,  ni  so  far  as 
it  deals  with  the  public  use  in  the  water.     The  difference  between  such  a  cor- 
poration and  one  supplying  water  to  its  own  stockholders,   and   not  to  the 
general  public,  is  pointed  out  in  McFadden  v.  Supervisors.  74  Cal.  571.     And 
the  Circuit  Court  of  Appeals  has  granted  a  rehearing  in  the  Souther  case, 
so  that  the  decision  is  no  longer  authority.     It  is  cited  for  the  jnu-pose  of  show- 
ing the  views  of  the  judges  rendering  ihc  decision  as  the  case  was  then  pre- 
sented. 

There  is  another  statute  bearing  on  this  subject  that  should  be  noticed 
in  this  connection.  After  an  adverse  decision  was  rendered  against  them  by 
Judge  Ross  in  the  Lanning  case,  the  water  takers  affected  by  the  dccisi-.n 
sought  to  make  a  good  defense  for  themselves  l)y  securing  legislation  by  which 


164  History  of  the  Bench  and  Bar  of  California. 

it  was  hoped  to  make  valid  the  water  right  contracts  that  had  been  held  in  that 
case  to  be  void.  The  act  is  an  amendment  to  the  statute  of  1885,  and  adds 
a  new  section,  as  follows — : 

"Section  li^.  Nothing  in  this  Act  contained  shall  be  construed  to  pro- 
hibit or  invalidate  any  contract  already  made,  or  which  shall  hereafter  be  made, 
by  or  with  any  of  the  persons,  companies,  associations  or  corporations  described 
in  section  2  of  this  Act,  relating  to  the  sale,  rental,  or  distribution  of  water, 
or  to  the  sale  or  rental  of  easements  and  servitudes  of  the  right  to  the  flow 
and  use  of  water;  nor  to  prohibit  or  interfere  with  the  vesting  of  rights  under 
any  such  contract." 

Stat.   1897,  p.  49. 

This  amendment  to  the  statute  was  pleaded  at  a  later  stage  of  the  case, 
but  Judge  Ross  held  that  it  did  not  purport  to  make  valid  any  contract  other- 
wise invalid,  and  had  not  the  effect  to  render  valid  the  contracts  in  question 
there,  and  his  conclusion  as  to  the  invalidity  of  all  such  contracts  was  again 
stated. 

Lanning  v.  Osborne,  82  Fed.  Rep.,  575. 

This  amendment  grew  out  of  the  exigencies  of  the  occasion,  and  is  utterly 
inconsistent  with  the  other  provisions  of  the  act.  It  simply  provides  that 
nothing  in  the  act  shall  be  construed  as  invalidating  certain  contracts,  when 
it  cannot  properly  be  given  any  other  construction,  and  makes  the  whole  act 
an  absurdity  if  given  the  effect  intended.  The  act  provides  that  the  board  of 
supervisors  shall,  when  petitioned  to  do  so,  fix  the  rates  to  be  charged.  If 
the  rates  so  established  are  not  to  take  the  place  of  and  abrogate  rates  fixed  by 
the  contract  of  the  parties,  the  statute  is  no  better  than  so  much  blank  paper, 
and  the  constitutional  right  of  regulation  is  a  delusion. 


OF  THE  LAW  OF  IRRIGATION  DISTRICTS. 

The  law  of  irrigating  districts  has  ceased  to  be  of  general  interest.  It 
has  become  important  only  to  the  unfortunate  bondholders  of  the  districts  now 
in  existence  and  the  more  unfortunate  property  owner  therein  whose  property 
is  subject  to  taxation  to  pay  the  bonds.  The  law  has  proved  such  a  dismal 
failure,  in  its  practical  workings,  that  it  is  not  likely  that  the  formation  of  any 
new  districts  under  it  will  ever  be  attempted.  The  principal  question  now 
is  how  the  districts  that  have  been  formed  can  be  dissolved  without  unlawfully 
destroying,  or  interfering  with,  vested  rights,  particularly  the  rights  of  bond- 
holders and  other  creditors  of  the  districts.  Litigation  that  has  grown  out 
of  the  irrigation  district  laws  has  been  mainly  the  result  of  efforts  to  defeat 
the  organization  of  the  districts  and  prevent  taxation  by  them.  This  being 
the  condition  of  things,  a  minute  examination  and  review  of  the  various 
statutes  will  not  be  of  general  interest.  But  a  paper  on  the  irrigation  laws 
would  certainly  not  be  complete  without  calling  attention  to  these  statutes 
and  the  decisions  resulting  from  them. 


History  of  the  Bench  and  Bar  of  California.  165 

A  statute  was  enacted  in  1872,  providing  for  the  organization  of  drainage 
and  irrigation  districts. 
Stat.  1872,  p.  945. 

This  statute  was  very  general  in  its  terms,  and  did  not  prove  to  be  of  much 
importance,  so  far  as  the  formation  of  irrigation  districts  was  concerned, 
and  therefore  need  not  be  further  noticed.  Later,  in  1887,  ^  statute,  com- 
monly known  as  the  Wright  Act,  and  containing  an  elaborate  scheme  for 
the  organization  and  operation  of  irrigation  districts,  was  enacted.  It  pro- 
vides for  a  petition  of  "fifty,  or  a  majority  of  freeholders  owning  lands  sus- 
ceptible of  one  mode  of  irrigation  from  a  common  source,  and  by  the  same 
system  of  works,"  to  the  board  of  supervisors,  for  the  formation  of  the  dis- 
trict; for  notice  and  proceedings  before  the  board;  for  elections  to  determine 
whether  the  district  should  be  formed ;  and  for  the  election  of  officers ;  for  the 
issuance  of  bonds  when  authorized  by  a  vote  of  the  property-owners;  for 
the  levy  and  enforcement  of  taxes  for  the  payment  of  the  bonds,  and  other 
things  of  lesser  importance. 

Stat.  1887,  p.  29. 
Much  was  expected  of  this  statute,  and  an  avalanche  of  districts  followed, 
most  of  which  have  proved  to  be  disastrous  failures,  and  probably  none  but 
had  better  never  have  been  brought  into  existence.  For  the  first  few  years 
thereafter,  amendments  to  this  first  statute  were  enacted,  in  order  to  make  it 
more  effective. 

Stat.   1889,  p.   15. 

Stat.    1 89 1,  pp.   142,  244. 

Stat.  1893,  pp.  175,  516. 
Of  these  statutes,  intended  to  aid  and  strengthen  the  original  act,  was 
what  is  known  as  the  "Confirmation  Act,"  by  which,  after  proceedings  for 
the  organization  of  the  district,  or  the  issuance  of  the  bonds,  the  board  of 
directors  are  authorized  to  petition  the  Superior  Court  of  the  County  for  a 
decree  confirming  the  validity  of  such  proceedings. 

Stat.  1889,  p.  212. 
Then  followed  a  reaction.  It  was  found  that  the  practical  operation  of 
the  statute  was  not  what  had  been  expected,  and  a  wide-spread  dissatisfac- 
tion with  the  statute,  and  with  the  operation  of  the  districts  organized  under 
it,  followed,  and  has  continued  down  to  the  present  time.  As  a  result  of  this 
feeling,  other  statutes  have  been  enacted  with  a  view  to  make  the  original 
statute  less  effective,  to  prevent  the  formation  of  new  districts,  and  to  pro- 
vide a  means  of  bringing  the  old  ones  to  an  end  by  a  dissolution  of  them  in 
some  lawful  way,  and  the  reduction  of  their  bonded  indebtedness. 

Stat.    1893,  pp.  276,   520; 

Stat.   1895,  P-   127;    . 

Stat.   1897,  p.  254. 
The  last  of  the  foregoing  statutes  is  even  more  elaborate  than  the  original 


166  History  of  the  Bench  mid  Bar  of  California. 

Wright  Act.  It  is  not  important,  however,  except  that  it  makes  the  organ- 
ization of  such  districts  more  difficult  and  makes  it  quite  certain  that  unless  a 
decided  change  of  public  sentiment  takes  place,  no  districts  will  ever  be 
formed  under  this  new  Act,  which  was  probably  intended  to  be  its  effect. 

In  the  meantime,  the  courts,  both  State  and  Federal,  have  been  called  upon 
to  pass  upon  numerous  questions  growing  out  of  these  various  statutes. 

The  most  important  of  the  questions  decided  are  as  to  the  constitutionality 
of  the  act  providing  for  the  organization  of  districts,  and  as  to  the  effect  of 
the  Confirmation  Act,  and  proceedings  under  it. 

In  the  case  of  Bradley  vs.  Fallbrook  Irrigation  District,  68  Fed.  Rep., 
948,  Judge  Ross,  of  the  Circuit  Court  of  the  United  States,  held  the  act  to 
be  in  violation  of  the  Constitution  of  the  United  States.  It  is  unfortunate, 
looking  at  the  question  from  the  point  of  view  of  public  interest,  that  this 
decision  was  not  adhered  to,  as  it  would  have  relieved  the  State  of  an  incubus 
that  has  been  a  most  serious  detriment  to  its  best  interests,  and  freed  thou- 
sands of  acres  of  land  from  the  blanket  lien  of  an  exorbitant  bonded  indebt- 
edness that,  in  most  cases,  is  not  likely  ever  to  be  paid.  But  the  Supreme 
Court  of  the  United  States  reversed  the  decision  of  Judge  Ross,  and  held 
the  statute  to  be  constitutional.  Chief  Justice  Fuller  and  Justice  Field  dis- 
senting. 

Fallbrook  Irrigation  District  v.  Bradley,  164  U.  S.,  112. 

And  the  State  Supreme  Court  has  upheld  the  constitutionality  and  validity 
of  the  Act  in  a  number  of  cases. 

Turlock  Irrigation  District  v.  Williams,  76  Cal.,  360; 
Crall  V.  Poso  Irrigation  District,  87  Cal.,  140; 
In  re  Madera  Irr.  Dist..  92  Cal.,  296; 
In  re  Central  Irr.  Dist.,  117  Cal.,  382. 
So  it  may  be  regarded  as  settled  that  the  law  for  the  organization  of  irriga- 
tion districts  is  constitutional  and  valid. 

As  to  the  effect  of  the  Confirmation  Act.  it  is  a  separate  and  independent 
statute,  and  not  an  amendment  of  the  act  for  the  organization  of  districts. 
In  re  Central  Irr.  Dist..  117  Cal..  382. 
Its  object  was  to  remove  all  doubt  as  to  the  validity  of  the  proceedings 
for  the  organization  of  the  districts,  and  for  the  issuance  of  the  bonds,  and 
to  insure  the  sale  of  such  bonds. 

Crall  V.  Poso  Irr.  Dist..  87  Cal..  140. 
The  State  Supreme  Court  has  held,  contrary,  it  is  believed,  to  the  rule 
applied  in  other  like  cases,  that  the  law  for  the  organization  of  districts  should 
be  liberally  conptrued. 

Central  Irr.  Dist.  v.  De  Lappe.  79  Cal.,  351. 
And.  while  the  Supreme  Court  of  the  United  States  intimated,  in  the  case 
of  Tregea  vs.    Modesto   Irrigation   District,    164  U.    S.,    179,    if   it   did   not 
decide,  that  the  proceedings  fr)r  confirmation  were  of  no  binding  effect,  as 


History  of  the  Bench  and  Bar  of  California.  167 

an  adjudication,  the  Supreme  Court  of  California  has  held  that  the  decree 
of  confirmation  is  binding  and  conclusive,  not  only  as  to  the  district  and  its 
property-owners,  but  as  against  the  State  of  California  and  the  whole  world. 

Crall  V.  Poso  Irr.  Dist.,  87  Cal.,  140: 

Board  of  Directors  Modesto  Dist.  v.  Tregea,  88  Cal..  334; 

Rialto  Irr.  Dist.  v.  Brandon,  103  Cal.,  384; 

People  V.  Linda  Vista  Irr.  Dist..  (May  18.  1900.  unreported). 
This  may  be  so  in  respect  of  all  questions  of  procedure,  and  as  to  irregu- 
larities, but  it  is  submitted,  with  respect,  that  such  decree  cannot  supply  a  want 
of  jurisdiction  in  the  board  of  supervisors  which  would  render  their  pro- 
ceedings void.  If  so,  persons  claiming  to  be  directors  of  districts,  but  wdio 
are  not  so  in  fact,  may  ask  the  Superior  Court  to  decree  void  proceedings  to 
be  valid,  and  thereby  organize  a  district  by  a  decree  of  that  court,  which 
is  wholly  unauthorized,  and,  by  a  subsequent  decree,  founded  uj^on  the  fact 
that  the  district  has  been  organized  and  directors  elected,  authorized  to  prose- 
cute the  proceeding,  breathe  the  l)reath  of  life  into  a  body  that  never  breathed 
before,  and  make  a  district  out  of  whole  cloth.  If  this  can  be  done,  any 
three  or  more  men  claiming  to  be  directors  of  a  district  may  come  into  court 
and  have  a  decree  rendered  that  such  district  has  been  legally  organized,  when 
no  steps  have  ever  been  taken  for  such  purpose,  or  even  thought  of.  The 
Supreme  Court  may  have  intended  to  go  this  far.  Imt  if  so.  it  has  certainly 
gone  in  the  face  of  well-settled  rules  of  law  to  the  contrary.  A  void  pro- 
ceeding, resulting  from  a  want  of  jurisdiction,  is  as  nothing.  No  subsequent 
action  of  that  or  any  other  court  can  make  it  valid.  This  rule  is  elementary. 
Applying  it  to  a  case  of  this  kind,  it  is  impossible,  if  the  proceedings  before 
the  board  of  supervisors  are  void  for  want  of  jurisdiction,  that  any  decree 
of  another  court  can  make  them  good  or  estop  any  one  from  asserting  them 
to  be  bad.  But  it  is  not  believed  that  the  Supreme  Court  intended  to  go  so 
far.  The  right  to  attack  the  proceedings  of  the  Superior  Court  for  want 
of  jurisdiction  is  recognized  in  Board  of  Directors  vs.  Tregea,  88  Cal..  334, 
347.  And  if  they  can  be  attacked  in  one  way  on  the  groimd  that  they  are 
void  for  want  of  jurisdiction,  they  can  in  any  other  legal  way,  collaterally  or 
otherwise,  and  at  any  time.  It  is  also  held  that  where  the  petition  for  the 
organization  of  a  district  is  not  signed  by  the  requisite  number  of  freeholders 
owning  lands  in  the  district,  it  is  fatal  to  the  organization,  and  a  proceeding 
to  confirm  cannot  be  maintained. 

Directors  Fallbrook  Irr.  Dist.  v.  Abila,  106  Cal.,  355. 
This  was  in  a  proceeding  to  confirm  the  action  of  the  board  of  sujjcr- 
visors.  and  the  question  was  raised  by  answer.  But  the  ccnu't  holds  that 
the  confirmation  proceeding  camiot  be  maintained  where  the  board  had  no 
jurisdiction.  If  the  decisions  of  the  court  can  jjroperly  be  construed  as  holding 
the  confirmation  proceedings  to  be  conclusive  on  the  question  of  jurisdiction, 
it  holds  that  if  there  is  a  want  of  jurisdiction  a  confirmation  jjroceeding  can- 


168  History  of  the  Bench  and  Bar  of  California. 

not  be  maintained,  but  if  it  is  maintained  and  the  Superior  Court  finds  there 
was  jurisdiction,  when  there  was  not,  everybody  is  conclusively  bound  to  the 
fact  that  what  was  not,  really  was. 

The  court  has  also  held  that  the  finding  of  the  supervisors  of  facts  giving 
them  jurisdiction,  is  not  conclusive  in  the  confirmation  proceedings,  but  may 
be  inquired  into  by  the  Superior  Court. 

In  re  Central  Irr.  Dist.,  117  Cal.,  382. 

It  does  not  follow,  however,  that  such  fact  may  be  questioned  in  any 
collateral  proceeding  or  action.  Indeed,  it  has  been  held  in  a  number  of 
cases  that  the  proceedings  for  the  formation  of  the  district  cannot  be  attacked 
collaterally. 

Quint  V.  Hoffman,  103  Cal.,  506; 

Miller  v.  Perris  Irr.  Dist.,  85  Fed.  Rep.,  693; 

Miller  v.  Perris  Irr.  Dist.,  92  Fed.  Rep.,  263. 

But  this,  again,  cannot  properly  be  extended  so  far  as  to  prevent  a  collateral 
attack  upon  the  proceedings  if  they  are  void  for  want  of  jurisdiction.  To  so 
hold  is  to  overturn  the  well-settled  rule  of  law  that  a  proceeding  void  for 
want  of  jurisdiction  may  be  attacked  at  any  time  and  in  any  form,  collaterally 
or  otherwise.  If,  therefore,  a  property-owner  should  attempt  to  enjoin  the 
enforcement  of  a  tax  against  his  land,  by  an  alleged  district,  which  never  had 
an  existence  because  the  proceedings  for  its  organization  were  void,  this  would 
undoubtedly  be  good  ground  for  such  injunction.  A  different  rule  was  laid 
down  in  Miller  vs.  Perris  Irrigation  District,  85  Fed.  Rep.,  693.  But  the 
learned  Judge  delivering  the  opinion  failed  to  distinguish  between  an  action 
to  inquire  into  the  organization  or  existence  of  a  corporation,  which  can 
only  be  prosecuted  b}'  the  State,  and  an  action  to  prevent  an  illegal  assess- 
ment and  enforcement  of  taxes  against  the  property  of  a  private  individual. 
It  would  be  singular  if  such  an  action  could  not  be  maintained  by  showing 
that  the  parties  levying  and  attempting  to  collect  the  taxes  had  no  legal 
authority  or  power  to  do  so,  because  they  were  not  a  district  or  officers  of 
a  district.  Certainly  this  could  be  shown,  if  the  parties  complained  of  made 
no  claim  to  be  or  represent  a  district  or  other  corporation  possessed  of  the 
power  of  taxation.  And  if  the  proceedings  for  the  organization  of  the  dis- 
trict are  wholly  void,  it  would  be  precisely  the  same  as  if  no  such  proceed- 
ings had  ever  been  had.  The  case  of  Norton  vs.  Shelby  County,  118  U.  S., 
426,  contains  the  view  here  taken.  It  distinguishes  between  an  effort  to 
question  the  acts  of  a  de  facto  ofificer  of  an  existing  corporation  and  an  attack 
upon  the  ground  that  the  office  itself  has  no  existence.  Notwithstanding  what 
is  said  of  this  case  in  Miller  vs.  Perris  Irrigation  District,  supra,  it  applies 
directly  to  conditions  such  as  we  are  now  considering,  because  here  the  right 
claimed  is  not  to  show  that  a  de  facto  officer  of  an  existing  office  was  not 
authorized  to  act  as  such,  but  that  no  such  office  or  corporation  had  an  exist- 
ence, and  therefore  the  levy  of  taxes  made  on  his  property  was  illegal  and 
void. 


History  of  the  Bench  and  Bar  of  California.  169 

See  also  People  v.  Toal,  85  Cal,  333 ; 
Beach  Pub.  Corp.,  Sec.  890. 
The  rule  is  correctly  stated  in  Beach  on  Public  Corporations  as  follows : 
"When  the  attempted  organization  of  a  municipality  is  void,  such  a  body 
may  plead  the  invalidity  of  its  organization  in  defense,  to  a  suit  brought  on  its 
bonds  since  it  has  no  power  to  issue  them." 
If  the  alleged  corporation  may  defend  against  liability  growing  out  of  facts 
void  because  it  was  not  a  corporation,  certainly  the  same  fact  would  be  good 
ground  for  preventing  the  taking  or  selling  of  property  by  it  for  taxes  it  had 
no  power  to  levy. 

Another  question  growing  out  of  these  statutes  should  be  noticed.  Quo 
warranto  proceedings  have  been  brought  by  the  people  to  test  the  validity  of 
the  organization  of  some  of  the  districts.  The  act  for  the  organization  of 
such  districts,  as  amended,  contains  this  provision : — 

"And  no  action  shall  be  commenced  or  maintained,  or  defense  made,  affect- 
ing the  validity  of  the  organization,  unless  the  same  shall  be  commenced  or 
made  within  two  years  after  the  making  and  entering  of  said  order." 

Stat.   1891,  p.   143,  Sec.  3. 
Does  this  limitation  bind  the  State  in  a  proceeding  to  forfeit  the  charter 
of  the  district  and  to  forbid  its  further  usurpation  of  the  franchises  and  powers 
of  a  corporation?     It  has  been  maintained,  in  some  of  the  pending  actions, 
that  it  does.     But  this  can  hardly  be  so,  as  the  code  provides  that  the  attorney- 
general  may  bring  the  action  whenever  he  has  reason  to  believe  that  any  such 
office  or  franchise  has  been  usurped. 
Code  Civil  Procedure,  Sec.  803. 
And  the  Supreme  Court  has  held,  in  a  number  of  cases,  that  the  usurpa- 
tion of  the  franchise  of  a  corporation  is  a  continuing  wrong,  and  each  day 
such  wrongful  act  is  repeated  is  another  and  separate  cause  of  action. 
People  V.   Stanford,  yy  Cal.,  360,  377; 
People  V.  Reclamation  District,  50  Pac.  Rep.,  1068; 
People  V.  Jefferds,  126  Cal.,  296. 
The  language  of  the  court  in  the  last  case  cited  is : 

"The  continued  exercise  of  a  franchise,  without  right,  is  a  continuously 
renewed  usurpation  on  which  a  new  cause  of  action  arises  each  day." 

If  this  be  so,  there  could  be  no  bar  to  an  action  of  this  kind  by  limitation, 
so  long  as  the  usurpation  continues.  And,  as  the  last  case  cited  was  one 
against  an  acting  irrigation  district,  it  would  seem  to  be  conclusive  of  the 
question. 

Still  another  question  of  interest  has  been  presented  in  an  action  of  quo 
warranto  to  question  the  right  of  the  Perris  Irrigation  District  to  exercise 
the  franchises  of  a  district.  It  w^is  alleged  and  proved  in  that  case  that  tiie 
order  of  the  board  of  supervisors  organizing  the  district  and  two  confirma- 
tion proceedings  were  produced  by  fraud,  that  one  of  the  decrees  of  confirma- 
tion was  procured  on  one  publication  of  notice  of  the  time  and  place  of  hearing 
the  petition,  when  three  publications  were  necessary  by  law,  and  the  other 


170  History  of  the  Bench  and  Bar  of  California. 

by  bribing  the  attorney  of  certain  contestants  of  the  order  of  confirmation 
to  absent  himself  when  the  petition  came  on  for  hearing,  by  which  no  defense 
was  made.  The  particular  fraud  alleged  and  proved  was  that  signers  of 
the  petition  were  not  bona  tide  freeholders,  but  had  been  made  such  by  con- 
veyances to  large  numbers  of  them  of  small  tracts  of  land  under  an  agree- 
ment to  reconvey  the  same  as  soon  as  the  district  was  formed,  which  agree- 
ment was  carried  out,  and  that  it  was  concealed  from  the  board  of  super- 
visors and  Superior  Court  that  this  had  been  done.  The  case  has  not  yet 
been  decided  by  the  Supreme  Court.  TheSupreme  Court  has  decided  that 
signers  of  such  a  petition  must  be  "bona  fide  owners  of  agricultural  bnds 
desiring  to  improve  the  same  by  conducting  water  thereon." 
In  re  Central  Irr.  Dist.,  117  Cal.,  382,  398. 

An  irrigation  district  is  held  to  be  a  public  corporation  that  cannot  be 
dissolved  for  misuser  or  non-user  of  its  corporate  powers  in  the  absence  of 
a  law  conferring  power  on  the  courts  to  pass  a  judicial  sentence  dissolving  such 
corporation  upon  those  grounds. 

People  V.  Selma  Irr.  Dist.,  98  Cal.,  206. 

The  statute  authorizing  the  issuance  and  sale  of  bonds  provides  that  the 
bonds  may  be  exchanged  for  certain  purposes.  This  is  held  by  the  Supreme 
Court  to  be  a  limitation  of  power  on  the  part  of  the  board  of  directors,  and 
that  bonds  cannot  be  exchanged  for  other  purposes  than  those  mentioned,  but 
must  be  sold  for  cash. 

Hughson  V.  Crane,  115  Cal.,  404. 

The  intention  of  this  paper  has  been  to  call  attention  to  the  most  import- 
ant questions  growing  out  of  our  irrigation  laws,  and  decisions  relating  to 
them,  and  to  point  out  some  of  the  defects  that,  in  the  judgment  of  the  writer, 
should,  in  the  interest  of  the  public,  be  corrected.  The  subject  could  not  be 
fully  covered  in  an  article  of  this  kind.  It  has  not  been  the  purpose  to  com- 
ment upon,  or  even  cite,  all  of  the  decided  cases,  but  only  the  most  important 
of  them.  The  study  of  the  question  of  water  rights  and  irrigation  laws  is 
most  interesting.  It  deserves  a  more  careful  study  than  has  yet  been  given 
it,  with  a  view  to  a  better  understanding  of  it,  and  a  speedy  correction  of  its 
defects.  If  this  paper  shall  serve  to  bring  this  about,  in  any  degree,  the 
writer  will  l)e  sufficiently  repaid  for  the  lal)or  bestowed  upon  it.  There  is  one 
subject  connected  with  the  water  supply  of  the  State  that  has  not  been  dwelt 
upon  here  because  it  does  not  fall  within  the  irrigation  laws  or  decisions.  But 
it  should  not  be  overlooked.  It  is  the  absolute  and  imperative  necessity  of 
preserving  the  water  supply.  The  unnecessary  and  often  wanton  destruction 
of  our  forests  and  all  undergrowth  and  vegetation  that  has  heretofore  pro- 
tected and  preserved  our  water  supply  is  nothing  less  than  a  public  calamity 
that  should  l)e  prevented  1)y  the  most  stringent  penal  laws  and  tlie  withdrawal 
from  sale  of  all  timbered  land  to  private  individuals,  by  the  national  govern- 
ment and  the  acquisition  by  it,  if  possible,  of  such  lands  already  sold. 

JOHX  D.  WORKS. 

Los  Angeles,  September,  1900. 


TRAGIC  HISTORY  OF 
THE  SHARON  CASES 


■By  ^HE  EDITOR 


'^3-^3  f^  oh  oY3  e^  eVg  4^  cfe  t^ 


HISTORY  of  the 
BENCH  and  BAR 
of  CALIFORNIA 


ujo  6^  Gg>  c)^  y  ijp  e^  e^  cj. ,  .y. 


The  TRAGIC  HISTORY  of  the 
SHARON  CASES 


William  Sharon,  born  in  Ohio,  of  Quaker  parents,  on  the  9th  of  January, 
1820.  arrived  in  California  on  August  15,  1849,  ^.nd  followed  the  business 
of  a  real  estate  broker.  He  prospered,  and,  after  a  good  many  years,  specu- 
lated in  the  mines  on  the  Comstock  lode,  in  Nevada,  on  a  vast  scale,  and 
acquired  a  fortune  of  many  millions  of  dollars.  He  was  president  of  the 
syndicate  which  reorganized  the  Bank  of  California,  after  its  suspension,  in 
1875.  He  had  then  for  some  years,  had  charge  of  the  Virginia  City  (Nev. ) 
agency  of  that  bank.  In  February,  1874,  he  purchased  the  Enter  prise  news- 
paper of  that  place.  In  the  following  year  he  was  elected,  as  a  Republican, 
United  States  senator  for  Nevada,  and  served  a  full  term  of  six  years,  being 
succeeded  by  James  G.  Fair,  Democrat,  on  the  4th  of  March,  1881.  His 
wife  died  in  San  Francisco  in  1875.  He  had  two  daughters.  One  of  these, 
who  has  since  deceased,  became  the  wife  of  Frank  G.  Newlands,  wdio  has 
now  for  a  long  period  been  representative  in  Congress  from  Nevada ;  the 
other  married  Sir  Thomas  Hesketh,  of  England,  in  1880. 

In  the  San  Francisco  city  directory  for  1879-80  is  to  be  found  the  name 
"Miss  S.  A.  Hill,  resides  The  Baldwin,"  and  in  the  same  book  for  1880-81 
appears,  "Miss  Allie  Hill,  resides  The  Baldwin" — her  first  appearance,  and 
her  last,  on  the  directory  pages. 

The  "Life  of  David  S.  Terry"  appeared  in  1892— by  A.  E.  Wagstaff  (a 
name  very  favorably  known)  authorized  by  Judge  Terry's  son.  Of  course, 
the  book  is  quite  interesting.  Sarah  Althca  is  thus  introduced  in  the  well- 
written  story : 

Dramatic  incidents  are  usually  embellislicd  by  a  woman,  and  no  woman  is  capable 
of  creating  incidents  of  moment,  involving  the  attention  of  the  public,  unless  pos- 
sessed of  some  extraordinary  abilities  or  peculiar  characteristics  not  in  keeping  with 
the  usual  order  of  her  sex.  The  Pacific  Coast  has  been  the  nursery  of  surprises  in 
almost  every  department  of  life.  It  was  here  millionaires  were  first  counted  in  large 
numbers,  vast  wealth  supplied  the  sinews  of  war  for  the  rebellion,  and  schemes  of 
marvelous  engineering  surmounted  obstacles  in  crossing  the  mountains  and  building 
the  transcontinental  railway.     Society  was  also  shocked  with  her  characters,  and  the 


174  History  of  the  Bench  and  Bar  of  California. 

enterprise  of  a  Mciggs  and  his  compeers  astonished  the  coinitry.  The  clash  of  nation- 
alities represented  in  the  avenues  of  trade  and  commerce  only  irritated  the  spirit  of 
enterprise  with  its  cosmopolitan  ideas.  Among  the  contributions  to  society  was  a 
Missouri  girl  whose  advent  was  noted  in  1870.  She  came  unheralded  and  unknown, 
and  was  only  one  of  a  thousand  who  had  preceded  her.  She  would  have  probably 
remained  in  modest  obscurity  had  she  not  become  infused  with  a  spirit  of  speculation 
in  an  endeavor  to  regain  a  foolishly-spent  fortune.  At  that  time  both  sexes  were  wild 
over  mining  stocks,  but,  unfortunately  for  her,  she  was  endowed  with  a  rash  and 
impetuous  nature,  backed  by  zeal  and  determination,  and  her  faculties  for  scheming 
in  the  channels  of  the  general  gamble  were  sharply  defined.  In  her  contact  with  the 
world,  all  her  faculties  were  on  edge.  She  was  a  woman  of  fair  education,  strong 
passions,  and  infinite  resources,  in  the  pursuit  of  whatever  fancy  took  possession  of 
her  mind,  and  in  her  endeavors  to  obtain  wealth  in  the  field  of  speculation,  she  became 
acquainted  with  Hon.  William  Sharon,  then  United  States  senator  from  the  State  of 
Nevada,  who  was  a  wealthy  banker  and  controlled  vast  mining  interests.  The  social 
intimacy  and  business  relations,  whether  honorable  or  not.  led  to  the  most  startling 
results. 

The  following  brief  mention  of  the  lady  is  taken  from  what  is  said  to  be  a  correct 
history  of  her  former  life  in  Missouri,  and  as  its  correctness  has  never  been  challenged, 
it  is  here  presented  without  comment : — 

"Sarah  Althea  Hill  was  born  near  the  town  of  Cape  Girardeau,  Missouri,  in  1848. 
She  comes  of  good  stock,  her  father  being  Samuel  Hill,  a  prominent  attorney,  and  her 
mother,  Julia  Sloan,  the  daughter  of  a  wealthy  lumber-dealer.  She  has  one  brother, 
Hiram  Morgan  Hill.  Her  parents  died  in  1854,  leaving  the  two  orphans  an  estate 
valued  at  $40,000.     Sarah  is  related  to  some  of  the  best  families  in  the  country. 

"She  attended  school  at  Danville,  Kentucky,  and  finally  graduated  from  St.  Vin- 
cent convent.  Cape  Girardeau,  Missouri.  She  had  a  governess  in  the  person  of  a 
Mrs.  Barrall,'  a  sister  of  ex-Congressman  Hatcher.  Her  grandfather,  Hiram  Sloan, 
was  her  guardian,  and  appears  to  have  held  a  slack  rein. 

"The  young  woman  developed  a  spirited  temper,  and  soon  reaching  legal  age,  made 
her  money  fly.  She  grew  up  into  womanhood  in  much  her  own  way,  and  was  noted 
for  her  beauty  and  temper.  She  was  a  schemer,  above  all  things,  and  this  made  her 
unpopular  among  her  girl  companions.  It  was  said  of  her,  too,  that,  though  she  was 
a  spendthrift,  she  worshiped  money,  and  gave  her  attention  mostly  to  those  who 
possessed  it.  She  is  remembered  by  her  friends  here  as  something  of  a  flirt,  and  at 
one  time  is  said  to  have  had  three  engagements  to^marry  on  her  hands.  One  of  the 
parties  is  now  a  prominent  politician  in  Southeastern  Missouri,  and  another  resides 
in   St.   Louis. 

"Her  con(|uests  were  numerous  during  the  time  she  held  her  sway.  She  was  fast, 
but  her  name  was  never  tarnished  with  scandal.  In  love  affairs  Sarah  was  tyrannical, 
and  more  than  one  of  her  lovers  had  to  suffer  her  iron  rule  and  eccentric  whims. 

"It  is  said  that  she  really  loved  one  young  fellow,  named  Will  Shaw.  They  were 
engaged  to  be  married,  but  as  the  result  of  a  tiff  the  young  man  determined  to  break 
the  engagement.  Sarah  heard  of  this,  and  when  next  he  called  she  was  so  charming 
that  he  pressed  his  -.uit  with  more  ardor  than  ever,  when  she  had  her  revenge  by 
snubbing  him. 

"TTie  story  goes  that  she  really  wanted  and  expected  him  to  return,  but  he  did 
not.  and  in  September,  1870,  disgusted  and  broken-hearted,  with  only  the  shadow  of 
her  fortune,  she  started  for  California. 

"A  young  uncle  named  William   Sloan   accompanied   lier   to   the   Coast.     He   was 
wealthy  and  took  his  niece  to  his  mother's  home.     Sarah 'and  the  old   lady  did  not 
live  in  harmony,  and  Sloan  gave  the  girl  a  fine  suite  of  rooms  in  a  hotel.     It  is  there 
that  she  met  Senator  Sharon." 
These  were  the  parties  to  a  Htigation  whicli  extended  over  a  period  of 
years  in  the   State  and   Federal   courts,   marked   by  incidents  and   episodes 
tinprecedentedly   strang-e.   and   acconiijlishing  the   worst   ends   of   fate   for  a 
number  of  persons. 


f 


History  of  the  Bench  and  Bar  of  California.  175 

On  the  3d  of  October,  1883,  William  Sharon,  declaring  himself  to  be  a 
citizen  of  Nevada,  brought  suit  in  the  United  States  Circuit  Court  at  San 
Francisco  against  Sarah  Althea  Hill  (the  Miss  Hill  above)  to  obtain  a  decree 
adjudging  that  a  certain  paper,  purporting  to  be  a  declaration  of  marriage 
between  them,  was  a  forgery,  and  ordering  that  the  paper  be  cancelled.  In 
his  complaint  Sharon  alleged  that  he  was  possessed  of  a  large  fortune  in 
real  and  personal  property ;  was  extensively  engaged  in  business  enterprises 
and  ventures,  and  had  a  wide  business  and  social  connection ;  that,  as  he  was 
informed,  the  defendant  was  an  unmarried  woman  of  about  thirty  years  of 
age,  for  some  time  a  resident  of  San  Francisco ;  that  within  two  months 
then  past  she  had  repeatedly  and  publicly  claimed  and  represented  that  she 
was  his  lawful  wife;  that  she  falsely  and  fraudulently  pretended  that  she 
was  duly  married  to  him  on  the  25th  day  of  August,  1880,  at  the  city  and 
county  of  San  Francisco ;  that  these  several  claims,  representations  and  pre- 
tentions were  wholly  and  maliciously  false,  and  were  made  by  her  for  the 
purpose  of  injuring  him  in  his  property,  business  and  social  relations;  for 
the  purpose  of  obtaining  credit  by  the  use  of  his  name  with  merchants  and 
others  and  thereby  compelling  him  to  maintain  her ;  and  for  the  purpose 
of  harassing  him,  and,  in  case  of  his  death,  his  heirs,  and  next  of  kin  and 
legatees  into  payment  of  large  sums  of  money  to  quiet  her. 

He  prayed  for  a  decree  that  the  defendant  had  never  been  his  wife;  that 
he  did  not  make  any  declaration  of  marriage,  and  that  she  be  perpetually 
enjoined  from  making  any  allegation  of  marriage  with  him ;  and  that  she 
deliver  up  the  alleged  marriage  contract  for  cancellation. 

On  the  first  day  of  November,  1883,  before  pleading  to  Sharon's  com- 
plaint in  the  United  States  Court,  Sarah  Althea,  giving  her  name  as  Sarah 
Althea  Sharon,  and  declaring  that  she  was  the  wife  of  William  Sharon, 
brought  an  action  for  divorce  against  him,  in  the  Superior  Court  of  San 
Francisco.  She  alleged  that  the  two  had  been  married  1)y  virtue  of  having 
made  and  signed  a  written  marriage  declaration  at  San  Francisco  on.  the 
25th  of  August,  1880 — that  is,  the  same  alleged  contract  for  the  cancellation 
of  which  Sharon  had  brought  suit  against  her  four  weeks  prior.  She  prayed 
that  the  alleged  marriage  might  be  declared  legal  and  valid,  and  that  she 
might  be  divorced  from  him  on  account  of  certain  infidelities,  which  she  set 
forth.  Alleging  that  he  was  worth  fifteen  millions  of  dollars,  with  an  income 
of  over  one  hundred  thousand  dollars  per  month,  she  ])raycd  that  an  account 
might  be  taken,  to  ascertain  what  portion  of  his  wealth  was  their  common 
property,  and  that  this  be  equally  divided  between  them.  I  ler  attorneys  were 
Geo.  \\\  Tyler  and  his  son.  \V.  B.  Tyler  (Tyler  &  Tyler).  Judge  Terry 
was  called  in  afterwards. 

On  November  10th  Sharon  filed  his  answer  in  this  suit,  denying  the 
alleged  marriage,  declaring  that  the  document  in  (|uestion  was  forged;  that 
he  had  never  heard  of  it  until   within  sixty  days  then  past,  and    further,   in 


176  History  of  the  Bench  and  Bar  of  California. 

regard  to  his  property,  that  he  was  not  worth  over  five  miUion  dollars,  and  his 
income  was  not  over  $30,000  a  month. 

On  November  24th  on  petition  of  Sharon,  the  parties  being  citizens  of 
different  States,  this  action  was  transferred  from  the  Superior  Court  to  the 
United  States  Circuit  Court,  where  his  own  cause  was  pending.  General 
W.  H.  L.  Barnes  was  Sharon's  attorney  in  both  suits,  ex-Supreme  Judge  Wm. 
T.  Wallace  being  "of  counsel." 

Next  on  December  3d  Sarah  Althea  filed  a  demurrer  in  the  first  action. 

On  December  31st  the  second  suit,  that  had  been  instituted  in  the  State 
court,  and  removed  as  stated,  was,  by  agreement  between  the  parties, 
remanded  to  that  tribunal  for  trial. 

On  ]\Iarch  3,  1884,  Sarah  Althea's  demurrer  in  the  first  suit  was  over- 
ruled by  United  States  Judges  Sawyer  and  Sabin,  with  leave  to  her  to  answer 
Sharon's  complaint  on  payment  of  $20,  the  usual  terms.  Before  further 
proceedings  there,  the  trial  of  the  second  suit  was  begun  in  the  Superior  Court, 
before  Judge  J.  F.  Sullivan,  on  March  10,  1884,  a  jury  being  waived. 

There  was  a  widely  accepted  notion  in  the  public  mind,  and  even  amon^ 
many  lawyers,  that  there  was  some  sort  of  interference  on  the  part  of  the 
Federal  courts  to  negative  or  obstruct  the  free  action  of  the  State  courts  in 
this  great  controversy.  There  was  no  real  basis  for  this  idea — the  jurisdic- 
tion of  the  Federal  courts  first  attached.  While  the  trial  at  which  we  have 
now  nearly  arrived,  was  in  progress  in  the  State  court,  and  during  the  pend- 
ency of  appeals,  proceedings  were  had  at  long  intervals,  in  the  United  States 
Circuit  Court,  as  follows : 

On  the  24th  day  of  April,  1884,  a  plea  in  abatement  was  filed. 

On  the  5th  day  of  May,  1884,  a  replication  to  said  plea  was  filed. 

On  the  1 6th  day  of  October,  1884,  an  order  adjudging  said  plea  false,  etc., 
was  made  and  entered. 

On  the  30th  day  of  December,  1884,  an  answer  was  filed. 

A  replication  to  said  answer  was  filed  on  the  2nd  day  of  January,  1885. 

On  the  25th  day  of  February,  1885,  a  supplemental  answer  was  filed. 

A  replication  to  said  supplemental  answer  was  filed  on  the  nth  day  of 
March,  1885. 

On  the  15th  day  of  January,  1886,  a  final  decree  was  entered. 

This  decree,  made  on  the  15th  of  January,  1886,  was  dated  as  of  Septem- 
ber 29th,  1885,  and  entered  as  of  this  last  given  date,  for  two  reasons,  namely: 
First,  that  was  the  date  of  the  final  submission  of  the  cause  to  the  court  after 
argument;  and,  second,  Mr.  Sharon  had  died  after  the  submission  and  before 
the  decree — on  November  13,   1885.  ' 

This  decree  adjudged  that  the  alleged  marriage  contract  was  false,  coun- 

terfeifed,  fabricated,  forged  and  fraudulent,  and  therefore  utterly  null  and 

void,  and  directed  that  it  be  surrendered  to  the  clerk  of  the  court  for  cancel- 

•  lation  within  twenty  days.     As  a  matter  of  fact  the  document  was  never 

delivered  over;  and  when,  more  than  three  years  thereafter,  David  S.  Terry, 


History  of  the  Bench  and  Bar  of  California.  177 

who  had  meanwhile  married  Sarah  Ahliea,  was  called  upon,  not  by  this  court, 
but  by  the  State  Supreme  Court,  to  produce  the  paper,  he  responded  that  it 
had  been  burned,  with  his  residence  at  Fresno,  in  1889. 

The  decree  of  the  United  States  Circuit  Court  was  signed  by  Judges 
Lorenzo  Sawyer  and  Matthew  P.  Deady,  and  was  entered  actually,  not  con- 
structively, just  three  and  a  half  years  prior  to  the  final  disposition  of  the 
case  by  the  Supreme  Court  of  the  State. 

The  trial  of  the  action  in  the  Superior  Court  was  begun  on  jMarch  10, 
1884,  and  was  concluded  on  the  17th  of  September  following,  covering  eighty 
days  of  actual  trial. 

Its  adventurous  course  need  not  be  closely  followed  here.  George  W. 
Tyler  was  often  in  trouble.  There  was  nearly  a  personal  collision  between 
Terry  and  Barnes  in  the  court-room.  Some  witnesses  for  Sarah  Althea  were 
sent  to  the  State  prison  before  the  case  ended,  for  perjury. 

During  the  progress  of  the  trial,  the  defense  learned  that  on  the  ist  of 
May,  1883,  the  plaintiff  had  visited  a  newly-made  grave,  prepared  for  the 
body  of  Anson  Olin,  at  the  Masonic  cemetery,  in  San  Francisco,  and  there, 
in  the  presence  of  a  Mr.  Gillard,  employed  in  the  cemetery,  she  deposited, 
under  the  box  which  was  to  contain  the  coffin,  a  package.  The  body  was 
on  the  same  or  next  day  deposited  in  the  grave  over  the  package,  which 
remained  there  until  the  grave  was  opened,  after  the  commencement  of  the 
trial. 

These  proceedings  of  the  plaintiff  came  to  the  knowledge  of  the  defense, 
while  ex-Superior  Judge  Oliver  P.  Evans,  associated  with  General  Barnes, 
was  cross-examining  her.  Under  an  order  from  the  health  officer  authorizing 
it,  the  grave  was  opened,  and  the  package  referred  to  was  found  under  the 
coffin.  It  contained  a  few  articles  of  Sharon's  underwear.  Judge  Evans  held 
up  each  bit  of  clothing  before  the  plaintiff  in  court,  and  asked  if  she  had  ever 
seen  them  before.     She  answered  that  she  had  not. 

The  evidence  of  a  fortune-teller,  a  witness  for  Sharon,  detailed  conver- 
sations the  plaintiff  had  with  her  in  the  latter  part  of  1882  and  the  early  part 
of  1883,  with  reference  to  a  grave-yard  charm,  and  what  she,  the  fortune- 
teller, had  advised  was  necessary  in  order  to  perfect  that  charm;  that  the 
plaintiff  must  wear  about  her  person,  for  nine  days  and  nine  nights,  certain 
specific  articles  of  clothing,  of  the  man  whom  she  desired  to  marry;  and 
that  afterward  she  should  deposit  them  in  a  newly  made  grave  before  the 
burial  of  the  body,  between  the  hours  of  twelve  and  one  o'clock  at  night ;  and 
that  when  the  buried  clothing  would  rot,  the  man  whom  she  desired  to  marry 
would  either  marry  her  or  die. 

Subsequently,  the  conditions  of  this  charm  were  modified,  so  tiiat  the 
articles  might  be  deposited  in  the  day-time,  rather  than  at  night.  There  was 
testimony  also  that  the  plaintiff  did  wear  about  her  left  leg,  above  the  knee, 
a  sock  or  socks  of  the  defendant,  for  nine  days  and  nine  nights;  also  that  she 
slept  in  one  of  Sharon's  shirts. 


178  History  of  the  Bench  and  Bar  of  California. 

During  the  trial,  General  Barnes  had  reason  to  suspect  that  there  was  a 
secret  agreement  between  Geo.  \\'.  Tyler  and  the  handwriting  expert,  Gumpel, 
by  the  terms  of  which  Gumpel  was  to  swear  to  the  genuineness  of  the  signa- 
ture ("William  Sharon,  Nevada")  to  the  alleged  marriage  contract,  and,  in 
the  event  of  the  plaintiff's  success,  was  to  receive  a  very  large  reward.  The 
General  freely  expressed  this  thought,  and  Tyler  saw  his  opportunity  to  get 
for  everybody  interested,  and  the  public,  too,  some  first-class  sport,  if  nothing 
else.  He  wrote  out,  in  his  own  hand,  such  a  document  as  General  Barnes 
believed  to  be  existing,  sul)scribed  the  names  of  himself  and  Gumpel,  and 
placed  the  paper  in  his  private  drawer  in  his  office.  Gumpel  gave  Tyler 
lessons  in  the  art  of  simulating  his  (  Gumpel 's)  signature.  Tyler's  chief  clerk 
was  John  F.  McLaughlin,  quite  a  capable  young  man,  admitted  to  the  bar, 
and  by  arrangement  between  the  two,  McLaughlin  waited  on  General  Barnes 
at  his  residence  and  told  him  that  he  had  discovered  among  his  employer's 
private  papers,  a  contract  between  him  and  Gumpel  (reciting  its  terms),  and 
that  he  would  get  it  and  hand  it  over,  if  suitably  compensated.  McLaughlin 
was  bold  enough  to  say,  substantially,  "Mr.  Sharon  has  sworn  in  his  pleadings 
that  his  income  is  thirty  thousand  dollars  a  month.  Give  me  one  month's 
income,  and  I'll  steal  the  agreement  and  deliver  it  up  to  you." 

Passing  by  the  details  of  the  negotiation,  which  indeed  did  not  take  up 
much  time.  General  Barnes  agreed  to  pay  McLaughlin  twenty-five  thousand 
dollars  for  the  document.  He  actually  paid  him  that  sum  in  new  crisp,  gov- 
ernment bills,  (Sharon's  money),  at  the  General's  house  at  night,  and  received 
the  desired  paper.      There  was  no  witness  present. 

Gumpel  had  sworn  that  the  Sharon  name  to  the  alleged  marriage  contract 
was  a  genuine  signature.  General  Barnes  argued  that  if  Gumpel  and  Tyler 
had  entered  into  such  an  agreement  as  supposed,  it  was  a  demonstration  that 
the  whole  thing  was  a  conspiracy. 

The  affluent  McLaughlin  did  not  see  fit  to  ever  go  back  to  his  post  as  law- 
clerk,  but  hastily  arranged  to  flee  the  country.  He  was  on  the  Honolulu 
steamer  before  Tyler  knew  of  his  success.  He  went  from  Honolulu  after  a 
very  short  stay,  to  Australia,  where  he  was  unmolested,  and  where,  a  few 
years  later,  he  died.  In  Honolulu  he  started  a  steam  laundry,  and  lost  the 
greater  part  of  his  fortune  in  the  venture. 

The  high-priced  "agreement"  was  exhibited  in  court,  but  when  Tyler 
declared  that  it  was  a  decoy,  and  pointed  to  its  face  for  proof.  General  Barnes 
did  not  long  question  it.  Tyler  was  indicted  for  obtaining  money  ($25,000) 
under  false  pretenses,  and  was  tried  in  the  Superior  Court  (Judge  T.  K.  Wil- 
son's department),  and  the  jury  disagreed,  standing  ten  for  acquittal.  This 
was  on  July  3.  1886.  On  a  second  trial,  the  jury  again  disagreed,  August  21, 
1886.  He  was  not  prosecuted  further.  He  received  no  part  of  the  money 
])aid  to  McLaughlin. 

On  the  24th  of  December,  1884.  Judge  Sullivan  rendered  his  decision  in 
favor  of  Sarah  Althea.  finding  that  the  alleged  marriage  contract  was  genuine. 


History  of  the  Bench  and  Bar  of  California.  179 

and  that  under  it  the  parties  had  been  married  since  August  25th,  1880;  that 
the  defendant  had  deserted  her,  and  that  she  was  entitled  to  a  divorce  and  to 
a  (h vision  of  the  community  property.  On  the  i6th  of  February,  1885,  the 
same  court  made  an  order  directing  the  defendant  to  pay  the  plaintiff  before 
the  9th  of  ]\Iarch,  alimony  in  the  sum  of  $7,500,  and  the  further  sum  of  $2,500 
per  month.  It  was  also  ordered  that  the  defendant  pay  counsel  fees  as 
follows : 

To  Tyler  &  Tyler,  $20,000;  to  George  Flournoy,  $10,000;  to  Walter  H. 
Levy,  $10,000;  to  David  S.  Terry,  $10,000;  and  R.  P.  Clement,  $5.000 — all 
these  being  plaintiff's  attorneys. 

Sharon  appealed  from  the  judgment,  at  first  without  asking  for  a  new 
trial,  confident  that  the  findings  did  not  support  the  judgment.  Judge  Sullivan 
having  found  among  other  things  that  defendant  never  introduced  plaintiff 
as  his  wife,  nor  spoke  of  her  as  such  in  the  presence  of  other  persons;  that 
plaintiff  never  introduced  defendant  as  her  husband,  nor  spoke  to  nor  of  him 
to  other  persons  in  his  presence  as  her  husband ;  that  the  parties  were  never 
reputed  among  their  mutual  friends  to  be  husband  and  wife,  nor  was  there 
at  any  time  any  mutual,  open  recognition  of  such  relationship  by  the  parties, 
nor  any  public  assumption  by  the  parties  of  the  relation  of  husband  and 
wife. 

The  Supreme  Court,  however,  held  that  the  findings  supported  the  judg- 
ment (75  Cal.,  I ). 

Sharon  also  appealed  from  the  order  allowing  alimony  and  counsel  fees. 
The  Supreme  Court  modified  Judge  Sullivan's  order  by  reducing  the  $7,500 
and  vS2,500  respectively  to  $1,500  and  $500.  and  entirely  denied  all  counsel 
fees  by  re\-ersing  the  order  on  that  point. 

This  decision  was  rendered  on  the  31st  of  January,  1888.  It  was  written 
by  Justice  McKinstry,  and  Chief  Justice  Searls  and  Justices  Temple  and  Pat- 
erson  concurred.     Justices  Thornton,  McFarland  and  Sharpstein  dissented. 

Immediately  after  this  decision  the  heirs  of  Sharon  (who  had  died 
November  13,  1885)  placed  this  litigation  so  far  as  they  were  concerned,  in 
the  hands  of  William  F.  Herrin  as  their  attorney,  and  he  thereafter  C(^n- 
tinued  in  charge  of  the  case  until  the  conclusion  of  this  remarkable  litigation, 
as  hereinafter  stated. 

Sharon  had  in  due  time  made  his  motion  for  a  new  trial  in  Judge  Sulli- 
van's court,  and  while  it  was  pending  he  died,  November  13.  1885.  It  was 
overruled  on  the  4th  day  of  October.  1886.  the  executor  of  the  will  being 
substituted  in  his  place  and  perfecting  an  appeal  both  from  the  judgment  and 
from  the  order  denying  a  new  trial. 

Pending  this  last  appeal,  the  executor,  F.  W.  Sharon,  commenced  a  suit 
in  the  United  States  Circuit  Court  against  David  S.  Terry  and  Sarah  .\lthea 
Terrv  to  revive  the  old  suit  in  e(|uity  which  William  Sharon  had  instituted 
on  the  3d  of  October,  1883. 

Judge  Terry  had  married   Sarah   .\lthca  at   Stockt(Mi.  January   7.    1886. 


180  History  of  the  Bench  and  Bar  of  California. 

This  last  suit  by  the  executor  against  Terry  and  wife  was  filed  on  the  12th 
of  March,  1888.     Wm.  F.  Herrin  was  the  plaintiff's  attorney. 

Just  one  month  later  Francis  G.  Newlands,  as  trustee  named  in  a  trust 
deed  which  William  Sharon  had  executed  nine  days  before  his  death  (convey- 
ing his  vast  estate  in  trust  for  his  heirs),  also  brought  a  like  suit  in  the  same 
court  to  revive  the  original  action,  the  defendants  being  David  S.  Terry  and 
Sarah  Althea  Terry;  Wm.  F.  Herrin  being  the  attorney.  Stanly,  Stoney  & 
Hayes  appeared  as  attorneys  for  the  defendants  and  demurred.  The  demurrer 
was  overruled,  and  the  original  suit  of  William  Sharon  against  Sarah  Althea 
Hill  was,  by  order  entered  September  17,  1888,  revived  in  the  name  of 
Frederick  W.  Sharon,  as  executor,  against  David  S.  Terry  and  Sarah  Althea 
Terry. 

In  the  second  suit  to  revive  there  were  united  with  Mr.  Newlands  as 
complainants  Frederick  W.  Sharon  (both  as  executor  and  individually),  and 
William  Sharon's  heirs. 

In  these  cases  briefs  were  filed  on  the  Sharon  side  by  R.  S.  Mesick  and 
Samuel  M.  Wilson.  Wm.  F.  Herrin  submitted  a  written  argument  of  120 
printed  pages  octavo  on  that  side.  David  S.  Terry  made  an  oral  argument  in 
reply;  John  A.  Stanly  also. 

The  cases  came  before  the  Circuit  Court  for  determination  on  the  3d  of 
September,  1888,  the  judges  sitting  being  Field,  j^awyer  and  Sab'n.  The 
doctrine  was  laid  down  that  when  a  Federal  court  and  a  State  court  may 
each  take  jurisdiction  of  the  same  subject  matter  and  parties,  the  tribunal 
whose  jurisdiction  first  attaches  will  retain  it  to  the  final  determination  of 
the  controversy. 

The  opinion  was  written  by  Justice  Field.     We  quote : 

The  great  question  in  both  cases  was  the  genuineness  of  the  alleged  marriage 
contract — the  holder,  Sarah  Althea.  affirming  its  genuineness,  and  the  alleged  signer, 
William  Sharon,  asseverating  its  forgery.  Both  have  accompanied  their  statements 
with  their  oaths.  Both  have  not  testified  to  the  truth;  there  is  falsehood  on  one  side 
or  the  other.  Tlie  burden  of  proof  was  on  her,  and  the  learned  Judge  of  the  State 
Court  often  speaks  of  testimony  offered  by  her  in  terms  of  condemnation.  In  one 
passage  he  says  of  certain  testimony  given  by  her :  "This  is  unimportant,  except  that 
it  shows  a  disposition  which  crops  out  occasionally  in  her  testimony  to  misstate  or 
deny  facts  when  she  deems  it  of  advantage  to  her  case."  Again,  with  respect  to 
alleged  introductions  of  her  to  several  persons  as  the  wife  of  Sharon,  the  Judge  says : 
"Plaintiff's  testimony  as  to  these  occasions  is  directly  contradicted;  and  in  my  judg- 
ment her  testimony  as  to  these  matters  is  willfully  false."  As  to  her  testimony  that 
she  advanced  to  Sharon  in  the  early  part  of  her  acquaintance  $7,500,  the  Judge  says  : 
"This  claim,  in  my  judgment,  is  utterly  unfounded.  No  such  advance  was  ever  made." 
Again  the  court  said :  "The  plaintiff  claims  that  the  defendant  wrote  her  notes  at 
different  times  after  her  expulsion  from  the  Grand  Hotel.  If  such  notes  were  written, 
it  seems  strange  that  they  have  not  been  preserved  and  produced  in  evidence.  I  do 
not  believe  she  received  any  such  notes."  Again,  a  document  purporting  to  be  signed 
by  Sharon  was  produced  by  her,  explaining  why  she  was  sent  from  the  Grand  Hotel 
in  the  fall  of  1881,  and  also  acknowledging  that  the  money  he  was  then  paying  her 
was  part  of  $7,500  she  had  placed  in  his  hands.  The  production  of  the  paper  for 
inspection  was  vigorously  resisted,  but  it  was  finally  produced.  At  a  subsequent 
period,    when    called    for,    it    could    not    be    found.     Of    this    paper    the    Judge .  said : 


History  of  the  Bench  and  Bar  of  California.  181 

"Among  the  objections  suggested  to  this  paper  as  appearing  on  its  face,  was  one  made 
by  counsel  that  the  signature  was  evidently  a  forgery.  The  matters  recited  in  the 
paper  are,  in  my  judgment,  at  variance  with  the  facts  which  it  purports  to  recite. 
Considering  the  stubborn  manner  in  which  the  production  of  this  paper  was  at  first 
resisted,  and  the  mysterious  manner  of  its  disappearance,  I  am  inclined  to  regard  it 
in  the  light  of  one  of  the  fabrications  constructed  for  the  purpose  of  bolstering  up 
plaintiff's  case.     I  can  view  the  paper  in  no  other  light  than  as  a  fabrication." 

There  are  several  other  equally  significant  and  pointed  passages  expressive  of  the 
character  of  the  testimony  produced  in  support  of  her  case.  Of  what  she  attempted, 
the  Judge  thus  speaks :  "I  am  of  the  opinion  that  to  some  extent  plaintiff  has  availed 
herself  of  the  aid  of  false  testimony  for  the  purpose  of  giving  her  case  a  better  appear- 
ance in  the  eyes  of  the  court ;  but  sometimes  parties  have  been  known  to  resort  to 
false  testimony,  where,  in  their  judgment,  it  would  assist  them  in  prosecuting  a  lawful 
claim.  As  I  understand  the  facts  of  this  case,  that  was  done  in  this  instance."  Not- 
withstanding this  characterization  of  parts  of  her  testimony,  the  genuineness  of  the 
alleged  marriage  contract  rests  to  a  great  extent  upon  her  testimony.  It  would  seem 
that  the  learned  Judge  reached  his  conclusions  without  due  regard  to  a  principle  in 
the  weighing  of  testimony,  as  old  as  the  hills,  and  which  ought  to  be  as  eternal  in 
the  administration  of  justice,  that  the  presentation  knowingly  of  fabricated  papers,  or 
false  evidence,  to  sustain  the  story  of  a  party,  throws  discredit  upon  his  whole  state- 
ment. It  is  generally  deemed  equivalent  to  an  admission  of  the  falsity  of  the  whole 
claim. 

The  opinion  concluded  with  these  words : 

The  judgment  of  this  court  is  that  the  demurrers  in  both  cases  be  overruled;  that 
in  the  first  case  the  original  suit  of  William  Sharon  against  Sarah  Althea  Hill,  now 
Sarah  Althea  Terry,  and  the  proceedings  and  final  decree  therein  stand  revived  in 
the  name  of  Frederick  W.  Sharon  as  executor,  and  against  Sarah  Althea  Terry  and 
David  S.  Terry,  her  husband — the  said  executor  being  substituted  as  plaintiff  in  the 
place  of  William  Sharon,  deceased,  and  the  said  David  S.  Terry  being  joined  as 
defendant  with  his  wife,  so  as  to  give  to  the  said  plaintiff  executor  as  aforesaid  the 
full  benefit,  rights  and  protection  of  said  final  decree,  and  full  power  to  enforce  the 
same  against  the  said  defendants  at  all  times,  and  in  all  places,  and  in  all  particulars. 
In  the  second  case,  that  of  Francis  G.  Newlands,  trustee,  and  others,  beneficiaries 
under  the  trust  deed,  the  defendants  will  have  leave  to  answer  until  the  next  rule  day. 

During  the  reading  of  this  opinion  in  the  presence  of  a  large  audience,  in 
which  were  many  leading  members  of  the  bar  and  prominent  citizens,  occurred 
the  most  remarkable  instance  of  contempt  known  to  the  annals  of  American 
courts.  Statements  describing  it  were  subscribed  and  sworn  to  by  Joseph 
D.  Redding,  now  of  the  New  York  bar;  Alfred  Barstow,  and  J.  H.  Miller, 
well-known  lawyers;  General  Thomas  B.  Van  Buren  (a  name  widely  known)  ; 
W.  W.  Presbury,  John  Taggart,  N.  R.  Harris,  A.  L.  Parish,  deputy  I7nited 
States  marshals ;  Henry  Finnegass,  the  noted  government  detective ;  the  United 
States  marshal ;  Henry  Finnegas,  the  noted  government  detective ;  the  United 
Glennon,  police  officers,  who  were  sent  to  the  court-room  by  the  captain  of 
police,  I.  W.  Lees.  Officer  Bohen  prefaced  his  account  with  the  words  that 
Captain  Lees  had  said  that  he  had  just  learned  that  the  decision  was  about 
to  be  rendered  in  the  Sharon  case,  and  if  it  should  be  against  the  Terrys,  that 
they  (the  Terrys)  might  make  trouble,  and  that  we  should  render  any 
assistance  that  might  be  needed  in  preserving  the  peace.  We  need  only  give 
the  statement  of  Marshal  Franks,  which  was  substantially  corroborated  by 
all  the  others  just  named.     It  is  as  follows: 


182  History  of  the  Bench  and  Bar  of  Calif ornia. 

I  am  and  have  been  since  IMarch.  1886,  the  United  States  marshal  for  the  northern 
district  of  California.  On  the  3d  day  of  September,  1888,  I  was  standing  where  I 
usually  stand  in  the  court-room,  on  the  west  side  of  the  railing  enclosing  the  place 
where  the  clerk  of  the  court  sits,  while  Judge  Field  was  reading  his  decision  in  the 
case  of  Sharon  vs.  Terry,  Judge  Terry  and  his  wife,  Mrs.  Terry,  sat  at  the  large 
table  for  attorneys  in  front  of  the  railing  around  the  clerk's  desk,  they  being  to  m> 
left,  Mr.  Terry  being  farther  away  from  me.  Judge  Field  had  read  for  a  few  minutes 
when  I\Irs.  Terry  stood  up,  interrupting  the  court,  and  said,  among  other  things. 
"You  have  been  paid  for  this  decision."  Judge  Field  then  ordered  her  to  keep  her 
seat,  but  she  continued,  saying,  "How  much  did  Newlands  pay  you?"  Then  Judge 
Field,  looking  towards  me.  said,  "Mr.  Marsha',  remove  that  woman  from  the  court- 
room." Mrs.  Terry  said,  in  a  very  defiant  manner,  "You  cannot  take  me  from  *^he 
court."  I  immediately  stepped  to  my  left  to  execute  the  order,  passing  Judge  Terr\ 
to  where  Mrs.  Terry  was  standing.  Mrs.  Terry  immediately  sprang  at  me,  striking 
me  in  my  face  with  both  her  hands,  saying,  "You  dirty  scrub,  you  dare  not  remove 
me  from  this  court-room."  Mrs.  Terry  made  this  assault  upon  me  before  I  had 
touched  her.  I  immediately  moved  to  take  hold  of  her,  when  Judge  Terry  threw 
himself  in  my  way,  getting  in  front  of  me,  and  unbuttoning  his  coat,  said,  in  the  most 
defiant  and  threatening  manner,  "No  man  shall  touch  my  wife;  get  a  written  order," 
or  words  to  that  effect.  I  put  out  my  hands  towards  him,  saying,  "Judge,  stand  back ; 
no  written  order  is  required":  and  just  as  I  was  taking  hold  of  Mrs.  Terry's  arm. 
Judge  Terry  assaulted  me.  striking  me  a  hard  blow  in  the  mouth  with  the  right  fisl. 
breaking  one  of  my  teeth,  and  I  immediately  let  his  wife  go  and  pushed  him  back. 
He  then  put  his  right  hand  in  his  bosom,  while  at  the  same  time  Deputy  Parish, 
Detective  Finnegass  and  other  citizens,  caught  him  by  the  arms  and  pulled  him  down 
in  his  chair.  I  caught  hold  of  ]Mrs.  Terry  again.  Mr.  N.  R.  Harris,  one  of  my 
deputies,  coming  to  my  assistance,  and  we  took  her  out  of  the  court-room  into  my 
office,  she  resisting,  scratching  and  striking  me  all  the  time,  using  violent  language, 
denouncing  and  threatening  the  judges  and  myself,  claiming  that  I  had  stolen  her 
diamonds  and  bracelets  from  her  wrists,  and  calling  several  times  to  Porter  Ashe 
to  give  her  her  satchel,  I,  during  the  whole  time,  using  no  more  force  than  was  neces- 
sary, considering  the  resistance  made  by  her,  addressing  her  as  politely  as  possible. 
When  we  got  her  into  the  inner  room  of  my  office,  I  left  her  in  charge  of  Mr.  Harris, 
went  into  the  main  office,  saw  a  body  of  men  scuffling  at  the  door,  heard  Deputy 
Marshall  Taggart  say,  "If  you  attempt  to  come  in  here  with  that  knife,  I  will  blow 
your  brains  out."  I  said,  "What,  has  he  a  knife?"  Deputy  Farish  answered  and 
said,  "He  had  a  knife,  but  we  took  it  away."  I  then  took  hold  of  Judge  Terry,  and 
with  the  assistance  of  others,  pulled  him  in  the  main  office  and  shut  the  door.  I  had 
him  and  his  wife  placed  in  my  private  office  in  charge  of  Deputy  Marshals  Harris, 
Donnelly  and  Taggart.  I  then  went  into  the  court-room,  and  when  I  had  been  there 
but  a  short  time,  Mr.  Farish  came  in  and  said,  "Mrs.  Terry  wants  her  satchel,  which 
Porter  Ashe  has."  I  went  into  the  corridor  and  found  Mr.  Ashe  with  the  satchel.  I 
requested  him  to  hand  it  to  me;  at  first,  he  refused,  saying  that  it  was  Mrs.  Terry's 
private  property,  and  he  was  going  to  deliver  it  to  her.  I  told  him  she  was  my  pris- 
oner, and  her  effects  should  be  in  my  custody,  and  if  he  did  not  give  the  satchel  up  I 
would  place  him  under  arrest.  He  then  gave  it  to  me.  and  I  told  him  to  come  with 
me  into  my  office,  and  I  would  open  it  in  his  presence.  He  did  so.  and  I  opened  it 
and  took  therefrom,  a  self-cocking  41-calibre  Colt's  pistol,  with  five  chambers  loaded, 
the  sixth  being  empty;  after  which  I  delivered  the  satchel  to  Mrs.  Terry.  Mr.  Ashe 
then  said  he  did  not  intend  to  give  the  satchel  to  her  with  the  pistol  in  it.  I  append 
hereto  a  photograph  of  the  bowie-knife  taken  from  the  hands  of  Judge  Terry  by  a 
citizen,  with  the  assistance  of  my  officers,  and  handed  to  me  by  the  citizens,  and  also 
a  photograph  of  the  pistol  taken  from  Mrs.  Terry's  satchel,  both  photographs  exhibit- 
ing the  actual  size  of  these  weapons.  All  this  occurred  in  the  Appraisers'  Building, 
corner  of  Washington  and  Sansome  streets,  in  the  presence  of  and  within  the  hearing 
of  the  United   States  Judges,  while  they  were  delivering  the  decision. 

I  noticed  Judge  Terry  and  his  wife  during  the  reading  of  the  opinion,  and,  as  some 


History  of  the  Bench  and  Bar  of  California.  183 

points  were  being  decided  against  them,  I  carefully  observed  them  before  I  com- 
menced to  remove  Mrs.  Terry  from  the  court-room,  and  there  was  no  word  or  act 
that  I  observed  on  the  part  of  Judge  Terry  to  restrain  his  wife  in  her  conduct,  or 
to  take  her  from  the  court-room,  or  to  assist  me  in  doing  so.  On  the  contrary.  Judge 
Terry  resisted  me  with  violence,  as  I  have  stated. 

After  Judge  Terry  was  placed  in  my  inner  office,  as  I  have  above  stated,  he  used 
very   abusive   language   concerning   the   Judges,    referring   to   Judge    Sawyer   as   "that 

corrupt  son  of  a  ,"  and  also  saying,  "Tell  that  bald-headed  old  son  of  a 

Field  that  I  want  to  go  to  lunch" ;  and  after  the  order  was  made  committing  him  six 
months  for  contempt,  Judge  Terry  said:  "Field  thinks  that  when  I  get  out,  he  will 
be  away,  but  I  will  meet  him  when  he  comes  back  next  year,  and  it  will  not  be  a 
very  pleasant  meeting  for  him."  Mrs.  Terry  said  several  times  that  she  would  kill 
both  Judges   Field  and   Sawyer. 

J.  C.  FRANKS, 

Subscribed  and  sworn  to  before  me  this  17th  day  of  September,  A.  D.  1888. 

F.  D.   MONKTON. 
Commissioner  U.   S.    Circuit   Court. 

Judge  Terry's  statement  of  what  occurred  is  as  follows : 

I  made  no,  resistance  to  any  order,  and  the  record  is  a  lie.  I  was  sitting  down 
when  my  wife  interrupted  Judge  Field,  and  when  he  said,  "Marshal,  remove  the 
woman  from  the  court-room,"  I  rose  to  take  her  out.  As  the  marshal  came  towards 
me  I  said,  "Don't  touch  her.  I  will  take  her  out  of  the  court-room."  Marshal 
Franks  yelled  out,  "I  know  my  business,"  and  grabbing  me  by  the  lapels  of  my  coat, 
tried  to  force  me  back  into  my  chair.  Two  others  seized  me  by  the  shoulders  and 
forced  me  down.  Again  I  said,  "I  will  take  her  out."  The  men  who  were  bending 
me  back  hurt  me,  and  I  wrenched  myself  free  and  struck  at  Franks,  the  blow  hitting 
him  in  the  mouth.  I  struck  at  hi.ni  because  he  assaulted  me  without  any  right  or 
order  of  the  court.  By  that  time  ihey  had  dragged  Mrs.  Terry  out  of  the  court- 
room. Then  their  duty  ended.  They  had  obeyed  the  order  brutally.  The  order  was 
to  take  her  out  of  the  court-room,  and  she  had  been  taken  out.  But  that  was  not 
enough.  They  dragged  her  to  a  room  and  shut  the  door.  I  heard  her  scream  and 
went  to  her.  I  was  a  free  man  and  she  legally  a  free  woman.  I  had  a  right  to  be 
by  her  side.  They  had  no  order  to  lock  her  up  or  keep  me  from  her.  But  they 
barred  the  door,  and  to  scare  them  away  I  drew  my  knife.  I  told  them  I  did  not 
want  to  hurt  any  of  them,  but  they  pulled  out  their  pistols.  I  could  have  killed  half 
a  dozen  of  them  if  I  had  wanted  to.  Two  of  them  had  pistols  pointed  at  me.  Some 
one  said,  "Let  him  in  if  he  will  give  u\)  his  knife."  I  said,  "Certainly,"  and  gave  up 
my  knife.  They  did  not  take  it  from  me.  One  of  them,  a  man  named  Taggart,  said 
in  my  presence  that  he  would  have  shot  me  if  ^  had  not  stopped.  I  told  him  that 
he  would  not  dare  to  shoot  me,  and  that  if  he  wanted  to  shoot  he  would  have  a 
chance.  Then  he  said  he  did  not  want  to  have  any  trouble  with  me.  and  I  told  him 
not  to  brag  after  it  was  all  over,  about  what  he  would  have  done.  The  fact  is,  the 
court  was  frightened  of  something,  and  had  the  room  full  of  deputies  and  fighters  of 
all  kinds  who  wanted  a  chance  to  make  a  showing  of  bravery,  and  after  it  was  all 
over  Judge  Field  lied  in  the  record.  I  want  to  get  him  on  the  witness-stand  to  repeat 
his  story,  and  then  we  will   sec  if  there  is  any  law  against  perjury. 

The  coiu't  convened  at  2  o'clock  i'.  M.  of  the  same  day,  Septeniher  ^^,  iSSS. 

The  defendants  were  not  present.      .\n   four  judges  occupied  the  hench.  and 

Judge  Field  at  once  read  an  order  adjtidging  the  defendants  guihy  of  con- 

tem])t,  and   directing  ihcir  iniijrisonnienl   in   the   Alameda  county  jaih   Terry 

for  six  months,  and  Mrs,  Terry  for  thirty  days.     They  were  placed  in  that 

jail  hy  the  marshal  at  seven  o'clock  on  the  evening  of  the  same  day.  and  served 

out  their  sentences.      A  petition  of  Judge  'Perry  just  two  weeks  afterwards  for 

a  revocation  of  the  orders  of  ini])risonnient,  and  which  he  had  heen  inllncnced 


184  History  of  the  Bench  and  Bar  of  California. 

to  make  by  ex-Supreme  Judge  Heydenfeldt,  was  denied.  It  was  on  the  hear- 
ing of  this  petition  that  the  sworn  statements  of  eye-witnesses  before  referred 
to,  were  read. 

We  give  this  on  the  authority  of  Mr.  Wagstaff : 

J.  H.  O'Brien,  of  Stockton,  an  old-time  friend,    visited  Terry  in  the  Alameda  jail. 
Terry  said:     "When  I  get  out  of  jail,   I  will  horsewhip  Judge  Field.     He  will  not 
dare  to  come  back  to  California,  but  the  earth  is  not  big  enough  to  hide  him  from  me." 
Judge  Field  was  required  by  law  to  "come  back  to  California,"  in  the 
sphere  of  his  high  office.     These  quoted  words  were  from  a  man,  admittedly 
honest  and  brave,  who  ''never  made  idle  threats." 

Judge  Field  did  come  back  to  California,  and  for  the  same  reason  that 

always  brought  him — to  hold  court.     Judge  Terry's  biographer  is  to  be  quoted 

again  now,  as  to  the  conduct  of  the  defendants  after  their  release  from  jail : 

On  one  occasion,  as  Judge  and  Mrs.  Terry  were  on  their  way  from  Los  Angeles, 

where  he  had  been  attending  the  sessions  of  the  United  States  Circuit  Court,  they 

happened  upon  the  same  train  which  Judge  Lorenzo  Sawyer  was.     During  the  trip 

Mrs.  Terry  assaulted  Judge  Sawyer  by  pulling  his  hair.     This  act  was  witnessed  by 

one  of  the  Superior  Judges  of  Los  Angeles,  who  was  a  passenger  on  the  train,  and 

it  was  reported  to  the  authorities  at  Washington,  and  noted  in  connection  with  otl^r 

threats  which  had  been  made  against  Field  and  Sawyer. 

*        *        *        * 

Letters  passed  between  the  United  States  district  attorney  and  the  attorney- 
general,  which  finally  resulted  in  an  order  instructing  the  United  States  marshal  to 
provide  a  body-guard  to  protect  Justice  Stephen  J.  Field  during  his  sojourn  on  the 
Pacific  Coast  from  threatened  assaults  and  insults  by  Judge  Terry.  Sufficient  evidence 
had  accumulated  (the  italics  are  ours — Editor)  to  make  these  precautionary  measures 
necessary,  and  the  greatest  secrecy  was  observed  in  order  to  prevent  Terry  from  being 
provided  with  any  knowledge  of  their  existence. 

Mr.  Wagstaff  thinks  that  the  authorities  ought  to  have  "advised"  Judge 
Terry  of  what  they  were  about. 

The  letter  of  instructions  from  the  attorney-general  to  the  marshal  was  as 
follows : 

Department  of  Justice, 
Washington,  D.  C,  April  27,  1889. 
John  C.  Franks,  U.  S.  Marshal,  San  Francisco,  Cal. — 

Sir:  The  proceedings  which  have  heretofore  been  had  in  connection  with  the 
case  of  Mr.  and  Mrs.  Terry  in  your  United  States  Circuit  Court  have  become  matters 
of  notoriety,  and  I  deem  it  my  duty  to  call  your  attention  to  the  propriety  of  exercis- 
ing unusual  caution  in  case  further  proceedings  shall  be  had  in  that  case,  for  the  pro- 
tection of  his  honor,  Justice  Field,  or  whosoever  may  be  called  upon  to  hear  and  deter- 
mine the  matter.  Of  course,  I  do  not  know  what  may  be  the  feelings  or  purposes  of 
Mr.  and  Mrs.  Terry  in  the  premises,  but  many  things  that  have  happened  indicate  that 
violence  on  their  part  is  not  impossible.  It  is  due  to  the  dignity  and  independence 
of  the  court  and  the  character  of  its  Judges  that  no  efifort  on  the  part  of  the  govern- 
ment shall  be  spared  to  make  them  feel  entirely  safe  and  free  from  anxiety  in  the 
discharge    of    their    duties. 

You  will  understand,  of  course,  that  this  letter  is  not  for  the  public,  but  to  put 
you  on  your  guard.  It  will  be  proper  for  you  to  show  it  to  the  district  attorney,  if 
deemed  best. 

W.  H.  MILLER,  Attorney-General. 
Mr.  Wagstaff,  in  speaking  of  the  letter  of  Attorney-General  Miller  to 
Marshal  Franks,  remarks  that  the  attorney-general  was  a  stranger  to  the  true 


History  of  the  Bench  and  Bar  of  California.  185 

character  of  the  man  (Terry) — which  seems  to  be  an  intimation  that  the 
official  order  for  Judge  Field's  protection  was  hardly  necessary.  But  he  adds, 
in  the  very  next  sentence  but  one,  that  the  attorney-general  "was  made  aware 
of  the  fact  that  Terry  never  made  idle  threats  and  was  fully  aware  of  the 
fact  that  it  was  his  duty  to  protect  the  judiciary" ;  which  is  a  demonstration 
that  in  writing  his  letter  to  the  marshal  the  attorney-general  did  just  what 
he  ought  to  have  done. 

We  will  let  Mr.  WagstafT  lead  the  reader  up  to  the  catastrophe : 

Marshal  Franks  appointed  David  Neagle  a  deputy  United  States  marshal,  and 
assigned  him  to  the  position  of  body-guard  to  Justice  Field  during  his  sojourn  on 
the  Pacific  Coast.  Neagle  had  the  reputation  of  being  a  rash,  brave  man,  having 
figured  as  a  hero  in  Arizona  among  the  "toughs"  of  that  territory  who  have  given 
it  an  unenviable  notoriety.  He  had  also  gained  some  notoriety  in  San  Francisco 
among  the  politicians.  He  accepted  the  position  and  accompanied  Justice  Field  to 
Los  Angeles  on  the  loth  day  of  August,  1889,  where  Field  held  court  in  connec- 
tion with  Judge  Ross.  On  the  14th  of  August,  Field  left  Los  Angeles  for  San  Fran- 
cisco with  Neagle.  As  the  train  passed  Fresno,  Judge  and  Mrs.  Terry  went  aboard 
for  the  purpose  of  being  present  at  the  hearing  of  the  cases  against  them  in  the 
Circuit  Court.  They  were  not  aware  of  the  presence  of  Judge  Field  on  the  train, 
believing  he  had  passed  through  the  day  before.  The  train  passed  Fresno  at  2 :30 
A.  M.,  and  there  being  no  room  in  the  sleeping  car,  Judge  and  Mrs.  Terry  took  seats 
in  a  regular  passenger  car.  Neagle  was  on  the  alert,  and  saw  the  Terrys  when  they 
took  the  train.  He  immediately  informed  Justice  Field  of  the  fact,  and  when  the 
train  arrived  at  Merced  he  telegraphed  for  an  officer  to  be  on  hand  in  case  trouble 
should  occur. 

When  Judge  Terry  was  at  the  depot  at  Fresno,  just  before  the  train  arrived,  his 
former  partner,  W.  D.  Grady,  handed  him  a  pistol,  saying,  "Take  this,  Judge ;  you 
may  need  it."  "No,"  said  the  Judge,  "I  have  no  use  for  a  pistol ;  I  never  carry  one." 
"Well,"  said  Grady,  "I  want  you  to  take  it ;  you  may  need  it,  for  I  feel  I  would  never 
see  you  again."  Terry  took  the  pistol  and  gave  it  to  his  wife,  just  as  they  stepped 
aboard  the  train. 

At  Modesto,  Sheriff  R.  B.  Purvis  took  the  train,  but  not  at  the  suggestion  of 
Neagle,  or  having  in  his  keeping  the  fact  of  the  presence  of  the  parties  upon  whom 
so  much  anxiety  centered.  The  train  stopped  at  Lathrop  for  breakfast,  and  Justice 
Field,  although  having  been  made  aware  of  the  presence  of  Judge  and  Mrs.  Terry, 
and  having  been  warned  by  Neagle,  who  proposed  having  breakfast  served  in  the 
buffet,  concluded  to  take  breakfast  at  the  station,  remarking  that  he  had  eaten  at 
the  station  before,  and  had  gotten  a  good  meal. 

Judge  Field  left  the  car,  and,  in  company  with  his  body-guard,  was  taken  to  a 
seat  at  a  table  near  the  center  of  the  dining-room,  facing  toward  the  door.  The 
dining-room  is  quite  large,  having  three  rows  of  five  tables  in  each  row.  Field  occu- 
pied a  chair  at  the  corner  of  the  third  table  in  the  middle  row,  and  Neagle  next  on 
his  left.  Soon  after  they  were  seated.  Judge  and  Mrs.  Terry  entered,  and  the  steward 
showed  them  to  seats  at  a  table  at  the  rear  end  of  the  dining-room  m  the  same  row. 
In  going  to  this  table  they  passed  down  the  aisle  in  front  of  Judge  Field.  Terry 
did  not  observe  Field  as  he  passed,  but  Mrs.  Terry  saw  him,  and,  without  taking  a 
seat,  she  spoke  to  her  husband  in  an  undertone,  and.  turning  about,  passed  out  of 
the   dining-room    toward    the    cars. 

Observing  these  movements,  T.  M.  Stackpole.  one  of  the  proprietors  of  the  station 
eating  house,  knowing  all  the  parties  and  the  bitter  feud  existing  between  the  Terrys 
and  Justice  Field,  and  also  the  vindictive  and  irrepressible  character  of  Mrs.  Terry. 
walked  to  where  Judge  Terry  was  sitting,  and  said :  "Mr.  Terry,  I  hope  Mrs.  Terry 
will  not  be  so  indiscreet  as  to  create  a  disturbance  in  the  dining-room." 


186  History  of  the  Bench  and  Bar  of  California. 

Judge  Terry,  who  was  until  this  time  unconscious  of  the  presence  of  Justice 
Field,  inquired  what  he  meant. 

"Justice  Field  is  in  the  room."  he  replied,  "and  I  feared  Mrs.  Terry  would  create 
a  disturbance,  as  she  has  gone  out  to  the  car  for  some  purpose.  Do  you  think  she 
will  do  so?" 

"I  think  it  very  likely,"  replied  Terry.  "You  had  lietter  watch  her  at  the  door 
and  prevent  her  from  again  entering  the  room." 

Mr.  Stackpole  did  as  Terry  suggested,  and  placed  two  men  at  the  door  to  inter- 
cept Mrs.  Terry,  should  .she  again  seek  to  enter  the  dining-room,  and  as  he  walked 
to  his  place  at  the  door  leading  from  the  dining-room  to  the  bar-room,  Judge  Terry 
arose  from  his  seat  and  walked  toward  the  door  as  though  he  were  following  his 
manner  was  such  that  no  one  supposed  that  he  meditated  any  disturbance,  and  even 
Neagle.  who  was  on  the  alert,  did  not  realize  that  he  was  about  to  make  an  assault 
on  Field.  He  passed  Neagle,  but  when  he  arrived  at  a  point  immediately  behind 
Field,  he  stopped,  turned  about,  and  stooping  down  over  him,  deliberately  struck 
him  on  the  right  cheek  with  the  palm  of  his  hand,  and  then  quickly  struck  with  his 
left  hand,  which  hit  Field  on  the  side  of  the  head,  as  he  had  turned  his  head  to  look 
up.  Neagle  was  quick  to  act,  and  without  rising  from  his  seat,  drew  his  pistol  with 
his  left  hand,  holding  the  barrel  in  his  right  to  be  sure  of  his  aim,  and  shot  Terry, 
inflicting  a  mortal   wound. 

Judge  Terry  expired  at  once. 

Nearly  four  years  after  Sharon's  death,  the  appeal  which  he  had  taken 
from  Judge  Sullivan's  order  denying  a  new  trial,  was  heard. 

On  that  appeal  our  State  Supreme  Court  unanimously  held  against  the 
plaintiff  and  reversed  Judge  Sullivan's  judgment,  Jndge  Works  wrote  the 
opinion.  This  is  to  he  found  in  the  California  Reports,  Volume  79,  at  page 
638.  The  court  dwelt  particularly  upon  the  letters  written  by  the  plaintiff  to 
Sharon,  and  upon  some  of  her  acts — for  instance  : 

After  the  plaintiff  had  been  expelled  from  the  Grand,  and  .ong  after  she  had  been 
denied  access  to  the  defendant's  room,  we  find  her  begging  Ki,  the  defendant's  Chinese 
servant,  to  admit  her  to  Mr.  Sharon's  room,  her  object  being  to  work  a  charm  on  the 
senator  by  sprinkling  a  black  powder  around  his  chair,  putting  some  white  powder  in 
his  bottles  of  liquor,  left  open  on  the  side-board,  and  also  putting  something  between 
the  sheets  of  his  bed.  For  permission  to  do  this,  she  paid  the  Chinaman  five  dollars, 
and  promised  him  one  thousand  dollars  more,  and  forty  dollars  per  month  for  his 
life,  in  case  she  succeeded  in  working  the  desired  charm  on  the  senator.  She  desired 
to  repeat  these  performances  in  the  defendant's  room.  Ki  became  alarmed  at  the 
possibility  of  his  master's  liquor  being  poisoned ;  told  Mr.  Sharon,  upon  his  return 
home  from  Belmont  next  day,  what  had  occurred,  and  refused  to  allow  the  plaintiflf 
to  return  for  the  purpose  of  repeating  her  powder  performances,  and  thereby  perfect- 
ing the  charm. 

*         *         *         * 

At  one  time  she  secreted  herself  and  saw  Sharon  and  another  woman  undress 
and  go  to  bed  together  in  his  room,  and  afterward  told  it  as  a  laughable  joke,  and  this 
at  a  time  when   she  testified  she  was  his  wife. 

Again,  at  another  time,  evidently  when  she  began  to  think  it  necessary  that  she 
should  have  some  proof  of  her  intimacy  with  him,  she  secreted  a  young  girl,  not  yet 
twenty  years  of  age.  and  who  seems  then  to  have  become  a  kind  of  confidante  of 
hers,  behind  the  bureau  in  his  room,  to  see  Sharon  and  herself  go  to  bed  together 
and  hear  what  was  said,  and  the  girl  remained  there  until  they  had  retired  and  he 
had  fallen  asleep,  and  then  crept  out  of  the  room. 

The  defendant  testified  positively  that  the  relation  of  husband  and  wife  never 
existed  between  him  and  the  plaintifif;  that  she  was  his  mistress,  for  which  he  agreed 
to  and  did  pay  her  five  hundred  dollars  a  month  ;  that  the  alleged  marriage  contract 


History  of  the  Bench  and  Bar  of  California.  187 

was  never  signed  by  him,  and  that  he  never  addressed  a  letter  to  her  as  "My  Dear 
Wife,"  and  there  was  evidence  strongly  tending  to  show  that  the  contract  an(^ 
addresses   to  these  letters  were   forgeries. 

It  seems  to  us  that  this  evidence  shows  conclusively  that  these  parties  did  not  live 
and  cohabit  together  "in  the  way  usyal  with  married  people."  They  did  not  live  or 
cohabit  together  at  all.  They  had  their  separate  habitations  in  different  hotels.  Her 
visits  to  his  room  and  his  visits  to  hers  were  occasional,  and  apparently  as  visitors. 
They  had  no  common  home  or  dwelling  place.  This  did  not  constitute  a  living 
together  or  cohabitation.  (Yardley's  Estate,  75  Pa.  St..  207;  Ohio  vs.  Connoway 
Township,  Tapp.  58.)  Their  acts  and  conduct  were  entirely  consistent  with  the 
meretricious  relation  of  man  and  mistress,  and  almost  entirely  inconsistent  with  the 
relation  of  husband  and  wife. 

This  decision  of  the  Supreme  Court  was  rendered  on  Jul}-  17,  1889 — 
about  a  month  before  the  death  of  Judge  Terry. 

On  the  loth  of  March,  1892,  Mrs.  Terry,  the  widow  of  Judge  Terry,  was 
adjudged  insane  by  the  Superior  Court  of  San  Francisco,  and  was  committed 
to  the  State  Asykmi  for  the  Insane  at  Stockton.  She  is  still  a  patient  at  the 
institution,  and  her  malady,  which  was  at  first  acute  mania,  has  become  chronic. 

Upon  the  going  down  of  the  remittitur  from  the  original  judgment  grant- 
ing the  divorce  and  from  the  order  granting  alimony  and  counsel  fees,  the 
plaintiff  obtained  judgment  in  the  Superior  Court  against  the  executor  of 
William  Sharon,  for  $6,614  alimony,  this  being  according  to  the  modification 
by  the  Supreme  Court  of  the  original  order  granting  alimony.  From  this 
second  judgment  the  Sharon  executor  took  an  appeal,  upon  wdiich  the  Supreme 
Court  reversed  the  judgment  upon  the  ground  that  the  decree  of  the  United 
States  Circuit  Court,  which  had  first  obtained  jurisdiction  of  the  parties,  was 
controlling,  and  that  the  plaintiff  could  not  enforce  her  claim  of  marriage  and 
for  property  rights  incident  thereto  upon  the  marriage  contract,  which  had 
been  adjudged  by  the  Circuit  Court  to  be  a  forgery  (84  Cal.  424)  ;  so  that,  as 
a  result  of  this  extraordinary  litigation,  Mrs.  Terry  never  succeeded  in  recov- 
ering a  single  cent  from  U'illiam  Sharon  or  his  estate. 

The  effect  of  the  second  and  last  decision  of  the  State  Supreme  Court, 
from  which  we  have  quoted  passages,  was  to  reojjcn  the  whole  case,  so  far 
as  the  jurisdiction  of  the  State  courts  was  concerned.  Sharon  had  asked  for 
a  new^  trial  in  the  case  which  Superior  Judge  Sullivan  had  decided  against 
him.  and  a  new  trial  was  now  granted. 

The  executor  of  William  Sharon.  Frederick  W.  Sharon,  appeared  as  his 
representative  in  the  suit,  and  filed  a  supplemental  answer.  The  case  was 
tried  in  the  Superior  Court,  before  Judge  James  \\.  Shaflcr.  in  July.  t8qo, 
and  on  the  4th  of  August  following  the  Judge  lilcd  his  findings  and  conclu- 
sions of  law  as  follows : 

That  the  plaintiff  and  William  Sharon,  deceased,  did  n(.t.  on  the  _'5th  of 
August,  1880,  or  at  any  other  time,  consent  to  intermarry  or  become,  by 
mutual  agreement  or  otherwise,  hus1)an(l  and  wife:  nor  did  they,  theroalter, 
or  at  any  time,  live  or  cohabit  together  as  husb;nid  and   wife,  or  mutually 


188  History  of  the  Bench  and  Bar  of  California. 

or  otherwise  assume  marital  duties,  rights,  or  obhgation ;  that  they  did  not, 
on  that  day  or  at  any  other  time,  in  the  city  and  county  of  San  Francisco,  or 
elsewhere,  jointly  or  otherwise,  make  or  sign  a  declaration  of  marriage  in 
writing  or  otherwise;  and  that  the  declaration  of  marriage  mentioned  in  the 
complaint  was  false,  counterfeited,  fabricated,  forged  and  fraudulent,  and, 
therefore,  null  and  void.  The  conclusion  of  the  court  was  that  the  plaintiff 
and  William  Sharon  were  not,  on  August  25,  1880,  and  never  had  been  hus- 
band and  wife,  and  that  the  plaintiff  had  no  right  or  claim,  legal  or  equitable, 
to  any  property  or  share  in  any  property,  real  or  personal,  of  which  William 
Sharon  was  the  owner  or  in  possession,  or  which  was  then  or  might  thereafter 
be  held  by  the  executor  of  his  last  will  and  testament,  the  defendant,  Frederick 
W.  Sharon.  Accordingly,  judgment  was  entered  for  the  defendant.  An 
appeal  was  taken  from  that  judgment  to  the  Supreme  Court  of  California, 
and  on  the  5th  day  of  August,  1892,  Sarah  Althea  Terry  having  become 
insane  pending  the  appeal,  and  R.  Porter  Ashe,  Esq.,  having  been  appointed 
and  qualified  as  the  general  guardian  of  her  person  and  estate,  it  was  ordered 
that  he  be  substituted  in  the  case,  and  that  she  subsequently  appear  by  him  as 
her  guardian.     In  October  following  the  appeal  was  dismissed. 

(In  connection  with  this  article  read  the  closing  paragraphs  of  the  sketch 
of  Judge  Field.) 

THE  EDITOR. 


THE    CALIFORNIA 
CODE    OF    LAWS 


<By   THE    EDITOR 


I 


I 


a&afeejaejaifcefeajaBJboje 


HISTORY  of  the 
BENCH  anrf  BAR 
of  CALIFORNIA 


e^o^i_i. 


The  CALIFORNIA  CODE  of  LAWS 


In  i860,  Hon.  P.  C.  Johnson,  of  Amador,  now  deceased,  introduced  into 
the  assemljly  a  hill  to  "provide  for  the  preparation  of  a  Code  of  Laws  for  this 
State."     It  did  not  pass  either  house. 

On  January  7th.  1863,  Governor  Stanford,  in  his  annual  message,  recom- 
mended codification.  On  Decemher  9th  of  the  same  year.  Governor  Stan- 
ford in  his  second  annual  message  again  referred  to  this  subject.  He  urg^ed 
"the  absolute  necessity"  of  codification,  and  called  for  the  passage  of  the 
law  providing  for  the  appointment  of  a  commission  to  codify  the  laws. 

Attorney-General  John  G.  McCullough,  in  his  official  report  filed  Novem- 
ber 6,  1865,  argued  against  any  attempt  to  codify,  "unless  the  best  talent 
be   employed." 

On  April  4,  1870,  Governor  Haight  approved  an  Act  passed  at  that 
session  for  a  commission  to  revise  the  laws.  This  had  been  introduced  into 
the  assembly  by  Hon.  T.  A.  Slicer,  of  Nevada  county. 

Creed  Haymond  has  been  called  "The  Father  of  the  Codes"  of  California. 
He  was  chairman  of  the  code  commission  of  this  State,  and,  with  his  asso- 
ciates prepared  the  first  complete  code  of  laws  ever  adopted  b\-  any  State 
in  the  Union,  or.  in  fact,  by  any  English-speaking  people.  The  Practice 
Acts,  introduced  by  Judge  Field  early  in  the  fifties,  were  derived  from  those 
of  New  York,  but  to  this  day  New  York  has  not  adopted  a  civil  code.  A 
bill  to  accomplish  this  purpose  has  passed  the  legislature  of  that  State  several 
times,  even  as  recently  as  t888.  but  in  each  case  a  veto  has  prevented  the 
adoption.     Our  codes  went  into  effect  on  January  i,  1873. 

There  were  two  other  members  of  the  code  commission.  J.  C.  lUuxh 
and  Charles  Lindley.  the  latter  of  whom  resigned  his  position,  but  it  was 
well  understood  that  the  work,  which  occupied  nearly  three  years,  was  almost 
entirely  done  by  Mr.  Haymond.  a  great  iiart  of  it  being  in  his  own  hand- 
writing. 

In  replv  to  a  political  opponent  who  had  depreciated  the  codes.  Mr.  llay- 
mond   said:     "He  does  me  much   honor   in   the  assertion   that   Creed    Hay- 


192  History  of  the  Bench  and  Bar  of  California. 

mond  made  the  codes.  They  are  the  growth  of  the  world's  civiHzation." 
Incidentally,  in  the  same  speech,  he  gave  information  as  to  the  adoption  of 
the  codes,  which  should  be  an  interesting  part  of  our  State  history.  ''Before 
their  adoption,"  he  said,  "the  codes  w^ere  submitted  to  an  advisory  board 
selected  by  Governors  Haight  and  Booth,  consisting  of  Charles  A.  Tuttle 
of  Placer,  and  Sidney  L.  Johnson  of  San  Francisco.  Mr.  Tuttle,  a  lawyer  of 
learning  and  large  experience — the  reporter  of  the  decisions  of  our  Supreme 
Court,  (he  died  in  1887) — was  particularly  qualified  for  the  position,  and 
gave  to  the  discharge  of  his  duties  on  the  board  his  undivided  attention.  Mr. 
Johnson,  a  ripe  scholar,  learned  both  in  the  civil  and  common  law,  brought 
to  his  labors  a  mind  rich  in  accomplishments,  exact  and  critical.  After  a 
careful  examination  of  the  work  they  gave  it  their  unqualified  approval  and 
endorsement   and    heartily   recommended   its   adoption. 

The  Code  of  Civil  Procedure,  and  the  Civil  and  Penal  Codes,  were  sub- 
mitted before  their  adoption  to  a  joint  committee  of  the  two  houses  of  the 
legislature,  composed  of  W.  W.  Pendegast,  James  T.  Farley,  James  Van 
Ness,  A.  Comte,  Jr.,  C.  G.  W.  French  and  F.  E.  Spencer,  who  gave  to  these 
codes  a  full  examination,  and  in  elaborate  reports  their  approval  and  indorse- 
ment. 

An  extract  from  one  of  these  reports  is  here  given : 

"Your  committee  believe  that  the  system  of  law  embodied  in  the  Codes 
prepared  by  the  Revision  Commission  is  more  perfect  than  that  prepared  by  any 
other  State :  and  it  would  be  well  for  the  honor  of  California  if  by  the  action 
of  the  present  legislature  it  should  adopt  this  great  work,  thus  setting  an 
example  which  will  be  speedily  followed  by  all  her  sister  States,  adding  new 
laurels  to  the  fame  she  has  already  justly  acquired,  and  at  once  becoming,  as 
has  been  remarked,  not  only  a  law  giver  to  the  thousands  within  her  borders, 
but  to  the  millions  who  are  to  succeed  them ;  and  by  force  of  her  example, 
to  not  only  the  vast  population  of  the  Pacific  Coast,  but  to  the  millions  of 
citizens  of  other  states  who  will  soon  follow  in  her  footsteps.  Then,  when  the 
laws  of  all  the  states  in  this  great  federation  are  harmonious,  and  in  sympathy 
with  each  other,  California,  having  made  the  first  advance  towards  this  high 
aim,  will  be  entitled  to  the  first  post  of  honor  and  gratitude  of  the  whole 
country." 

Senator  Edward  Tompkins,  who  was  chairman  of  the  Senate  judiciary 
committee,  one  of  the  best  lawyers  of  the  State,  said,  on  the  passage  of  the 
Civil  Code,  the  last  of  the  four  to  be  finished : 

"As  there  will  be  no  other  opportunity,  I  desire  to  say  a  few  words  in 
relation  to  the  bill  now  before  the  Senate  and  the  work  of  the  commissioners 
of  which  this  is  the  final  result.  Those  senators  who  were  here  two  years  ago 
will  remember  that  I  was  not  an  advocate  of  the  organization  of  the  Code  Com- 
mission. Past  experience  had  taught  me  to  believe  that  it  was  a  dangerous 
experiment ;  and  that  the  chances  were  that  we  would  have  as  its  fruits  large 
salaries  and  expenses  to  pay,  and  then  an  added  uncertainty  rather  than  any 
definite  rule  to  aid  us  afterward  in  the  administration  of  justice.  Having 
entertained  these  ideas  I  have  watched  the  labors  of  the  commission  with  per- 
haps more  interest,  and  certainly  not  with  any  stronger  disposition  to  be  pleased 
thereby,  than  would  otherwise  have  been  the  case;  and  I  desire  now,  in  justice 
to  the  Commission  and  to  myself,  to  say  that  I  was  entirely  mistaken   in   the 


History  of  the  Bench  and  Bar  of  California.  193 

ideas  that  I  entertained  in  relation  to  the  organization  of  the  commission,  and 
that  on  the  contrary,  I  now  believe  that  they  have  done  their  work  faithfully, 
wisely  and  well,  and  that  although  there  will  be  errors  (doubtless  some  great 
ones,  as  who  could  do  such  a  work  and  not  leave  traces  of  human  infirmity 
behind  them?)  yet  I  believe,  as  a  whole,  it  is  the  greatest  and  best  step  for- 
ward that  the  State  of  California  has  taken  toward  a  perfect  system  of  laws; 
and  therefore,  with  as  much  earnestness  and  sincerity  as  two  years  ago  I  op- 
posed this  movement,  I  now  second  the  motion,  that  the  rules  be  suspended 
and  the  bill  passed  by  the  senate  without  further  delay." 

Edward  Tompkins  died  in  1872.  He  had  given  to  the  State  University 
real  estate  worth  $50,000  to  found  the  Agassiz  professorship  of  Oriental 
literature  and  language — the  first  private  endowment  made  to  this  university. 

A  commission  appointed  by  Governor  Booth  to  examine  the  work  of  the 
code  commissioners,  consisted  of  Stephen  J.  Field,  Jackson  Temple,  and 
John  W.  Dwindle.  Their  names  were  suggested  by  the  Judges  of  the 
Supreme  Court.     They  spent  months  in  the  work,  and  said : 

"We  found  the  four  Codes — the  Political  Code,  the  Penal  Code,  the  Civil 
Code,  and  the  Code  of  Civil  Procedure,  as  prepared  by  the  commissioners,  and 
enacted  by  the  legislature,  perfect  in  their  analysis,  admirable  in  their  order 
and  arrangments,  and  furnishing  a  complete  Code  of  Laws,  the  first  time,  we 
believe,  that  such  a  result  has  been  achieved  by  any  of  the  Anglo-Saxon  or 
British  races.  It  seems  inexplicable  that  those  peoples  who  boast  of  being  the 
most  fully  imbued  with  the  sentiment  of  law,  have  left  their  laws  in  the  most 
confused  condition,  resting  partly  on  tradition,  but  for  the  greater  part  scattered 
through  thousands  of  volumes  of  books  of  statutes  and  reports,  and  thus  prac- 
tically inaccessible  to  the  mass  of  the  people.  That  California  has  been  the 
first  of  this  class  to  enact  a  complete  Code  of  municipal  law,  will  add,  not  only 
to  the  prosperity  of  her  people,  but  redound  to  her  honor  as  a  State." 

The  importance  of  this  great  undertaking  was  even  better  appreciated 
abroad  than  in  this  State — and  by  lawyers  more  than  by  laymen — just  as  the 
height  of  a  mountain  is  better  seen  from  a  distance  than  from  near  its  base. 
The  distinguished  David  Dudley  Field,  whose  own  labors  had  especially  fitted 
him  to  understand  the  value  of  the  work  of  the  commission,  at  its  comple- 
tion telegraphed  as  follows,  under  date  of  New  York  City,  March  18.  1872: 

To  Messrs.  Haymond,  Burch  and  Lindley,  Revision  Commissioners : 

All  honor  to  you  for  your  great  work  accomplished.  It  will  be  the  boast 
of  California  that,  first  of  English  speaking  states,  she  has  set  the  example  of 
written  laws  as  the  necessary  complement  of  a  written  constitution  for  a  free 
people.  DAVID  DUDLEY   FIELD. 

The  California  Code  consists  of  the  Civil  Code,  Code  of  Civil  Procedure, 
Penal  and  Political  Codes.  The  Civil  Code  contains  3,543  sections,  and 
deals  w^ith  the -rights  of  persons  and  of  things.  The  Code  of  Civil  Procedure 
contains  2,104  sections,  and  deals  with  the  organization  of  courts,  with  judi- 
cial and  ministerial  officers,  and  practice  in  the  courts  of  justice  of  the  State. 
The  Penal  Code  contains  1,614  sections,  and  defines  crimes  and  punishments, 
provides  for  proceedings  in  criminal  cases,  and  establishes  rules  for  State 
prisons  and  jails.  For  the  three  codes  mentioned,  only,  were  there  prece- 
dents;  for  the   Political   Code  there   were  none.     The   Political   Code  com- 


194  History  of  the  Bench  and  Bar  of  California. 

prises  4,105  sections,  relating  to  the  sovereignty  and  people  of  the  State,  and 
to  the  political  rights  of  all  its  subjects,  gives  the  political  divisions  of  the 
State,  defines  the  duties  of  all  public  officers,  establishes  election  laws,  laws 
relating  to  education,  militia,  public  institutions,  public  ways,  general  police 
and  property  of  the  State,  revenues  and  government  of  counties,  cities  and 
towns.  This  code,  covering  almost  every  matter  connected  with  the  life 
of  the  State,  was  passed  by  both  houses  of  the  legislature  without  reading — 
an  expression  of  confidence  without  example  in  the  history  of  the  world. 
More  than  a  quarter  of  a  century  has  passed  since  then,  yet  the  people  of 
California  have  never  found  reason  to  disapprove  this  action  of  their  repre- 
sentatives. 

While  the  commissioners  were  engaged  in  their  work,  a  deputation  of 
Japanese  officials  visited  the  State,  and  on  their  return  took  with  them  copies 
of  the  codes,  portions  of  which  were  afterwards  incorporated  into  the  laws 
of  Japan,  and  form  a  part  of  the  broad  legal  and  political  reform  which 
has  culminated  in  constitutional  liberty  in  that  country.  Letters  of  com- 
pliment and  appreciation  were  addressed  by  the  Japanese  authorities  to  Mr. 
Raymond,  and  his  friends  remember  two  large  and  curiously  beautiful  porce- 
lain vases,  which  were  sent  to  him  from  the  royal  manufactory  as  a  personal 
testimonial. 

When  Creed  Raymond  died  it  had  been  his  wish  to  perfect  the  code  system 
of  California — to  take  in  all  the  laws  which  had  been  enacted  since  the 
adoption  of  the  codes,  and  distribute  them  where  they  properly  belong  and  ex- 
tend their  provisions  more  in  detail ;  to  make  such  a  set  of  codes  that  hence- 
forth all  legislation  upon  the  subjects  treated  in  them  should  be  strictly  con- 
fined to  amendments. 

THB  EDITOR. 


STRANGE    STORY 

.^    .je    ^       OF  AN      ^    -^    -^ 

OLD  BANK  DEPOSIT 

BY   7HE  EDITOR 


l^^eJaeSidSbeisdb  (&(&(& 


HISTORY  of  the 
BENCH  and  BAR 
of  CALIFORNIA 


jp  ep  c^  c^  V:  •  ^JP  »*:' 


T/je  STRANGE  STORY  of  m 
OLD  BANK  DEPOSIT 


On  the  23CI  of  March,  1893,  the  legislature  of  the  State  of  California  passed 
the  following  law : 

Section  i.  The  cashier  or  secretary  of  every  Savings  Bank,  Savings  and 
Loan  Society,  and  every  institution  in  which  deposits  of  money  are  made  and 
interest  paid  thereon,  shall,  within  fifteen  days  after  the  ist  day  of  December  in 
the  year  one  thousand,  eight  hundred  and  ninety-three,  and  within  fifteen  days  of 
the  1st  day  of  December  of  each  and  every  second  succeeding  year  thereafter, 
return  to  the  Board  of  Bank  Commissioners  a  sworn  statement,  showing  the 
amount  standing  to  his  credit,  the  last  known  place  of  residence  or  postoffice 
address,  and  the  fact  of  death,  if  known  to  said  cashier  or  secretary,  of  everj' 
depositor  who  shall  not  have  made  a  deposit  therein,  nor  withdrawn  therefrom 
any  part  of  his  deposit,  or  any  part  of  the  interest  thereon,  for  a  period  of  more 
than  ten  years  next  preceding ;  and  the  cashiers  or  secretaries  of  such  savings 
banks,  savings  and  loan  societies  and  institutions  for  deposit  of  savings,  shall 
give  notice  of  these  deposits  in  one  or  more  newspapers  published  in  or  nearest 
to  the  city,  city  and  county,  or  town,  where  such  banks  are  situated,  at  least 
once  a  week,  for  four  successive  weeks,  the  cost  of  such  publication  to  be  paid 
pro  rata  out  of  said  vmclaimed  deposits  ;  provided,  however,  that  this  act  shall 
not  apply  to  or  affect  the  deposit  made  by  or  in  the  name  of  any  person  known 
to  the  said  cashier  or  secretary  to  be  living,  or  any  deposit  which,  with  the 
accumulations  thereon,  shall  be  less  than  fifty  dollars. 

Section  2.  The  Board  of  Bank  Commissioners  shall  incorporate  in  their 
subsequent  report  each  return  which  shall  have  been  made  to  them,  as  provided 
in  Section  i  of  this  act. 

Section  3.  Any  cashier  or  secretary  of  either  of  the  banking  institutions 
mentioned  in  Section  i  of  this  act,  neglecting  or  refusing  to  make  the  sworn 
statement  rcciuired  by  said  Section   i,  shall  be  guilty  of  a  misdemeanor. 

It  was  believed  that  the  banks  would  contest  the  validity  of  this  act,  for 
some  of  them  had  successfully  resisted  all  efforts  of  attcjrneys-general  (notably 
those  of  General  E.  C.  Marshall),  to  make  them  show  their  books,  in  order 
that  the  State  might  recover  the  escheats  to  which  it  might  be  entitled.  But 
the  banks,  without  exception,  promptly  published,  in  December,  1893,  the 
sworn  statements  called  for  l)y  the  act.  A  similar  law.  made  applicable  to  com- 
luercial  banks,  was  passed  in  1897.  and  all  banks  of  this  class  made  tlicir  first 
publications  in  the  sinnmcr  of  that  year. 


198  History  of  the  Bench  and  Bar  of  California. 

It  was  found,  when  the  savings  banks  made  puljHcation  first  (December, 
1893),  that  the  depositors  who  had  not  been  heard  of  for  ten  years,  were  nu- 
merous; indeed,  some  of  them,  and  these  having  the  largest  sums  to  their 
credit,  had  not  been  heard  from  for  twenty,  twenty-five  and  even  thirty  years. 
To  Hmit  the  view  to  San  Francisco,  the  sums  unclaimed  made  a  very  large 
aggregate.  The  amount  of  money  in  this  category  in  the  "Savings  and  Loan 
Society,"  was  $84,000.  This  is  the  oldest  of  our  savings  banks,  and  was 
incorporated  on  July  23.1857.  The  Hibernia  Savings  and  Loan  Society, 
incorporated  on  April  12,  1859,  and  celebrated  the  world  over  for  its  large 
number  of  depositors,  reported  as  unclaimed  the  sum  of  $230,984.  The  San 
Francisco  Savings  L'nion,  incorporated  on  June  18,  1862,  disclosed  $16,440. 
The  German  Savings  and  Loan  Society,  which  dates  from  February  10,  1868, 
had  $13,887.  The  Humboldt  Savings  and  Loan  Society,  which  opened  on 
November  24,  1869,  showed  a  little  under  $2000.  The  Security  Savings  Bank, 
existing  since  March  2,  1871,  held  $1854.  The  French  Savings  and  Loan 
Society,  incorporated  on  March  11,  1879,  but  which  held  the  funds  of  the  old 
bank  of  the  same  name,  incorporated  on  February  i,  i860,  presented  a  great 
array  of  names  with  a  very  small  axerage.  but  making  a  total  of  $28,000. 
The  Odd  Fellows'  Savings  Bank,  which  set  forth  on  a  promising  career,  De- 
cember I,  1866,  and  was  reorganized  on  June  24,  1878,  and  which  has  been 
in  liquidation  since  Alarch  i,  1880,  reported  $13,308. 

Here  was  nearly  $400,000.  The  depositors  numbered  seven  hundred.  As 
nearly  all  of  them  had  passed  away,  the  heirs  interested  were  many  times  seven 
hundred.  To  employ  the  language  of  the  London  "Academy."  in  referring 
to  the  constant  increase  of  unclaimed  money  in  England,  so  long  ago  as 
1878,.  "a  curious  economic  phenomenon,"  was  presented. 

The  State  law  of  1893  was  most  beneficial.  At  the  second  publication, 
in  December,  1895,  the  unclaimed  total  reported  by  the  Hibernia  Bank,  al- 
though two  years  of  additional  deposits  had  been  added,  was  decreased  to 
$104,000.  The  other  banks  showed  like  decrease.  The  difference  had  mostly 
gone  to  heirs  or  escheated  to  the  State.  Sometimes  an  old  depositor  turned 
up  alive,  and  occasionally  he  would  identify  himself  after  letters  of  adminis- 
tration had  been  issued  on  his  estate ;  but  in  no  case  where  a  depositor  reap- 
peared, had  the  bank  turned  over  the  money  to  the  administrator. 

It  was  in  August,  1894,  that  we  began  an  investigation  in  the  matter 
of  Alexander  Smith.  On  a  business  visit  to  ]\Ir.  J.  D.  Sullivan,  attornev  for 
the  public  administrator,  our  conversation  turned  upon  the  subject  of  un- 
claimed deposits  in  savings  banks,  reports  of  which  had  been  published  by  the 
banks  in  December,  1893,  pursuant  to  an  act  of  the  legislature  recently  passed. 

Mr.  Sullivan  suggested  that  as  we  had  met  with  some  success  in  finding 
missing  heirs,  especially  the  kindred  of  some  of  these  missing  depositors,  it 
might  be  well  to  turn  our  attention  to  these  old  bank  accounts. 

He  especially  mentioned  the  case  of  Alexander  Smith,  a  depositor  in  the 
"Savings  and  Loan  Society,"  to  whose  credit  remained  the  sum  of  $17,752, 


History  of  the  Bench  and  Bar  of  California.  199 

a  far  larger  amount  than  was  credited  to  any  other  depositor  in  any  bank 
in  the  State. 

We  told  Mr.  Sullivan  that  we  had  thought  of  such  an  investigation  as  he 
suggested,  but  had  abandoned  the  idea  in  the  belief  that  many  other  persons 
would  give  or  had  given  themselves  to  the  same  work ;  and  that  now,  after  a 
lapse  of  eight  months  since  publication,  if  we  undertook  to  solve  the  mystery 
of  Smith's  long  silence,  some  other  person  who  had  started  on  the  same  quest 
before  us,  would  reach  the  goal  first,  and  our  labor  would  be  in  vain. 

Mr.  Sullivan  replied  that  we  need  have  no  fears  on  that  score ;  that  many 
persons  had  tried  to  get  some  trace  of  Smith  or  his  relations  without  finding  a 
single  clue. 

We  then  determined  to  begin  work  in  this  matter. 

The  only  information  disclosed  by  the  published  bank  report  touching  Alex- 
ander Smith  was  that  when  he  made  his  deposit  he  resided  at  No.  233  Steven- 
son Street,  San  Francisco.  We  examined  the  San  Francisco  city  directories 
from  1850  to  1894,  inclusive,  and  found  that  the  only  Alexander  Smith  who 
resided  at  No.  233  Stevenson  Street  appeared  in  the  directory  for  1862,  and  in 
no  other.     His  occupation  or  calling  was  not  stated. 

We  looked  at  all  the  other  Smiths  in  the  directory  for  1862,  and  found  that 
one  James  Smith  also  lived  ("boarded")  at  No.  233  Stevenson  Street.  This 
James  Smith  was  put  down  as  being  a  clerk  in  the  New  York  warehouse. 

If  he  continued  to  live  in  the  city  thereafter,  he  changed  his  occupation  and 
residence,  and  we  could  not  trace  him. 

The  directory  failed  to  state  who  owned  the  New  York  warehouse  in  1862, 
or  in  any  other  year,  and  Mr.  Asa  R.  Wells,  and  other  oldtimers  of  whtjm  we 
inquired,  could  not  inform  us. 

We  took  the  directory  for  1862  and  looked  at  the  name  of  every  person  in 
the  book,  in  the  hope  of  finding  some  one  else  w'ho  resided  at  233  Steven- 
son Street,  in  that  year,  but  found  none. 

We  next  examined  the  index  of  all  estates  in  probate  in  San  Francisco  and 
found  none  in  the  name  of  Alexander  Smith.  We  examined  all  the  mortuary 
records  of  San  Francisco  with  like  result.  We  examined,  personally  and 
through  others,  the  indexes  of  all  property  conveyances  of  every  kind  in  San 
Francisco  from  i860  to  1880,  with  like  result. 

We  next  waited  on  Mr.  Carmany,  cashier  of  the  bank,  and  asked  if  he 
would  reveal  what  his  books  showed  as  to  Smith's  identity.  He  said  they  had 
his  signature  onlv.  It  was  the  impression  at  the  bank  that  Smith  was  a  cook, 
and  a  single  man.  We  said  to  him  that  Smith  must  have  made  his  deposit  in 
the  spring  of  1862. 

Without  looking  at  his  books  Mr.  Carmany  remarked  :  "Much  earlier  than 
that,  I  think.''  We  observed  that  if  Smith  made  his  deposit  as  early  as  i860, 
he  couldn't  have  lived  at  No.  233  Stevenson  Street,  as  that  number  is  now 
located,  because  our  present  system  of  numbering  houses  was  established  in 
1861. 


200  History  of  the  Bench  and  Bar  of  California. 

At  our  next  interview  j\Ir.  Carmany  informed  us  that  Smith  did  make  his 
deposit  in  the  spring  of  1862,  on  March  24th. 

The  long  stretcli  of  time  extending  since  that  period  left  no  room  to  doubt 
that  Smith  was  dead.  We  gave  ourselves  up  to  an  examination  of  old  news- 
paper flies,  those  of  the  Herald,  the  Alta  and  the  Bulletin,  in  search  of  "acci- 
dents by  flood  and  field."  The  melancholy  story  of  the  destruction  of  the 
Pacific  ]\Iail  steamship  "Golden  Gate"  by  fire,  on  the  Mexican  coast  on  Sunday 
afternoon,  July  2^,  1862,  came  before  the  eye.  The  names  of  all  the  passengers 
were  given.  Xo  Alexander  Smith  appeared,  but  among  the  names  of  steerage 
passengers  lost  were:  "A.  Smith,  wife,  wife's  sister,  and  four  children." 

Connected  with  the  long  narrative  of  this  disaster  in  the  BnUctiii  of  August 
7,  1862,  appeared  brief  notices  of  many  persons  who  had  taken  passage  on  the 
devoted  vessel.    Among  these  was  the  following: 

.•\mong  the  lost  are  A.  Smith,  his  wife,  wife's  sister,  and  four  children  of 
eleven  and  one-half,  ten,  seven,  and  five  and  one-half  years.  The  circumstances 
connected  with  the  loss  of  this  family  are  peculiarly  harrowing. 

Mr.  Smith,  an  enterprising  and  well  educated  Scotchman,  came  to  this  State 
some  two  years  since,  from  Brooklyn,  Long  Island,  with  his  household,  and 
having  accumulated  .some  property,  lost  nearly  the  whole  by  the  last  winter's 
floods.  He  had  made  up  his  mind  to  return  to  New  York,  and  the  expense 
of  the  trip  being  so  heavy  for  so  large  a  farftily  he  offered  his  eldest  daughter, 
Jane,  aged  seventeen,  who  had  been  some  time  living  in  the  family  of  General 
Ord,  in  this  city,  as  a  nurse  or  attendant  to  any  lady  intending  to  go  east  by 
the  "Golden  Gate,"  in  which  he  had  himself  secured  passage.  Jane  was  quickly 
taken  by  a  lady  who,  however,  was  not  to  leave  until  the  succeeding  steamer, 
August  1st;  and  it  was  agreed  finally  that  the  girl  should  wait  and  go  with 
Mrs.  P.  and  her  two  children  by  the  "Uncle  Sam."  The  rest  of  the  family  sailed 
and  were  lost. — Bulletin,  August  7,  1862,  3d  page,  4th  column. 

W'e  copied  this  and  took  it  to  Mr.  H.  S.  Dalliba,  the  oldest  reporter  on  the 
Bulletin,  and  asked  him  if  he  wrote  it  or  knew  anything  about  the  facts.  He 
said  :  "Xo;  that  he  was  not  on  the  Bulletin  in  1862.''  We  saw  Mr.  George  K. 
Fitch,  managing  editor  and  part  proprietor  of  the  Bulletin,  who  informed  us 
that  the  notice  of  A.  Smith  and  family  was  written  by  Dr.  Franklin  Tuthill, 
city  editor  of  the  Bulletin  at  that  time.  Dr.  Tuthill  died  in  the  East,  a  few 
years  thereafter.     Mr.  Fitch  himself  knew  nothing  in  regard  to  Smith. 

Being  im])ressed  with  the  conviction  that  this  Bulletin  notice  was  a  reve- 
lation, we  told  Mr.  Carmany  about  it.  He  said  he  had  always  understood  that 
Smith  was  a  single  man.  We  gave  him  the  date  of  the  sailing  of  the  "Golden 
Gate"  from  San  Francisco,  July  21st,  and  in  return  he  disclosed  the  fact 
that  his  depositor  drew  $500  on  the  2nd  of  that  month. 

The  situation  was  now  this  :  The  bank  depositor  was  Alexander  Smith ;  the 
drowned  man  was  A.  Smith.  The  deposit(»r,  Alexander  Smith,  lived  at  No. 
233  Stevenson  Street:  the  drowned  man,  A.  Smith,  had  as  yet,  no  discovered 
residence.  It  was  understood  at  the  bank  that  Alexander  Smith  was  a  single 
man:  A.  Smith  was  a  man  of  large  family.  It  was  understood  at  the  bank  that 
Alexander  Snn'th  was  a  cook:  A.  Smith  was  an  educated  man,  and  while  his 


History  of  the  Bench  and  Bar  of  California.  201 

occupation  was  not  given  in  the  Bulletin  notice,  it  could  hardly  be  accepted 
that  he  was  a  cook. 

We  next  gave  ourselves  to  the  task  of  discovering,  if  possible,  what  was  the 
first  name  of  the  drowned  man  A.  Smith,  and  where  he  resided  in  San  Fran- 
cisco before  starting  on  his  fatal  voyage.  If  A.  Smith  resided  at  any  other 
place  than  No.  233  Stevenson  Street,  or  if  A.  stood  for  Abner,  Anson,  Andrew, 
Aminadab,  or  any  other  name  InU  Alexander,  we  had  so  far  been  chasing  a 
shadow.    We  spent  several  months  in  the  effort  to  settle  this  point. 

The  published  list  of  cabin  passengers  who  sailed  on  the  steamer  of  August 
I,  1862,  showed  that  "Mrs.  P."  who  took  Jane  Smith  with  her  as  nurse,  wa^ 
Mrs.  S.  S.  Phillips.  Her  name  and  that  (presumably)  of  her  husband  appear 
in  a  few  of  the  early  directories,  but  it  was  not  possible  to  trace  either  of  them 
very  far,  or  to  find  any  one  who  knew  them.  The  family  of  General  Ord,  in 
which  Jane  Smith  was  employed  in  1862,  is  related  closely  to  the  families  of 
Mr.  S.  W.  Holladay  and  ]\Ir.  William  Craig,  well-known  lawyers.  We  waited 
upon  these  gentlemen,  and  inquired  if  they,  or  Mrs.  Holladay  or  Mrs.  Craig, 
recollected  the  girl  Jane  Smith,  or  what  became  of  her.  They  answered  "no," 
(after  conference  at  home).  They  further  said  that  General  Ord  had  been 
dead  many  years,  and  that  his  widow  had  recently  died  in  Texas. 

Accepting  it  as  possible  that  Jane  Smith  may  have  returned  to  San  Fran- 
cisco and  married,  we  examined  the  marriage  registers  from  1862  to  1872. 
The  only  Jane  Smith  there  found  that  could  have  loeen  the  object  of  our  search, 
comparing  dates  and  ages,  had  become  the  wife  of  ]\Ir.  P.  S.  Marshall,  who  is 
now  in  the  produce  business  in  San  Francisco.  Mr.  Marshall,  in  answer  to 
a  letter  from  us,  wrote  that  his  wife  was  not  the  lady  sought  for. 

We  endeavored  in  various  ways  to  find  Jane  Smith  or  some  of  her  kindred. 
The  purpose  was  to  get  from  them  the  Christian  name  of  A.  Smith,  drowned 
on  the  "Golden  Gate." 

W^e  went  again  over  the  old  newspaper  files,  including  the  Sacramento 
Union,  and  read  the  voluminous  accounts  of  the  great  floods  of  the  winter  of 
1861-62.  The  Marysville  .Xjjpeal  was  searched  by  Mr.  Geo.  A.  ^lorris.  its 
capable  editor.  W'e  found  that  the  floods  had  swept  nearly  every  countv  in  the 
State.  Convinced  from  the  Bulletin  notice  that  A.  v^mith  had  ac(|uire(l  his 
property  somewhere  in  the  interior,  we  hoped  to  see  his  n:nne  in  the  long  list 
of  sufferers  by  the  flood,  but  it  did  not  appear. 

We  wrote  to  the  county  assessors  of  the  twelve  counties  most  serinusly 
affected  by  the  great  flood,  in(|uiring  if  Smith's  name  apjioared  on  their  assess- 
ment rolls  in  the  years  i860,  1861  or  1862.  Seven  of  the^e  rei)lied  that  they 
did  not  find  the  name.  The  others  did  not  answer.  Tn  additinn.  Hon.  T.  E. 
Jones,  Superior  Judge  of  Trinity  county,  made  the  examination  in  that  county, 
and  Mr.  R.  M.  Swain,  once  a  Lawyer  in  v^an  h'rancisco,  now  of  Santa  Rosa, 
performed  the  same  ser\'ice  as  to  Sonoma  county. 

We  had  circulars  jjrinted  setting  forth  what  had  been  ascertained  about 
Smith,  and  offering  a  reward  of  $50.00  for  informatio)i  as  to  where  he  resided 


202  History  of  the  Bench  and  Bar  of  California. 

ill  California  in  i860  or  1861  ;  or  where  in  Scotland  he  was  horn,  or  where  his 
daughter  Jane  or  any  relation  still  lived.  These  were  sent  to  many  "old 
timers"  in  San  Francisco  and  the  interior,  and  also  to  Brooklyn,  N.  Y. ;  also 
to  a  number  of  attorneys  in  those  parts,  and  in  Portland,  Oregon,  and  to  Mr. 
Alf.  Doten,  the  w^idely-known  journalist  of  Virginia  City,  Nevada.  The  pur- 
pose was  to  find  some  one  who  knew  A.  Smith,  the  lost  passenger  of  the  "Gol- 
den Gate."  and  possibly  secure  his  signature,  or  in  some  way  identify  him  wnth 
Alexander  Smith,  the  bank  depositor. 

In  the  effort  to  secure  the  autograph  of  A.  Smith,  the  drowned  man.  among 
many  other  things  done,  was  this :  A  communication  was  sent  to  the  Pacific 
Mail  Steamship  Company,  inquiring  if  their  records  of  1862  were  preserved, 
and  if  it  was  the  practice  of  the  company  to  take  the  signature  of  steerage  pas- 
sengers.    This  reply  was  returned  : 

Pacific  Mail   Steamship   Company, 
San   Francisco.   November  21,   1894. 
Oscar  T.  Shuck,  Esq,,  509  Kearny  Street,  City: 

Dear  Sir: — Replying  to  yours  of  the  19th  instant,  our  records  respecting  the 
passengers  who  sailed  by  our  S.  S.  "Golden  Gate,"  lost  off  the  Mexican  Coast 
in  July,  1862,  are  not  obtainable  here.  We  may  remark,  however,  that  the  signa- 
tures of  passengers  are  not  taken,  except  in  certain  instances  upon  the  tickets 
themselves,  which  in  this  case  were  lost  with  the  ship. 

Yours  truly, 

Alex.   Center,  General   Agent. 

In  all  our  correspondence  on  this  business,  to  smooth  the  way  for  prompt 
replies,  w^e  enclosed  envelopes  addressed  and  stamped.  Nearly  all  of  these 
letters  were  answered. 

Plaving  ascertained  that  Mr.  David  Hew'es,  the  w-ell  known  capitalist, 
owned  in  1862  the  property  at  No.  233  Stevenson  Street,  we  communicated 
with  him.  He  did  us  the  kindness  to  call  at  our  office  and  w-e  had  a  long  talk. 
Mr.  Hewes  did  not  have  Smith's  signature,  or  know^  anything  in  regard  to  him, 
but  remembered  him  dimly.  He  referred  us  to  others  but  the  result  was  the 
same. 

Our  call  at  the  bank,  on  which  occasion  we  reported  the  circumstances 
attending  the  death  of  A.  Smith,  was  in  the  latter  part  of  August,  1894.  Di- 
rectly afterwards  we  informed  the  public  administrator  that  Alexander  Smith 
had  made  his  deposit  on  March  24,  1862;  that  he  had  withdraw^n  $500  on 
July  2,  1862;  that  A.  Smith  and  his  family  departed  on  the  "Golden  Gate" 
on  July  21.  1862,  and  perished  on  July  27,  1862;  and  that  Alexander  Smith 
had  never  been  heard  from  after  A.  Smith  died.  Thereupon  the  public 
administratrir  a])j)lied  for  letters  of  administration  u])on  the  estate  of  Alex- 
ander Smith. 

We  had  given  the  exact  time  and  place  of  death,  but  the  administrator's 
petition  inadvertently  stated  that  it  occurred  at  San  Francisco  in  1866,  instead 
of  in  Mexico  in  1862.  On  the  27th  day  of  August,  1894,  the  Honorable 
Judge  of  Department  10,  \^'alter  H.  Levy,  made  an  order  appointing  us 
attorney  for  the  heirs  of  the  deceased. 


History  of  the  Bench  and  Bar  of  California.  203 

On  the  4th  of  September,  1894,  an  order  was  made  by  the  same  Judg^, 
granting-  the  petition  of  the  pubhc  administrator  for  letters.  The  order  was 
not  actually  signed  until  February  6,  1895,  o"  which  day  letters  were  duly 
issued  to  that  officer,  and  on  the  same  day  the  first  publication  of  notice  to 
creditors  was  duly  made. 

During  the  months  that  had  intervened  the  bank  officials  steadily  refused 
to  admit  that  it  had  been  established  that  their  depositor  was  dead. 

On  the  afternoon  of  Wednesday,  the  12th  day  of  December,  1894,  we 
were  in  the  San  Francisco  Law  Library,  in  the  room  containing  the  old  news- 
paper files,  pursuing  our  labors  in  this  matter.  Dr.  Tuthill's  notice  of  the 
Smith  family  again  came  to  mind.  The  words,  "He  offered  his  eldest  daugh- 
ter, Jane,  as  a  nurse,"  challenged  attention  as  they  had  not  done  before.  The 
thought  came,  "Wonder  if  he  did  not  advertise?" 

It  was  getting  dark.  We  were  alone  in  the  room.  Mr.  Deering,  the 
librarian,  came  in  and  said  he  was  going  away  for  a  while,  but  that  we  could 
light  the  gas  and  remain  as  long  as  desired.  We  replied  that  we  would 
have  to  go  in  ten  minutes.  He  remarked:  "Then  I  will  wait  for  you  and 
lock  the  door."  In  about  ten  minutes  we  closed  the  files  and  left  the  room. 
In  that  ten  minutes'  time  we  had  found  all  that  we  had  hoped  for.  It  was  a 
moment  "big  with  fate,''  as  affecting  Jane  Smith. 

A  significant  advertisement  was  found  in  the  Bulletin^  before  giving  which 
we  beg  to  say,  that  if  we  had  not  found  it  then  we  would  ha\-e  found  it  nexer. 
We  would  not  have  gone  back  to  the  library  the  next  day.  We  had  made 
diligent  search  for  some  advertisement  and  would  have  ended  the  examina- 
tion on  that  line  with  that  day's  sitting. 

But  here  is  the  "ad."  then  found,  from  the  Bulletin  of  July  16,  1862, 
second  page : 

"Wanted — By  a  young  girl,  a  situation  to  attend  on  a  family  going  East  by 
the  next  steamer.  Inquire  at  No.  233  Stevenson  street,  between  Third 
and  Fourth." 

No  name  was  mentioned,  but  No.  233  Stevenson  street  was  the  residence 
of  Alexander  Smith,  the  depositor;  and,  as  already  shown,  A.  Smith  when 
he  departed  on  the  "Golden  Gate,"  had  "offered"  his  eldest  child.  Jane,  as 
a  nurse  to  follow  on  the  next  steamer. 

"The  patient  search  and  vigil  long"  now  ended.  The  "nail  was  driven  in 
a  sure  place,"  and  there  was  "no  loop  to  hang  a  doubt  on." 

For  a  long  time  thereafter,  by  night  as  well  as  day.  these  homely  words 
came  to  mind:  "In(|uire  at  No.  233  Stevenson  street,"  "Inquire  at  No. 
233  Stevenson  street." 

On  the  following  day  we  went  with  Mr.  \\.  \\  Cluin,  the  bookkeeper  of 
the  pu1)lic  administrator,  to  the  bank,  and  handed  to  Mr.  Carmany  a  copy  of 
the  advertisement.  He  read  it  silently,  with  a  thoughtful  expression  on  his 
face,  and  then  said  slowly  :  "And  that's  where  our  depositor  lived,  wasn't  it?' 
We    remarked.    "Yes,    Mr.    Carman v,    this    is    the    missing   link."     He   then 


204  History  of  the  Bench  and  Bar  of  California. 

(|iieriecl :  "Now,  will  he  pass  it?"  By  this  he  meant,  as  we  understood  him. 
would  the  bank's  attorney  pass  favorably  on  our  showing,  as  then  made  out, 
and  direct  that  the  deposit  in  the  name  of  Alexander  Smith  be  turned  over 
to  the  public  administrator. 

It  was  agreed  that  we  should  put  the  whole  case  in  chronological  narra- 
tive form,  and  leave  it  with  Mr.  Carmany.  This  was  done  the  next  day, 
and  on  that  day  also  we  inserted  in  the  Bulletin,  at  an  expense  of  $10.00,  the 
following  advertisement,  which  appeared  on  December  14th,  17th  and  19th, 
1894: 

HEIRS  OF  ALEXANDER  SMITH. 

Jane,  sole  surviving  child  of  Alexander  Smith,  or  her  descendants,  will 
learn  of  a  fortune  awaiting  them  by  communicating  with  the  undersigned. 
This  Alexander  Smith,  a  Scotchman,  lived  at  233  Stevenson  street,  San  Fran- 
cisco, in  1862.  On  July  21,  1862,  he  sailed  with  his  large  family  on  the  "Gol- 
den Gate,"  en  route  for  their  old  home  in  Brooklyn,  N.  Y.  All  perished  at 
the  burning  of  the  steamer  o.ff  the  Mexican  coast  a  week  later.  Jane,  the  eld- 
est child,  went  on  the  next  steamer  as  nurse  to  Mrs.  S.  S.  Phillips.  She  is,  if 
living  now,  about  fifty  years  old.  James  Smith  also  lived  at  233  Stevenson  street 
with  Alexander  Smith.  He  was  presumably  a  relative;  and  a  man  of  that 
name  also  returned  to  Brooklyn  on  the  steamer  with  Jane.  Anyone  rendering 
material  assistance  in  the  effort  to  find  Jane  or  her  kindred  will  be  adequately 
rewarded. 

December    14,    1894.  OSCAR    T.    SHUCK. 

509  Kearny  St.,   San   Francisco,   Attorney   for  the   Heirs  of  Alexander   Smith, 

Deceased,  by  Appointment  of  the  Superior   Court. 

On  the  evening  of  the  first  appearance  of  this  advertisement  a  Chronicle 
reporter  called  at  our  residence  and  asked  to  be  given  the  facts  in  regard  to 
Alexander  Smith.  As  a  result  of  the  interview  there  appeared  in  the  Chronicle 
next  morning,  December  15,  1894,  on  page  16,  an  article  over  a  column  in 
length,  entitled,  "Hunting  for  an  Heir — A  Small  Fortune  Awaiting  Jane 
Smith." 

And  so,  with  the  wide  circulation  of  the  journal  named,  this  interestin^g 
story  was  read  in  every  community  on  the  Pacific  Coast,  and  probaljly  by 
many  persons  in  every  State  of  the  Union. 

We  received  calls  and  letters  on  the  subject,  including  visits  from  a 
gentleman  and  a  lady  wlio  had  known  Jane  Smith  in  1863,  but  none  from 
Jane  Smith  herself.  We  emi)loyed  the  law  firm  of  Reu  &  Reid,  Eagle  Build- 
ing, Brooklyn,  N.  Y..  to  make  search  and  inquiry  for  Jane  Smith,  or  any  of 
the  kindred  of  yMexander  Smith  in  Brooklyn  and  New  York  city,  requesting 
them  to  solicit  the  kindly  offices  of  the  mayors  of  the  two  cities,  and  the 
news])a])ers,  and  to  advertise  if  necessary. 

In  Christmas  week  we  were  informed  by  Mr.  Cluin,  before  named,  that  he 
bad.  pursuant  to  our  re(|uest,  again  called  on  Mr.  Carmany,  and  asked  if  the 
latter  was  satisfied  with  our  showing;  and  that  Mr.  Carmany  replied  that  he 
would  have  some  news  that  would  probably  settle  the  matter  in  a  fortnight 
or  so. 


History  of  the  Bench  and  Bar  of  California.  205 

About  three  weeks  later  Mr.  Cluin  told  us  that  he  had  visited  Mr.  Carmany 
once  more,  and  the  latter  had  stated  that  he  thought  he  had  found  Jane  Smith, 
and  that  he  would  know  definitely  when  she  had  returned  to  the  bank  certain 
affidavits  which  had  been  sent  on  to  her  to  sign. 

A  day  or  two  thereafter  we  addressed  a  letter  to  Mr.  Carmany,  telling 
him  what  we  had  learned  from  Mr.  Cluin ;  further,  that  we  had  been  appointed 
by  the  court  as  attorney  for  the  heirs  of  Alexander  Smith ;  thanking  him  for 
past  courtesy,  and  asking  him  to  please  give  us  the  address  of  Jane  Smith. 
We  told  him  the  lady  might  not  be  aware  of  our  authority,  nor  know  what 
we  had  accomplished  for  her,  and  we  hated  to  see  some  other  attorney  reap 
the  fruits  of  our  labors.     We  desired  to  communicate  with  her  at  once. 

After  a  few  days  Mr.  Carmany  replied  by  letter,  asking  us  to  call  on  Mr. 
Drown,  the  bank's  attorney.  We  called  at  Mr.  Drown's  office  the  same  day, 
Saturday,  February  2d,  1895,  and  again  on  Monday,  February  4,  but  he  was 
not  in.  We  did  not  make  a  third  visit,  because  on  the  morning  of  the  last 
call  we  learned  that  Jane  M.  Harvey,  Mr.  Drown  being  her  attorney,  had  a 
few  days  before  filed  a  petition  in  Department  9  (Judge  Coffey)  of  the  Supe- 
rior Court,  for  letters  of  administration  upon  the  estate  of  the  same  Alexander 
Smith,  who  is  referred  to  throughout  this  narrative.  Therein  she  appeared 
as  the  daughter  and  sole  heir  of  the  said  deceased. 

She  was  the  Jane  Smith  for  whom  we  had  assiduously  searched,  and 
she  was  now  before  the  court,  and  was  about  to  come  into  her  long-lost  inher- 
itance entirely  by  our  researches  and  labors. 

Of  course,  we  might  have  kept  secret  all  knowledge  acquired  until  Jane 
Smith  had  learned  the  truth  from  our  own  lips  and  had  contracted  with  us 
for  our  proper  compensation ;  but  we  told  the  public  administrator  and  the 
bank  of  developments,  as  they  occurred. 

In  his  petition  Mr.  Drown  gave  the  death  of  Alexander  Smith  as  having 
occurred  at  the  very  time  and  place  reported  by  us.  Mr.  Drown  was  not 
aware  that  the  public  administrator.  Captain  A.  C.  Freese,  had  obtained  let- 
ters of  administration  on  the  estate.  It  was  shortly  agreed  that  the  latter 
should  administer,  and  Mrs.  Harvey  withdrew  her  petition  for  letters.  She 
had,  in  1862.  as  Jane  Smith,  the  nurse  girl,  gone  to  New  York,  and  from 
there  went  to  relatives  in  Scotland.  There  she  married,  and  was  now  settled 
with  her  husband  and  grown  sons,  in  Denver,  Colorado.  It  was  in  Denver 
thnt  she  read  an  Associated  Press  dispatch,  which  was  published  all  over  the 
English-speaking  world,  telling  of  the  discovery  of  this  estate.  She  came 
on  and  established  her  identity  with  Jane  Smith,  Alexander's  daughter.  Tier 
brother,  James,  could  not  be  traced  later  than  1875,  when  he  was  in  Pioche, 
Nevada.  He  was  not  the  James  Smith  who  went  Fast  on  the  steamer.  W^e 
had  advertised  for  him  in  every  county  of  Nevada,  and  all  over  tlie  Great  ^^'^est. 
His  disappearance  lends  a  new  mystery  to  the  family  history.  The  whole  estate 
was  awarded  to  Mrs.  Harvey — less  the  fees  and  charges,  which  were  \ery 
heavv. 


206  History  of  the  Bench  and  Bar  of  California. 

Alexander  Smith  had  left  in  bank  in  1862  about  $1500.  This  had  grown 
to  $17,752  in  1893.  Pending  our  investigation,  and  the  administration  pro- 
ceedings, accruing  interest  added  over  $2700.  The  amount  at  the  final  dis- 
tribution in  1896,  was  $20,500.  Our  own  allowance,  for  the  services  herein 
spoken  of,  as  fixed  by  the  court,  with  Mrs.  Harvey's  approval,  was  $3000. 
The  fees  of  the  other  attorneys,  and  the  public  administrator's  commissions, 
probably  aggregated  as  much  more. 

Our  residence  was  in  San  Francisco  in  the  now  distant  period  when  the 
Smith  family  lived  at  No.  233  Stevenson  street,  and  we  used  to  pass  by  their 
door  without,  of  course,  having  any  knowledge  of  the  occupants.  Our  long 
investigation  above  detailed,  brought  a  sense  of  old  acquaintance,  and  it  seemed 
almost  that  we  knew  every  member  of  the  household.  The  figure  of  the  little 
girl,  especially,  would  repeatedly  come  into  the  field  of  fancy,  and  we  would 
question  if  indeed  we  had  not  seen  her  at  play  in  front  of  the  happy  home 
that  was  to  have  so  sudden  and  so  sad  a  doom. 

But  the  story  is  told.  A  sadder  one  (that  of  the  missing  brother  James) 
sadder,  indeed,  if  certain  gathered  knowledge  proclaims  the  man,  may  call 
for  narration  at  another  time. 

THE  EDITOR. 


GREAT  BRODERICK 
^^   WILL  CASE  ^^ 

<BK   THE   EDITOR 


>  &  £&  lifa  ois  t&  &  afe  Sa  tffe 


HISTORY  of  the 
BENCH  anc/ BAR 
of  CALIFORNIA 


ofpe^^^epe^e^c,^ 


The  GREAT  BRODERICK  WILL  CASE 


The  estate  of  Senator  Broderick,  who  fell  in  a  dnel  with  Judge  David 
S.  Terry,  in  1859,  was  administered  upon  in  San  Francisco.  Before  pro- 
ceedings ended  they  had  engaged  the  attention  of  nearly  every  court  of  record 
in  the  city,  the  Supreme  Court  of  the  State,  and  lastly  the  Supreme  Court 
of  the  United  States.  No  heirs  being  known  and  no  will  being  discovered, 
on  September  21,  1859,  General  D.  D.  Colton,  one  of  Broderick's  seconds,  who 
was  a  creditor,  applied  to  the  Probate  Court  for  letters  of  administration  upon 
the  estate,  but  the  next  day  Lewis  P.  Sage,  the  public  administrator,  made  a 
like  application  pending  the  contest.  The  court,  on  December  14th  follow- 
ing, appointed  David  P.  Belknap  special  administrator.  Mr.  Belknap  had 
charge  of  the  estate  for  some  ten  months,  when  a  paper  was  filed,  purporting 
to  be  the  last  will  and  testament  of  the  deceased,  and  pursuant  to  its  pro- 
visions, letters  testamentary  were  issued  on  October  20,  i860,  to  John  :\. 
McGlynn  and  A.  J.  Butler.  The  latter  was  a  resident  of  New  York  city,  and 
McGlynn  acted  as  sole  executor  throughout. 

The  alleged  will  was  dated  New  York  city,  January  2,  1859  (Sunday). 
It  was  very  brief,  directing  that,  after  all  debts  were  paid,  his  friend  McGlynn 
should  receive  $10,000,  and  "all  the  rest  and  residue  of  my  estate,  both  real 
and  personal,  I  give  and  bequeath  to  my  friend,  George  Wilkes,  of  the  citv  of 
New  York."  Wilkes,  McGlynn  and  Butler  were  nonn'nated  as  executors,  to 
give  bonds. 

The  estate  consisted  almost  wholly  of  real  estate  in  the  central  part  of 
San  Francisco,  and  was  appraised  at  $242,896.79 — a  very  large  estate  for 
that  day.  The  personalty  consisted  of  v$6409.59  in  money,  some  gold  speci- 
mens worth  $571 .20,  and  in  his  box  at  the  bankers'  (John  Sime  &  Co.),  was 
the  shattered  gold  watch  that  was  the  means  of  saving  his  life  in  the  duel 
with  Judge  Smith.  It  was  presented  t<»  him  by  the  I  Inward  Fngine  Company, 
of  New  York  city,  on  the  eve  of  his  departure  for  California. 

On  September  30,  i86t,  John  McDonald,  Mrs.  John  Tloward  and  Mrs. 
Philip   Fogarty   filed  a  petition    setting   up   that   they    were    next   of   kin    of 


210  History  of  the  Bench  and  Bar  of  California. 

deceased,  declaring  that  tlie  alleged  will  was  a  forgery,  and  asking  that  the 
order  of  court  admitting  it  to  prol^ate  be  revoked.  These  parties  did  not 
press  their  application  ^■ery  far,  and  soon  came  to  acquiesce  in  the  proceed- 
ings and  sale  of  the  realty. 

On  November  29,  1861.  the  attorney-general,  Thomas  H.  Williams,  on 
behalf  of  the  State,  and  on  the  relation  of  Frank  M.  Pixley,  Esq.,  attorney- 
general-elect,  but  not  yet  in  office,  filed  in  the  Fourth  District  Court  an  infor- 
mation alleging  that  Broderick  had  died  intestate,  and  without  heirs,  and 
that  his  estate  had  escheated  to  the  State  of  California.  On  the  same  day 
he  commenced,  in  the  same  court,  a  suit  in  equity  to  obtain  an  injunction 
against  the  sale  of  the  estate  by  McGlynn  and  Butler.  A  temporary  restrain- 
ing order  was  issued  pending  the  information. 

On  the  hearing  it  was  claimed  1)y  the  plaintiff  that  the  forgery  was 
accomplished  after  this  manner:  Butler,  who  was  in  this  State  when  Brod- 
erick died  and  afterwards,  conceived  the  job,  and,  going  to  New  York,  confed- 
erated with  Moses  E.  Flanagan,  James  R.  Maloney,  George  Wilkes,  John  J. 
Hoff  and  Alfred  A.  Phillips.  Flanagan,  wdio  had  been  in  the  habit  of  using, 
by  consent,  Broderick's  senatorial  frank,  wrote  simulated  signatures  on  several 
sheets  of  paper.  Phillips  w^rote  the  will  above  one  of  those  signatures,  and  he 
and  Hoff  signed  their  names  as  witnesses.  It  was  not  disclosed  where  the 
alleged  will  was  discovered. 

McGlynn,  who  was  not  charged  with  the  forgery,  was  the  only  defendant 
who  appeared.  He  denied,  on  information  and  belief,  all  the  allegations  of 
the  complaint.  His  defense  was  that  the  \\\\\  was  genuine,  and  that  the  decree 
of  the  Probate  Court  admitting  the  document  to  probate  was  final  and  con- 
clusive, and  could  not  be  questioned  by  any  other  court,  under  the  statute 
which  provided  that,  after  the  lapse  of  one  year  from  the  probate  of  a  will 
the  probate  shall  be  conclusive. 

Judge  Hager  held  that  this  statute  did  not  preclude  courts  of  equity  from 
setting  aside  wills,  the  probate  of  wdiich  had  been  procured  by  fraud.     He  said  : 

It  seems  like  an  anomaly  in  law  that  by  any  course  of  reasoning,  based  on 
principle  and  legal  authority,  we  should  attempt  to  establish  the  validity  of  a 
forged  will,  which  is  of  itself  a  nullity,  or  of  its  probate,  procured  by  fraud 
and  perjury;  and  if  sucessfully  done,  i  fear  it  would  be  a  reflection  upon  our 
institutions  and  a  stain  upon  our  jurisprudence.  It  is  urged  that  equity  will 
not  interfere,  even  if  it  be  established  that  the  will  is  a  forgery,  and  its  probate 
procured  by  fraud  and  perjury.  If  this  be  sound  in  principle  and  supported  by 
authority,  we  deduce  a  controlling  principle  of  law  to  the  following  effect: 
That  if  a  person  successfully  consummates  the  forgery  of  a  will,  and  by  fraud 
and  perjury  gets  it  admitted  to  probate,  and  for  one  year  .thereafter  conceals 
the  evidence  of  his  crime,  he  may  acquire  an  estate.  If  the  legal  heir  be  absent 
from  the  country,  and  does  not  know  or  hear  of  the  death  of  his  relative  during 
the  year  following  the  probate,  for  the  same  reason  he  must  lose  his  inheritance. 
The  forger  might  be  punished  for  the  public  offense,  but  he  would  hold  the  estate, 
and  the  heir  would  lose  it.  Public  justice  might  be  vindicated,  but  the  inherit- 
ance would  be  despoiled,  and  our  courts  would  be  inadequate  to  grant  relief. 


History  of  the  Bench  and  Bar  of  California.  211 

Such  a  principle  would  seem  to  be  in  violation  of  natural  justice,  absolute  rights 
and  public  policy.  I  am  not  able  to  understand  why  a  forged  will  should  be 
placed  upon   any   footing   different    from   a    forged   deed. 

Having  declared  that  the  only  satisfactory  evidence  in  the  case  was  that 
evinced  by  the  will  itself,  Judge  Hager  proceeded  : 

An  inspection  of  the  will  discloses  to  the  senses  some  peculiar  phenomena, 
and  many  remarkable  visible  signs  that  are  suggestive  and  circumstantially 
strong,  against  the  probable  truth  of  some  of  the  defendant's  evidence.  It  is 
manifest  to  the  ej^e  that,  in  the  signature  "D.  C.  Broderick."  and  in  the  words 
"John  J.  Hoff,  131  and  133  Washington  street,  Hoboken,  N.  J.,"  the  ink  of  the 
one  is  of  a  darker  tint  than  that  of  the  other,  and  that  both  arc  much  darker  hued 
than   the   writing   composing   the   body   of   the   document   and    the   certificate   of  V, 

attestation.  In  the  last  mentioned  instance  it  is  so  demonstrable,  upon  mere 
inspection  that  I  can  hardly  suppose  the  entire  document  and  signatures  were 
written  on  the  same  occasion,  at  the  same  table,  and  with  the  same  ink.  as  we 
are  led  to  infer  was  the  case  from  the  testimony  of  Phillips  and   Hofif.  .' 

The  will  consists  of  one  sheet  of  letter  paper ;  the  signature  is  on  the  third  |; 

line  of  the  second  page,   and   is   succeeded  by  the   certificate  of  the   subscribing  \ 

witnesses.  I 

The  body  of  the  will  contains  twenty-one  lines  of  manuscript.  Of  these 
eighteen  are   entire   lines,   wthout  interlineation.     As  the  lines   approximate   the  ' 

signature  the  letters  become  gradually  and  very  perceptibly  smaller,  and  the 
words  are  more  condensed  and  crowded,  and  in  the  last  line  a  few  of  the 
words  are  carried  beyond  the  marginal  line,  which  is  the  only  instance  where 
i<-  occurs,  either  in  the  body  of  the  will  or  the  certificate.  These  phenomena, 
so  remarkable  and  extraordinary,  apparent  on  the  face  of  the  will,  and  established 
in  some  respects  with  the  certainty  of  a  mathematical  demonstration,  are 
unexplained,  and.  in  view  of  the  evidence,  cannot  upon  any  reasonable  hypothesis 
be  attributed  to  chance  or  accident.  The  ordinary  manuscript  of  a  scrivner 
would  scarcely  ever  exhibit  such  marked  peculiarities.  If,  however,  as  some  of 
the  evidence  tends  to  indicate,  the  name  D.  C.  Broderick  was  first  written,  and 
that  alleged  signature  and  the  initial  line  on  the  first  page  formed  a  Procrustean 
bed,  in  which  the  body  of  this  alleged  will  was  placed  and  made  to  conform  to 
it,  we  have  a  solution. 

The  Judge  ordered  the  injunction  issned  as  prayed  for.  McGlynn 
appealed,  and  a  memorable  argument  followed  before  the  Supreme  Court. 
Messrs.  Hoge  and  Wilson  represented  the  appellant,  and  succeeded  in  uplu'ld- 
mg  the  will.  Judge  Hager's  injunction  was  dissolved.  James  B.  Haggin 
represented  the  self-declared  heirs-at-law,  and  Gregory  Yale  fought  like  a 
Titan  for  the  lost  cause.  The  following  vigorous  extract  is  from  Yale's 
brief : 

The  great  effort  is  now  and  always  has  been  since  the  accidental  probate 
of  this  felonious  paper,  to  take  shelter  behind  a  formal  decree  legalizing  the 
felonious  act.  Will  or  no  will,  when  propounded  for  probate  it  is  claimed  that 
it  became  an  immaculate  testament  when  solemnized  by  certain  forms.  Brod- 
erick may  not  have  made  a  will,  but  Butler,  with  his  co-conspirators,  has  secured 
the  probate  judge's  name,  if  not  D.  C.  Broderick's,  to  the  paper,  and  no  human 
power  can  detach  it.  This  is  the  doctrine  that  this  court  is  called  upon  to  sanc- 
tion. Years  and  generations  hence,  the  term  of  1862  is  to  be  signalized — as  the 
forgers  and  speculators  would  decree  it — as  an  epoch  in  the  legal  history  of 
this  great  State,  when   its  highest  tribunal  pronounced  in   favor  of  an   unmiti- 


212  History  of  the  Bench  and  Bar  of  California. 

gated  fraud,  only  because  an  inferior  tribunal  had  sanctioned  it,  and  because 
the  law  afforded  no  escape  from  its  own  machinations.  Such  reflections  upon 
the  law  are  unwarrantable,  unworthy  of  any  civilized  code,  and  humiliating  to 
listen  to. 

The  Supreme  Court  refused  to  interfere  with  the  probate  of  the  wih,  on 
the  ground  that  the  decree  of  the  Proljate  Court  (M.  C.  Blake,  Judge),  was 
final  and  conclusive,  the  statutory  period  of  one  year  having  elapsed  since 
its  probate,  and  not  subject,  except  on  an  appeal  to  a  higher  court,  to  be  ques- 
tioned in  any  other  court,  or  be  set  aside  or  vacated  by  a  court  of  equity  on 
any  ground.      (20  Cal.,  234.) 

The  estate  was  accordingly  sold,  and  distributed  in  pursuance  of  the  terms 
of  the  "will" ! 

On  April  20,  nSjo,  was  filed  another  petition  for  the  revocation  of  the 
probate  of  the  alleged  will,  the  petitioners  being  Ann  Wilson  and  Ellen  Lynch, 
alleging  the  paper  was  a  forged  one  and  declaring  themselves  to  be  the 
daughters  of  Catherine,  only  sister  of  Broderick's  father,  and  residents  of 
Australia.  In  October,  1872,  the  court  dismissed  the  petition  on  the  ground 
that  it  was  barred  by  the  statute,  not  having  been  filed  within  one  year  after 
the  alleged  will  was  probated.  Mrs.  Lynch,  who  was  a  widow,  and  Mrs. 
Wilson,  and  another  sister,  Mrs.  John  Keiley,  the  husbands  of  the  last  two 
joining,  had  already  commenced  suit  in  ecjuity  in  the  United  States  Circuit 
Court  in  San  Francisco,  against  McGlynn  and  the  several  hundred  holders 
of  the  realty  .under  the  sales.  A  demurrer  was  filed  to  this  petition,  wdiich  the 
Circuit  Court  sustained.  The  petitioners  appealed  to  the  Supreme  Court  of 
the  United  States.  Thereafter  the  Supreme  Court  of  the  United  States  ren- 
dered a  majority  opinion  afifirming  the  judgment  of  the  Circuit  Court. 

In  that  highest  tribunal  the  defeated  claimants  were  represented  by  I. 
T.  Williams  and  S.  H.  Phillips.  Samuel  M.  W^ilson,  of  San  Francisco,  was 
alone  on  the  prevailing  side.  He  argued  that  a  court  of  equity  had  no  juris- 
diction of  the  subject  matter  of  the  suit,  the  same  being  vested  exclusively  in 
the  San  Francisco  Probate  Court,  and  that  the  action  was  barred  by  the  sev- 
eral California  statutes  of  limitation.  He  made  other  contentions,  but  upon 
those  just  mentioned  the  case  was  then  finally  determined. 

It  might  here  be  remarked  that,  in  public  estimation,  the  so-called  Brod- 
erick  will  has  long  since  been  pronounced  a  forgery;  and  in  the  history  of 
enlightened  jurisprudence,  it  stands  as  a  solitary  instance  where  a  will  alleged 
to  be  forged  has  been  upheld  because  courts  exercising  equity  jurisdiction  were 
inadequate  to  give  relief,  even  if  the  fraud  should  be  established  by  proof. 

THE  EDITOR. 


HORACE   HAWES 
c^WILL    CASE^ 

■By    THE    EDITOR 


!^  •^  dfe  t?«  tSa  e?^  1^3  &  &  c^" 


HISTORY  of  the 
BENCH  and  BAR 
of  CALIFORNIA 


"K-  <^  s^  ^T' 


The  HORACE  HAWES  WILL  CASE 


Horace  Hawes,  eccentric  lawyer,  but  useful  legislator,  author  of  the  Consol- 
idation Bill,  which  in  1856  made  the  City  of  San  Francisco  and  the  County  of 
San  Francisco  one  body  politic  and  corporate,  came  to  California  long  before 
the  gold-seekers — so  early  as  April  4,  1847.  He  was  prefect,  or  chief  exec- 
utive officer,  of  the  San  Francisco  district,  1849-50.  He  was  an  assembly- 
man in  1856;  a  State  senator,  1863-64,  and  1865-66;  author,  in  addition  to  the 
Consolidation  Act  of  1856,  of  the  Registry  Law  and  the  act  creating  the  pres- 
ent Justices'  Court  of  San  Francisco,  in  1866.  He  was  born  in  New  York 
in  181 3,  and  died  in  San  Francisco,  March  12,  1871. 

While  holding  the  office  of  prefect,  Hawes  had  a  rupture  with  Governor 
Peter  H.  Burnett  as  to  the  best  way  of  dealing  with  the  town  council  of  San 
Francisco,  which  claimed  the  absolute  right  to  sell  a  large  number  of  building 
lots  owned  by  the  city.  The  council  had  sold  many  lots,  some  of  the  mem- 
bers purchasing  at  the  sales.  Hawes  in  a  proclamation  expressly  charged 
that  "The  members  were  both  the  sellers  and  the  buyers."  Governor  Burnett 
suspended  further  sales  "until  the  legislature  should  pass  some  act  in  reference 
to  said  lands." 

The  Governor  suspended  Hawes,  who  on  April  4.  1850,  petitioned  the  lower 
branch  of  the  legislature  to  impeach  the  Governor  for  usurpation  of  powers. 
The  petition  was  presented  to  the  assembly  by  Speaker  John  Bigler.  at  whose 
suggestion  it  was  laid  on  the  table;  and  it  was  never  acted  on.  Mawes  was 
perfectly  honest  in  the  controversy,  and  manifested  great  legal  ability.  This 
early  episode  in  our  history  furnishes  very  engaging  reading.  (See  Appendix 
to  Proceedings  of  the  Town  Council  of  1849-50.) 

Hawes,  whether  insane  or  not,  made  a  judicious  will,  which  would,  if 
sustained,  have  ke])t  his  family  in  comff)rt  all  their  lives,  and  would  probably 
have  lengthened  their  lives.  He  bequeathed  to  his  widow  $2500  per  annum; 
to  his  only  son,  Horace,  $3600  per  annum;  to  his  only  daughter.  Caroline, 
$3000  per  annum;  to  his  errand  boy,  Thomas  E.  Larkin.  $500;  to  his  sister, 
Lydia,   wife  of  Russell   Martin,   certain   lands  and  a  mortgage   in   Buffalo, 


216  History  of  the  Bench  and  Bar  of  California.     ■ 

New  York;  to  Mrs.  Mary  Hawes,  widow  of  Rev.  Lawrence  Hawes,  $6000; 
and  to  Henry  Ultman,  banker,  of  Racine,  Wisconsin,  $6000  to  be  distributed 
to  two  brothers  of  testator,  John  and  Isaac  Hawes,  and  an  aged  aunt,  ''and 
other  aged  near  relatives,  if  any  there  be  to  his  knowledge  who  need  it.'' 
The  whole  of  his  handsome  estate,  w  itli  the  exception  of  the  few  legacies  just 
mentioned,  he  bequeathed  to  two  institutions  which  he  hoped  to  create,  but 
which  were  never  called  into  being — the  Chamber  of  Industry  to  be  at  San 
Francisco,  and  the  Mont  Eagle  University  in  San  Mateo  county.  Albert 
Hart,  first  librarian  of  the  San  Francisco  Law  Library,  was  named  as  execu- 
tor, with  Edward  R.  vSherburne  as  alternate,  and  the  will  was  witnessed  by 
Stillman  N.  Putnam  and  Alfred  Clark.  It  was  filed  for  probate  April  11, 
1 87 1.     The  estate  was  appraised  at  $401,000.00. 

There  was  one  provision  of  the  will  that  was  carried  out.  Mrs.  Hawes, 
after  she  had  received  letters  of  administration,  erected  over  his  grave  in  Laurel 
Hill,  San  Francisco,  a  block  of  red  granite  from  Scotland,  six  and  a  half  feet 
long,  two  and  a  half  feet  wide,  and  ten  inches  thick.  It  bears,  by  his  request, 
in  addition  to  the  usual  inscription,  the  words,  "Author  of  the  Consolidation 
Act  and  the  Registry  Law." 

The  will  also  directed  tliat,  after  the  lapse  of  one  hundred  years,  the 
granite  slab  should  be  replaced  by  a  monument. 

Who  will  do  this  ?     Nearly  a  third  of  the  century  has  now  passed  ! 

On  May  9,  1871,  the  widow,  by  General  Barnes,  J.  C.  Bates,  and  Alexander 
Campbell,  filed  a  petition  in  contest  of  probate,  based  on  the  grounds:  (i) 
that  the  instrument  offered  was  not  the  last  will  of  the  deceased;  (2)  that 
Horace  Hawes  was  not  of  sound  and  disposing  mind,  and  was  a  person  non 
compos  mentis  when  the  document  was  signed  and  long  prior  thereto;  (3) 
that  the  document  was  not  signed  or  attested  as  required  by  law.  and  (4)  that 
if  the  alleged  will  was  signed  by  Hawes,  it  was  signed  under  restraint,  undue 
influence  and  fraudulent  misrepresentations. 

The  trial  of  this  case  opened  November  14,  1871,  and  lasted  two  weeks. 

Some  ten  (ir  tweh'e  attorneys  appeared,  but  General  Barnes  was  the  prin- 
cipal counsel  for  the  widow,  while  ex- Judge  L.  E.  Pratt,  afterwards  district 
attorney,  was  his  chief  opponent.  The  proceedings  on  the  trial  were  reported 
in  full  and  ])rinted,  making  an  octavo  volume  of  600  pages.  Fifty-five  wit- 
nesses were  examined,  many  of  them  at  great  length.  This  great  contest  was 
watched  with  interest  by  the  people  of  the  whole  Pacific  Coast.  The  fol- 
lowing short  extract  from  General  Barnes'  speech  to  the  jury  will  give  a 
glimpse  of  the  character  of  the  man  whose  will  he  was  opposing  on  behalf  of 
a  worthy  widow  : 

Think  of  a  man  in  hi.s  senses  telling  a  witness  to  take  a  book  and  write 
down  in  it  every  word  he  said;  that  after  his  death  it  wonld  be  jniblished,  and 
a  hundred  years  hence  it  would  be  read  by  more  people,  and  with  greater  interest 
than  the  life  and  doings  of  Jesus  Christ."  Think  of  a  man  whose  insane  idea 
on  the  subject  of  his  own  greatness  was  such  that  when  he  read  an  account  of 
a  public  meeting,  and  of  a  dinner  where  His  Excellency  the  Governor  of  the 


History  of  the  Bench  and  Bar  of  California.  217 

State  presided,  and  where  the  gentlemen  drank  each  other's  health,  and  toasted 
everybody,  he  lay  the  newspaper  down  and  said,  'Neither  Jesus  Christ  nor  I 
was  ever  toasted.'  Gentlemen,  I  hope  that  Mr.  Hawes  w-as  an  insane  man,  for 
if  he  was  not,  if  all  these  acts  and  doings  of  his  were  the  product  of  a  sane 
mind,  whatever  complaint  he  may  have  made  on  the  subject  of  not  having 
been  toasted  on  earth,  he  is  getting  plenty  of  it  now. 

The  jury  were  not  long  in  agreeing  upon  a  verdict  for  the  contesting 
widow.     The  latter  paid  to  General  Barnes  a  fee  of  $30,000. 

On  the  24th  day  of  February,  1871,  a  fortnight  before  his  death,  Hawes 
executed  a  deed  of  real  estate  to  Horatio  Stebbins,  the  eminent  Unitarian 
divine,  and  to  Horace  Davis,  J.  W.  Britton,  George  H.  Howard,  and  Edward 
P.  Evans,  in  trust,  for  the  establishment  and  maintenance  of  an  institution  for 
the  diffusion  of  knowledge,  to  be  called  the  "Mont  Eagle  University."  In 
this  deed  Hawes  reserved  to  himself  an  estate,  coupled  with  the  possession 
and  the  rents  to  continue  for  and  during  his  natural  life." 

Upon  his  death  the  grantors  in  trust  took  possession  of  the  property. 

Mrs.  Hawes  sued  them  in  the  old  Twelfth  District  Court,  San  Francisco, 
to  recover  the  property.  She  obtained  judgment,  upon  a  demurrer  to  the 
answer,  and  the  Supreme  Court  were  of  one  mind  in  sustaining  the  lower 
court,  except  that  Justice  McKinstry  did  not  take  part  in  the  decision.  The 
court,  by  Justice  A.  L.  Rhodes,  held  that  in  this  State,  following  the  common 
law  of  England,  an  estate  of  freehold  cannot  be  granted  to  commence  in 
futiiro  without  the  creation  at  the  same  time  of  a  particular  estate,  which 
vests  the  immediate  estate  in  some  other  person;  that  a  deed  which  conveys 
an  estate  of  freehold  to  commence  upon  the  death  of  the  grantor,  but  reserves 
to  the  grantor  the  use,  enjoyment  and  possession  of  the  property,  during  his 
natural  life,  is  void. 

Horace  Hawes,  Jr.,  the  only  son  of  Horace  Hawes,  was  defeated  by  Hon. 
William  T.  Wallace  for  the  assembly  in  the  fall  of  1882.  He  died  at  Red- 
wood City,  December  19,  1884,  leaving  to  his  widow  and  two  children  an 
estate  worth  $200,000. 

Mrs.  Hawes  died  at  Redwood  City  in  August,  1895.  A  writer  of  the 
time,  while  representing  her  as  a  kind,  loving  and  gentle  woman,  said  that 
she  had  spent  her  portion  of  the  estate  with  a  prodigality  seldom  excelled. 
We  (juote : 

Young  Horace,  of  whom  his  father  had  expected  so  much,  was  given  large 
sums  to  spend  at  an  age  when  he  should  have  been  in  school.  Early  in  his  life 
his  mother  conceived  the  idea  that  Horace,  Jr.,  should  tour  the  world,  which 
he  did  at  an  enormous  expense,  the  Rev.  H.  E.  Jewett  traveling  as  his  companion. 
When  he  returned  his  mother  spent  $25,000  in  purchasing  him  a  seat  in  the 
San  Francisco  Stock  Exchange.  So  the  money  went  until  there  was  nothing 
left  for  her  own  use. 

Horace  married  the  sister  of  the  wife  of  Timothy  Guy  Phelps  when  he  was 
only  a  boy.  His  wife  was  several  years  his  senior.  Horace  had  inherited 
some  of  his  father's  talent,  but  he  never  applied  himself,  and  consequently 
entered  no  profession.  When  only  23  he  conceived  the  idea  that  he  would  like 
to  go  to   congress,    but    failing    to    secure    the    nomination    he    solaced    himself 


218  History  of  the  Bench  and  Bar  of  California. 

later  on  by  accepting  the  nomination  for  the  State  assembly.  In  this  political 
campaign  he  exerted  all  the  energy  of  his  nature,  but  met  defeat.  His  failure 
was  an  awful  blow,  and  a  very  few  days  after  the  returns  came  in  he  was  in 
bed  with  a  deadly  fever  upon  him.  He  lived  only  a  short  time,  and  even  when 
the  shadow  of  death  was  upon  him  he  wept  over  what  he  termed  the  ingratitude 
of  the  companions  of  his  boyhood,  who  had   voted  against  him. 

His  widow    soon   after   his   death   married   J.    B.    Schroeder. 

Caroline  Hawes,  the  young  and  beautiful  daughter,  had  a  handsome  dowry, 
after  the  will  was  broken,  and  when  she  was  i8  she  married  James  A.  Robinson, 
the  son  of  a  distinguished  pioneer.  Shortly  after  his  marriage  he  bought  into 
the  tea  firm  of  Macondray  &  Co.,  and  has  prospered  there  ever  since.  Mr.  and 
Mrs.  James  A.   Robinson  are  prominent  members  of  the  400  in   San   Francisco. 

After  Mrs.  Hawes  had  spent  all  of  her  wealth  on  her  children  and  her  friends 
she  made  the  Robinson  country  seat  at  Redwood  City  her  home.  The  change 
in  her  fortune  never  made  her  downcast.  She  seemed  quite  as  happy  in  poverty, 
surrounded  by  her  sweet-faced  grai^d-children,  as  she  ever  had  been  while  mis- 
tress of  the  big  Hawes  mansion,  which  came  to  be  the  property  of  Mrs.  Moses 
Hopkins. 

THE  EDITOR. 


LEGAL  EDUCATION 

^    e^    ejp     6^       W  THE       i^    ^    ^    <f> 

STATE  UNIVERSITY 


BY  GUSTAV  GUrSCH 


Gustaw   Guhch 


■23  h  c&  <'h  t&  tJ3  -ia  cib  &  a 

HISTORY  of  the 
BENCH  and  BAR 
of  CALIFORNIA 


cja  ojp  Of,  o>r.  c^)  .^  ">!'  "^  <«»  * 


LEGAL  EDUCATION  in  the 
STATE  UNIVERSITY 


As  an  important  factor  in  the  development  of  the  law  of  this  State,  the 
University  of  California  demands  special  consideration. 

Hastings  Law  College  had  existed  since  1878,  and  attained  great  influence 
under  such  able  lawyers  and  teachers  as  John  Norton  Pomeroy,  Charles  W. 
Slack,  Elisha  W.  McKinstry  and  others.  But  it  was  felt  that  in  modern  life, 
and  particularly  in  this  country,  where  every  citizen  takes  more  or  less  of  an 
active  part  in  the  government  of  states  and  municipalities  and  in  the  enactment 
and  application  of  the  laws,  the  study  of  jurisprudence,  at  least  in  its  general 
principles,  should  not  be  left  to  those  alone  who  wish  to  make  the  law  their 
profession,  or  to  any  particular  class  such  as  is  still  found  in  other  countries, 
for  instance  in  England,  but  that  it  should,  and  in  the  course  of  time  imist, 
form  part  of  the  education  of  every  well-bred  man;  for  as  the  light  of  intelli- 
gence and  knowledge  spreads  and  extends  to  the  great  mass  of  the  voters, 
it  is  evident  that  a  government  which  is  to  satisfy  the  entire  people  must  and 
ultimately  will  be  entrusted  to  those  educated  and  intelligent  citizens  who  are 
able  to  understand  the  wants  of  the  different  callings,  occupations,  professions 
or  trades,  and  to  do  justice  to  everybody.  This  cannot  be  accomplished  by  any 
special  class  of  men  trained  in  the  law ;  for  the  exclusiveness  of  a  purely 
legal  education  unfits  them,  unaided,  for  a  task  of  such  scope  and  mag- 
nitude; and  yet,  as  the  law  pervades  every  part  of  our  political  life,  it  will  be 
necessary  for  every  one,  without  exception,  ])articipating  in  the  proposing, 
framing,  enacting  or  applying  of  our  laws,  to  fully  and  clearly  comprehend 
at  least  the  general  principles  underlying  those  laws.  Moreover,  he  should 
have  a  fair  knowledge  of  the  history  of  this  country,  and  jierhaps  of  other 
countries,  for  historical  experience  is  one  of  the  best  tests  of  sound  legislation ; 
and  the  history  of  the  civilized  nations  of  modern  times — which  becomes  more 
and  more  important  as  compared  with  the  history  of  antiquity — is  not.  as  his- 
tory was  formerly,  an  account  of  wars  and  conquests  or  the  succession  of  rulers, 
but  a  description  of  the  inner  progress  and  of  the  peculiar  manners,  customs 


222  History  of  the  Bench  and  Bar  of  California. 

and  laws  of  each  people,  together  with  a  comparison  of  the  practical  effects 
thereof  shown  in  each  case. 

These  and'  similar  ideas  led  to  a  desire  to  emhody  in  the  general  courses  of 
a  higher  education  attainable  in  our  State  University  an  instruction  in  the  his- 
tory and  principles  of  the  law  which  would  he  accessible  to  such  of  the  students 
as  were  not  able  or,  for  any  reason,  did  not  wish  to  follow  the  lectures  at  the 
Hastings  College,  and  also  to  those,  who,  before  entering  upon  the  more  special 
and  exclusive  study  of  the  law%  might  choose  to  complete  their  education  in 
other  departments  of  university  knowledge. 

The  development  of  a  school  of  jurisprudence  has  been  in  the  mind  of  Mr. 
William  Carey  Jones  since  1882,  when  he  was  appointed  instructor  in  United 
States  history  and  constitutional  law.  In  the  same  year  he  began  a  course  on 
Roman  law.  A  year  or  two  later  he  undertook  a  more  comprehensive  course 
in  jurisprudence,  using  Holland's  text-book.  In  1891  he  introduced  Inter- 
national Law.  By  1892  he  had  succeeded  in  bringing  into  the  university  cur- 
riculum courses  in  Roman  Law,  International  Law,  Constitutional  Law  and 
the  Principles  of  Jurisprudence.  During  the  year  1892-93  he  was  given  a  leave 
of  absence  for  study  in  Europe,  having  justified  the  existence  and  development 
of  legal  study  in  the  academic  colleges.  In  recognition  of  his  work  and  of  the- 
value  of  such  a  dei)artment,  the  regents  in  1894  gave  Professor  Jones  the 
official  title  of  professor  of  jurisprudence,  and  he  became  the  head  of  what 
has  developed  into  a  new  and  independent  department. 

Through  the  untiring  and  energetic  efforts  of  Professor  Jones  and  tlie  pop- 
ularity of  his  courses,  the  number  of  students  in  the  new  department  grew  very 
rapidly;  and  in  1898  it  was  resolved  by  the  regents  that  graduates  of  the  uni- 
\ersity  who  had  satisfactorily  passed  certain  courses,  embracing  the  most 
important  principles  of  the  laws  of  real  property,  contracts,  torts  and  crimes, 
as  well  as  the  history  of  common  law,  should,  on  the  recommendation  of  the 
Department  of  Jurisprudence,  be  admitted  to  the  middle  class  of  the  Hastings 
Law  College,  thereby  shortening  their  regular  term  at  the  latter  school  by  one 
year. 

Following  out  the  original  idea  which  led  to  the  organization  of  the  new 
department.  Professor  Jones,  in  conjunction  with  the  board  of  regents,  endeav- 
ored to  give  variety  and  at  the  same  time  a  more  universal  scope  to  the  study 
l)y  interesting  others  in  the  plan.  Among  those  who  seemed  best  qualified 
to  carry  the  same  into  further  practical  execution  was  Mr.  Louis  T.  Hengstler, 
then  assistant  professor  of  mathematics  at  the  imiversity  and  assistant 
professor  of  law  in  the  Hastings  College.  The  descendant  of  a  family  of 
lawyers  in  Germany,  Mr.  Hengstler  had  received  his  university  education  in 
that  country.  Not  long  after  his  arrival  in  California,  in  1886,  he  was  admitted 
to  the  bar  by  the  Supreme  Court  and  for  several  years  was  engaged  in  the 
practice  of  law  at  San  Francisco.  Being  a  mathematician,  however,  as  well  as 
a  lawyer,  he  accepted  a  call  to  the  University  of  California,  which  at  first 
caused  him  to  devote  his  entire  attention  to  mathematics.     But  his  love  of  the 


History  of  the  Bench  and  Bar  of  California.  223 

law  could  not  be  thus  extinguished,  and  having,  for  a  while,  divided  his  time 
between  the  mathematical  department  of  the  university  and  the  Hastings 
College  of  the  Law  at  San  Francisco,  he  was,  in  1898.  at  his  own  request,  as- 
signed to  the  new  department,  with  the  official  title  of  assistant  professor  of 
jurisprudence,  and  given  charge  of  the  courses  on  elementary  law,  criminal  law, 
torts,  and  on  public  and  private  international  law.  Next  to  Professor  Jones  him- 
self, the  success  of  the  latter's  enterprise  is  mainly  due  to  Professor  Hengstler's 
good  judgment  and  industry. 

The  number  of  students  availing  themselves  of  the  opportunity  for  widen- 
ing their  general  and  special  knowledge  grew  steadily,  until  it  passed  the  num- 
ber of  300,  enrolled  in  the  various  courses.  New  teachers  were  then  sought  and 
found.  Curtis  H.  Lindley  and  Gustav  Gutsch,  both  members  of  the  San  Fran- 
cisco bar,  were  prevailed  on  to  give  weekly  lectures  at  Berkeley.  Their  engage- 
ment was  "honorary" — as  the  university  funds  were  then  at  ebb  tide; — but 
no  amount  of  pecuniary  consideration  could  have  increased  the  zeal  and  zest 
with  which  each  of  them  devoted  himself  to  his  task,  and  no  students  ever 
listened  to  their  teachers  more  attentively  or  with  greater  enthusiasm  than  those 
who  attended  the  lectures  of  these  two  practical  lawyers.  Mr.  Lindley  (the 
author  of  the  famous  work  on  mines)  chose  for  his  principal  subjects  the 
public  land  system,  the  methods  by  which  the  government  acquires  and  dis- 
poses of  its  lands,  and  the  genesis,  development  and  theories  of  the  law  of 
mines  and  the  law  of  water  as  applied  in  A\"estern  America ;  and  Mr.  Gutsch 
(who  enjoys  the  distinction  of  being  the  only  J.  U.  D.,  doctor  of  civil  and  canon 
law,  of  the  San  Francisco  bar)  successfully  illustrated  the  idea  that  nothing 
is  more  conducive  to  a  full  and  critical  understanding  of  our  own  laws  than  a 
comparison  with  the  principles  and  development  of  foreign  laws  by  engaging 
his  listeners  in  a  close  study  of  the  history  of  modern  European  codification 
and  in  a  comparison  of  the  leading  principles  of  domestic  and  foreign  pro- 
cedure. 

With  such  men  at  work,  and  such  interest  in  the  ne^^■  department  shown  on 
all  sides,  the  latter  is  certain  to  make  its  influence  felt  and  to  aid  most  mate- 
rially in  raising  the  scientific  standard  of  the  ])rofession  throughout  the  State. 

GUST  Ay  GUTSCH. 

San  Francisco,  Cal. 


THE  FIELD  OF  HONOR 


"BY   7HE   EDITOR 


&&A(S3 1&  &  &  sli  tjia  i3e 


HISTORY  of  the 
BENCH  ^nd  BAR 
of  CALIFORNIA 


The  FIELD  of  HONOR 


JAMES  W.  DENVER  AND  EDWARD  GILBERT  AND 
THEIR  FATAL  DUEL  IN  J  852 

This  fatal  meeting  took  place  as  early  as  August  2,  1852.  It  was  the 
most  notable  duel  that  occurred  in  California  prior  to  that  between  Johnston 
and  Ferguson,  in  August,  1858.  Truman's  "Field  of  Honor"  does  not  give 
the  date,  l)ut  the  account  there  found  is  nearly  correct.  This  duel  caused 
more  sensation  and  sorrow  throughout  the  State  than  any  other  before  or 
since,  excepting  that  of  Terry  and  Broderick  in  1859.  Like  all  the  single 
combats  that  threw  the  State  into  alarm,  it  was  between  leaders  of  opposing 
political  parties. 

We  will  reproduce,  first.  Major  Truman's  narration : 

A  description  of  the  fatal  meeting  between  Hon.  Edward  Gilbert  (at  the 
time  editor-in-chief  of  the  Daily  Alta  California)  and  General  James  W.  Denver 
(then  secretary  of  State  of  California)  is  presented  as  one  of  the  most  dramatic 
and  conspicuous  affairs  of  this  character.  The  legislature  of  California,  at  its 
session  of  1852,  had  passed  a  bill  to  provide  for  the  sending  of  relief  to  over- 
land emigrants  who  might  be  in  a  destitute  condition,  or  exposed  to  danger 
from  hostile  Indians.  Tliis  bill  re(|uired  the  governor,  who  had  made  the 
recommendation  to  the  legislature,  to  raise  a  company  and  supply  trains  suffi- 
cient to  meet  the  necessities  which  might  exist  during  the  season.  The  governor 
had  obeyed  these  instructions,  and  had  marched  in  front  of  the  train  through 
the  capital  of  the  State  as  it  was  setting  out  upon  its  humane  expedition.  Mr. 
Gilbert  vigorously  opposed  this  whole  measure,  frankly  stating  that  he  believed 
the  movement  was  designed  for  the  purpose  of  making  political  capital,  and  that 
it  would  be  a  heavy  expense  to  the  State,  and  render  little  aid  to  the  emigrants. 
When  the  press  announced  the  departure  of  the  supply  train,  and  complimented 
the  governor,  who  escorted  it  out  of  Sacramento,  Mr.  Gilbert  ridiculed  the 
parade  and  the  show  that  was  made  about  it,  and  intimated  that  the  whole  thing 
was  projected  to  increase  the  governor's  popularity.  General  Denver,  who  was 
connected  with  the  relief  train,  and  who  was  a  personal  friend  of  Governor 
Bigler,  replied  to  Mr.  Gilbert's  articles  by  publishing  a  card,  in  which  he  made 
use  of  unmistakably  discourteous  language.  Mr.  Gilbert  replied,  and  General 
Denver  retorted.  A  challenge  was  immediately  sent  to  (Jcneral  Denver,  and 
accepted,  and  rifles  selected  as  weapons.     Mr.  Gilbert  fell  at  the  second  shot  and 


228  History  of  the  Bench  and  Bar  of  California. 

expired  in  less  than  five  minutes.  The  victim  was  a  native  of  Albany,  New 
York,  and  was  a  member  of  the  convention  to  form  the  constitution  for  the 
State  of  California,  and  immediately  after  her  admission  into  the  Union  was 
chosen  a  representative  to  congress.  He  was  only  thirty-three  years  of  age  at 
the  time  of  his  death,  had  been  a  pioneer  of  the  daily  press  of  San  Francisco, 
and  was  an  earnest  if  not  brilliant  writer.  The  author  has  carefully  perused 
a  great  many  accounts  of  this  melancholy  affair,  which  agree,  in  the  main, 
with  the  foregoing.  In  1880,  General  Denver's  name  was  mentioned  in  connec- 
tion with  the  Democratic  nomination  for  the  presidency,  which  prompted  the 
New  York  Herald  to  reproduce  a  description  of  this  episode  in  Denver's  life, 
which  it  is  presumed  should  or  would  handicap  Denver  for  such  eminent  prefer- 
ment. This  article  was  replied  to  by  Mr.  W.  A.  Cornwall,  of  San  Francisco,  as 
follows,  in  a  communication  to  that  paper: 

"The  San  Francisco  Bulletin  republished  an  article  from  the  Herald,  in 
which  General  James  W.  Denver  is  mentioned  as  an  eligible  candidate  for 
the  presidency.  In  it  reference  is  made  to  the  fact  that  at  the  time  Denver  was 
secretary  of  State  of  California,  he  engaged  in  a  duel  with  Edward  Gilbert,  who 
was  then  editor  of  the  .llta  California.  The  article  is  prejudicial,  because  it 
does  not  detail  the  circumstances  connected  with  that  fact  and  the  deplorable 
duel.  The  incident  of  which  it  was  the  result  was  an  article  published  in  the 
Alta-California  respecting  a  family  named  Donner,  which  perished  en  route 
in  its  attempt  to  emigrate  overland  to  California  in  1850.*  The  State,  learning 
of  the  distress  of  the  emigrants,  provided  means  for  their  relief;  and  the  duty 
of  dispensing  it  was  delegated  to  the  secretary  of  State.  This  was  prompt 
and  humane,  but  it  was  bitterly  criticised  and  sharply  assailed  by  Gilbert.  Denver 
is  a  clear-headed,  sound  man.  sensitive  and  brave.  He  retorted,  and  his  retort 
was  terrible.  Gilbert,  who  was  a  member  of  Colonel  Stevenson's  New  York 
regiment,  challenged  Denver,  and  the  parties  went  upon  the  field.  The  weapons 
were  rifles,  at  short  range ;  and  I  assert,  as  a  witness,  that  no  man  in  the  tide 
of  all  the  centuries,  ever  displayed  a  more  dauntless  temper  than  Denver.  He 
knew  that  Gilbert  was  a  brave  soldier,  and  that  he  was  reckoned  to  be  a  deadly 
shot.  Nevertheless,  Denver  reserved  his  fire,  and  purposely  threw  away  his  own. 
Happily,  Denver  escaped  untouched.  Every  effort  was  then  made  by  the  seconds 
and  by  mutual  friends  for  peace;  Gilbert  was  informed  that  his  antagonist  wished 
to  clasp  hands,  but  Gilbert  refused  the  request  in  terms  which  showed  his 
friends  that  he  had  determined  to  kill  Denver.  TTie  principals  returned  to  their 
positions. 

"Now,"  said  Denver,  in  a  tone  I  shall  never  forget,  'T  must  defend  myself." 
And  at  the  word  Gilbert  fell,  pierced  through  the  heart. 

"I  assert  that  no  man  more  than  Denver  disdains  this  deadly  mode  of  arbi- 
tration, but  Washington  himself  would  have  defended  his  own  life.  He  oft'ered 
it,  like  Denver,  to  his  country.  He  would  have  defended  it  as  a  trust  and  legacy 
from  the  Creator.  He  was  an  impersonation  of  the  great  thought,  Duke  et 
decorum  est  pro  patria  mori." 

In  1884,  General  Denver's  name  was  again  mentioned  in  connection  with 
the  Presidential  nomination,  and  Judge  Edward  McGowan,  on  the  17th  of 
April,  1884,  wrote  as  follows  from  Washington  to  the  San  Francisco  Evening 
Post: 

"In  my  obituary  notice  of  the  late  Judge  McCorkle  I  inadvertently  referred 
to  the  duel  between  General  James  W.  Denver,  now  a  resident  of  this  city,  and 


*  The  year  was  1852 ;  and  it  was  not  the  Donner  party.  Their  year  was  as 
early  as  1847,  and  they  did  not  all  perish.  See  our  sketches  of  William  G. 
Murphy  and  Judge  James  F.  Breen. — EDITOR. 


History  of  the  Bench  and  Bar  of  California.  229 

Edward  Gilbert,   founder  of  the  Alta  California  of  your  city,   which  took  place 
over  thirty  years  ago  at  "The  Oaks,"  forty  miles  from  Sacramento.*     General 
Denver  will  be  a  candidate  for  President  before  the  Democratic  National  Con- 
vention, which  will  meet  in   Chicago  on  the  8th  of  July,  and  the  old  story  of 
censure,  which  was  cast  upon  him  by  the  anti-duellists  and  the  friends  of  Mr. 
Gilbert  at  the  time  the  affair  came  off,  has  been  revived  in  certain  circles  in 
this  city  to  his  great  detriment,  although  he  was  not  altogether  to  blame  for 
the  taking  off  of  Mr.  Gilbert,  as  every  opportunity  w-as  afforded  Gilbert's  friends 
by  the  friends  of  General  Denver  for  a  settlement  of  the  difficulty  without  a 
further  resort  to  arms,  after  one  shot  had  been  exchanged  between  the  parties 
without  either  being  hit.     At  the  time  of  the  duel  General  Denver  was  secretary 
of   State,   under    the    administration    of    the    late    Governor   John    Bigler.      The 
meeting  was  caused  by  a  severe  article  in   the  Alta  California,  an   opposition 
press,  criticising  the  conduct  of  the  governor  in  appointing  General  Denver  to 
the  head  of  the  expedition  over  the  mountains  for  the  relief  of  the  emigrants. 
This  was  at  the  time  a  position  of  the  most  difficult  and  responsible  character. 
Denver  replied  to  these  strictures  of  the  Alta  in  pretty  severe  terms,  and  Mr. 
Gilbert,  being  the  responsible  editor,  sent  a  challenge.     General  Denver  threw 
his  first  shot  away — ^being  an  expert  with  the  rifle,  although  his  opponent  was  no 
novice  in  the   use  of  firearms.     After  the  first  fire  a  proposition   was  made  by 
the  friends  of  the  challenged  party  to  adjust  the  affair.     This  the  friends  of  Mr. 
Gilbert  refused  to  assent  to.     General  Denver  then  threw  off  his  coat  and  took 
his  position,  making  a  remark  to  one  of  his  friends — Dr.   Wake  Brierly — about 
"not  standing  here  all  day  to  be  shot  at."     At  the  second  fire  Mr.  Gilbert  fell 
dead — pierced    through   the   heart   by   a   bullet   from   his   opponent's    rifle.      Mr. 
Gilbert  himself   would   not   agree   to    a    settlement,    fearing   he   w'ould   be   com- 
promised.    He   had   had   a  previous  difficulty  with  John   Nugent,   editor  of  the 
San  Francisco  Herald,   and   the  affair   was   adjusted   without   resorting   to   the 
field  of  honor,  and  it  was  reported  that  Mr.  Nugent  had  the  best  of  the  settle- 
ment.    If  this  were  true,  it  was  a  wrong  settlement.     All  adjustments  of  affairs 
of  honor  should  be  made  without  casting  a  shadow  of  doubt  upon  the  standing 
of  either  partj'  as  a  gentleman  and  man  of  courage.    General  Denver  was  elected 
to  congress'  from  California,  serving  in  that  body  in  the  year  1855-6.     His  col- 
league was  Colonel  Philemon  T.  Herbert,  who  since  received  his  death-wound 
at  the  battle  of  Mansfield,   Texas,   while   in   command   of  the   Seventh   Texas. 
Denver  was   also  appointed   governor  of  the  territory  of  Kansas,  by   President 
Buchanan,   during  'border-ruffian'   days.     His  predecessors   during  the  contests 
of  the  free-state   and   pro-slavery   men    for   the    supremacy   in   that   territory   in 
those  bloody  days  of  that  internecine  strife,  were  Robert  J.  Walker,  Edwin  M. 
Stanton,  ColoneL  John    W.   Geary,   first   mayor  of   San    Francisco,  and   Wilson 
Shannon,  afterward   a   resident  of   California.     All   of  these   men   had   wrought 
faithfully,  in   vain,   in   the  work  of  pacification,  and   had   either  thrown   up   the 
task  in  despair,  or  had  been  removed  by  the  President  for  inefficiency.     While 
governor  of  Kansas,  Denver  held  the  respect  of  the   free-state  men ;   and  the 
late  Albert  D.  Richardson  speaks  of  him  in  his  well  known  work,  'Beyond  the 
Mississippi.'     He  says:     'Though  a   Buchanan  Democrat,  Denver  proved  more 
fair  and  just  than  any  previous  governor  of  Kansas.     During  the  rebellion  he 
won  a  brigadier-generalship  in  the  Union   service,  and  the  thriving  metropolis 
of  Colorado  still  perpetuates  his  name.'     He  is  now  president  of  the  Mexican 
Veteran  Association,  and  did  good  service  among  his  congressional   friends  for 
the  passing  of  a  bill  for  a  pension  to  the  Mexican  veterans,  which  bill  the  house 
passed  this  session." 
Tn  commenting  on  the  departure  of  tlie  relief  train,  the  Alta,  of  June  26, 
1852.   said  : 


*Only  six  mWts.— EDITOR. 


230  History  of  the  Bench  and  Bar  of  California. 

"Previous  to  their  departure,  the  train,  consisting  of  eight  wagons,  was 
paraded  through  the  principal  streets  of  Sacramento  with  a  lar^e  placard  on 
each,  bearing  in  enormous  capitals  the  words,  'The  California  Relief  Train.' 
Governor  Bigler  was  silly  enough  to  make  himself  ridiculous  by  riding  on  horse- 
back at  the  head  of  the  procession  ;  and  it  only  needed  the  addition  of  an  ear- 
splitting  brass  band  to  have  made  people  believe  it  a  parade  of  newly  arrived 
groiind-and-lofty  tumblers,  or  a  traveling  caravan  of  wild  animals." 

Nearly  a  month  after  this  article  appeared  General  Denver,  who  had 
accompanied  the  train  for  a  part  of  it.s  journey,  intending  to  remain  with  it 
during  the  fall  of  the  year,  had  inserted  in  the  Sacramento  Democratic  State 
Journal  of  July  24th.  a  card  signed  by  himself,  and  the  ten  other  members 
of  the  relief  train.  In  this  they  set  forth  that  they  "had  read  with  indigna- 
tion a  statement  of  the  Alta  California,  in  which  it  is  made  to  appear  that 
Governor  Bigler  had  made  himself  ridiculous,"  etc.  They  further  declared, 
"We  are  well  satisfied  that  none  but  a  personal  enemy  could  imagine  any 
such  thing,  and  that  enemy  must  be  of  the  smallest  possible  caliber,  who  could 
descend  so  low  as  to  pervert  facts,"  etc. 

The  Alta  of  July  26th  returned  to  the  attack  by  publishing  an  article  under 
the  heading  of  "Governor  Bigler's  Attempt  to  Manufacture  Political  Capital 
Out  of  the  California  Relief  Train."  In  this  article  the  paper  reiterated  its 
statements  of  June  26th.  and  added  : 

"If  any  gentleman  attached  to  the  train,  or  any  other  friend  of  the  governor, 
desires  to  make  issue  upon  the  matter,  they  know  where  to  find  us." 

Denver  replied  by  a  communication  to  the  Democratic  State  Journal  of  July 
29th,  in  which  appeared  the  following  passage : 

"If  the  editor  of  the  Alta  thinks  himself  aggrieved  by  anything  I  have  said 
or  done,  it  is  for  him  to  find  me,  and  when  so  found,  he  can  rest  assured  he 
can  have  any  'issue  upon  the  matter'  he  may  desire.  Lest  he  shall  have  an  excuse 
that  he  did  not  know  where  to  find  me,  I  will  state  that  during  the  summer  I 
shall  be  engaged  with  the  Relief  Train,  and  on  the  first  Monday  in  January 
next  I  expect  to  be  in  Vallejo." 

This  called  forth  a  personal  letter  from  Gilbert  to  Denver,  in  which  the 
former  stated  that  he  was  the  author  of  both  articles  that  had  appeared  in 
the  Alta.  and  concluded  by  saying: 

"I  find  it  my  duty  to  demand  from  you  a  withdrawal  of  the  ofifensive  and 
unjust  charges  and  insinuations  which  you  have  made." 

Denver  immediately  replied  that  "not  one  word  of  the  cards  you  allude 
to  can  be  withdrawn  by  me.  until  the  articles  calling  them  forth  have  been  with- 
drawn by  you." 

We  take  what  follows  from  a  well-written  story  which  appeared  in  the 
San  Francisco  Post,  October  5th,  1895: 

The  aflfair  had  by  this  time  assumed  a  serious  phase.  Gilbert  sought  out 
his  friend.  Henry  F.  Teschemacher,  and  requested  him  to  tender  a  challenge 
to  Denver.  Teshemacher  was  a  man  of  the  highest  standing,  afterwards  being 
elected  mayor  of  San  Francisco. 

On  the  receipt  of  the  challenge  Denver  named  Vincent  E.  Geiger  as  his 
second. 

At  sunrise  on  Monday,  August  2,  the  duel  took  place.  It  was  one  of  the 
most  beautiful  of  midsummer  mornings,  and  as  the  rays  of  sunlight  filled  the 
sky,  nature  seemed  to  awaken  everywhere,  and  soon  the  world  was  filled  with 


History  of  the  Bench  and  Bar  of  California.  231 

joyous  sounds,  which  little  befitted  the  tragic  scene  about  to  be  enacted.  The 
preliminaries  were  quickly  arranged,  the  distance  named  being  forty  paces.  As 
the  principals  came  upon  the  field  and  faced  one  another,  they  met  for  the 
first  time.  Both  were  unflinchingly  brave  men — Denver  willing  to  make  peace 
or  fight  to  the  death,  and  Gilbert  possessed  of  a  stubborn  determination  that 
nothing  but  blood  should  atone  for  what  had  passed. 

Denver's  second  won  the  word,  and  the  first  interchange  of  shots  quickly 
followed.  Both  men  missed  their  marks;  both  stood  uninjured.  The  sun  was 
now  well  up,  and  in  the  full  glory  of  the  newborn  day  the  two  men  stood  ready, 
waiting  for  the  second  shot.  The  word  was  given,  and  almost  immediately 
Gilbert  fell.  General  Denver  was  uninjured.  All  quickly  gathered  about  Gil- 
bert as  he  lay  apparently  unconscious  on  the  ground. 

His  friend  Livingston  raised  his  prostrate  form,  and  held  him  in  his  arms 
while  the  surgeon  attempted  a  hasty  examination.  But  Gilbert  was  already 
beyond  all  earthly  aid,  for  he  expired  in  the  arms  of  his  friend  in  less  than 
five  minutes  from  the  time  when  the  fatal  shot  was  fired. 

News  of  the  duel  quickly  spread  in  Sacramento,  and  the  most  intense  sen- 
sation was  produced.  The  mayor  of  the  city  appointed  Jos.  W.  Winans  and 
Gilbert's  sorrowing  friend,  Livingston,  on  behalf  of  the  citizens  of  Sacramento, 
to  convey  the  body  to  San  Francisco.  It  was  brought  down  on  the  steamer 
Antelope,  and  on  its  arrival  in  San  Francisco  was  conveyed  to  the  home  of 
Edward  Conner,  assistant  editor  of  the  Alta.  The  city  was  filled  with  gloom 
over  the  tragic  affair,  and  elaborate  arrangements  were  made  for  the  funeral, 
to  take  place  the  next  day.  Everywhere  was  an  aspect  of  general  mourning. 
On  the  day  of  the  funeral  merchants  closed  their  places  of  business,  flags  were 
displayed  at  half-mast  and  all  classes  of  citizens  turned  out  en  masse  to  honor 
the  dead  editor.  The  attendance  was  the  largest  ever  known  up  to  that  date. 
Tlie  Herald.  News,  IJliig  and  Journal  of  Commerce,  all  appeared  in  mourning, 
Gilbert  was  buried  in  the  old  Yerba  Buena  Cemetery,  and  his  body  rested  where 
the  corner  stone  of  the  new  City  Hall  now  stands. 

General  Denver  was  never  molested  for  the  part  he  took  in  the  unfortunate 
affair. 

Inasmuch  as  General  Denver  was  a  lawyer  by  profession,  we  may  add  the 
following.  He  was  born  in  Winchester,  Va.,  October  23,  1817.  He  was  a 
farmer's  son,  and  began  the  study  of  law  in  1842  in  Ohio.  He  was  graduated 
at  the  Cincinnati  Law  School  in  the  spring  of  1844.  He  went  to  Platte  City, 
Missouri,  and  studied  law,  but  it  seems  that  the  War  with  Mexico  turned 
him  away  from  the  legal  profession.  He  raised  a  company  of  infantry,  was 
appointed  its  captain,  and  served  under  General  Scott  to  the  end  of  the  war. 
In  1850  he  crossed  the  plains  to  California.  He  was  very  soon  elected  to 
the  State  Senate  for  Trinity  and  Klamath  counties,  and  served  at  the  ses- 
sions of  1852  and  1853.  He  was  Secretary  of  State  fn^m  February,  1853, 
to  November,  1855,  when  he  resigned.  He  was  a  representative  in  Congress 
from  March,  1855,  to  March,  1857.  He  was  Governor  of  Kansas  Territory 
in  1857-58.  After  a  brief  sojourn  in  California  he  settled  in  Ohio.  In  the 
Civil  War  lie  was  a  Brigadier-General  of  xohuitecrs.  resigning  from  ihe 
Army  in  March,  1863.  General  I)en\cr  died  in  Wasliington,  D.  C,  .\ugust 
8,   1894. 


232  History  of  the  Bench  and  Bar  of  California. 


THE  BRODERICK-SMITH  DUEL,  1852 

Of  this  encounter  we  give  the  hvcly  narrative  of  Charles  P.  Diiane.  who 
witnessed  it : 

There  arc  very  few  people  who  are  aware  of  the  fact  that  David  C.  Brod- 
erick  ever  fought  a  duel  previous  to  the  one  in  1859,  when  he  lost  his  life.  In 
1852  Broderick  received  a  challenge  to  fight  a  duel  from  Judge  Smith,  the  son 
of  ex-Governor  Smith  of  Virginia,  who  was  better  known  as  "Extra  Billy" 
Smith.  Judge  Smith  was  also  a  brother  of  Austin  Smith,  who  was  killed  in  the 
late  war  while  fighting  in  the  Confederate  service.  At  that  time  a  man  who 
refused  to  accept  a  challenge  was  not  permitted  to  move  in  what  was  considered 
good  society.  He  was  treated  with  contempt  and  looked  upon  as  a  coward.  Of 
course.  Broderick  accepted  his  challenge,  and  the  ground  was  selected  for  the 
duel  across  the  bay,  about  where  the  center  of  the  city  of  Oakland  now  is. 
There  were  but  a  few  shanties  there  then,  and  they  were  located  on  the  shore, 
where  the  foot  of  Broadway  street  is.  As  soon  as  the  news  was  spread  that  the 
place  for  the  fighting  had  been  fixed  upon,  every  Whitehall  boat  in  the  harbor 
was  engaged  in  taking  people  over  the  bay.  They  went  back  and  forth  all  the 
night  preceding  the  day  of  the  duel.  Ira  Cole,  two  other  gentlemen,  and  myself 
started  from  the  San  Francisco  side  in  a  Whitehall  boat  at  one  o'clock  in  the 
morning  of  the  day  of  the  duel.  The  fog  on  the  bay  was  very  heavy,  and  after 
we  had  gone  some  distance  past  Goat  Island  the  tide  was  very  low.  and  we 
found  ourselves  on  the  mud  flats.  We  were  obliged  to  remain  there  nearly  an 
hour,  and  were  surrounded  by  a  great  many  boats  in  the  same  predicament. 
It  was  so  foggy  that  we  could  not  distinguish  the  forms  of  the  occupants  of 
the  other  boats,  but  we  recognized  our  friends  by  their  voices  as  they  saluted 
our  boat  with  "Brig  ahoy !"  and  "Ship  ahoy !"  and  the  firing  of  pistols.  A  shot 
fired  by  some  person  hit  one  of  the  sailors  in  our  boat  in  the  arm  and  disabled 
him.  Although  we  could  not  see  each  other,  all  sorts  of  bets  w-ere  made  on  the 
result  of  the  duel.  After  remaining  on  the  flats  for  an  hour,  we  drew  lots  in 
our  boat  to  see  who  should  undress  and  tow  the  boat  to  shore.  I  believe  Ira 
Cole  cheated  me,  because  they  all  laughed  at  me  when  I  pulled  the  short  straw 
by  the  light  of  a  cigar.  As  soon  as  it  was  decided  that  I  should  do  the  work, 
I  immediately  took  off,  my  clothes  and  stepped  into  the  cold  mud.  I  took  the 
direction,  as  I  thought,  toward  shore,  and  kept  hauling  until  the  break  of  day, 
when  I  felt  as  though  I  had  towed  the  boat  twenty  miles.  About  the  time  that 
day  dawned  I  reached  the  shore  and  found  that  I  had  towed  the  boat  one  mile 
south  in  a  zigzag  fashion  from  where  the  foot  of  Broadway  street  now  is.  After 
I  had  dug  a  hole  for  the  water  to  come  in,  with  the  oars  of  the  boat,  and  had 
taken  a  bath,  we  hauled  our  boat  on  shore.  We  then  went  over  the  fields  until 
we  sighted  two  pretty  large  crowds  of  people,  apparently  about  a  quarter  of  a 
mile  apart,  when  we  steered  our  course  in  that  direction  and  were  soon  amidst 
them.  One  crowd  were  the  friends  of  Broderick,  and  the  others  were  the  friends 
of  Judge  Smith,  who  was  on  the  ground,  accompanied  by  his  father,  Governor 
Smith.  The  duel  was  to  be  fought  with  navy  revolvers,  at  a  distance  of  ten 
paces,  the  signal  for  the  shooting  being,  "One,  two,  three,  fire."  At  the  word 
"fire"  the  parties  were  to  shoot,  and,  if  they  desired,  were  to  advance  toward 
each  other,  the  firing  to  continue  until  all  the  six  shots  had  been  used.  John 
A.  McGlynn  presented  me  with  a  navy  revolver  in  1850.  It  was  a  very  fine  one, 
and  while  I  was  shooting  with  it  at  a  target,  on  several  occasions,  the  exploded 
cap  caught  and  prevented  the  cylinder  from  revolving.  I  took  it  to  Brown  & 
Natchez's  gun-shop,  opposite  the  Plaza,  and  had  the  cylinder  filed  so  that  the 
cap  would  not  catch.  Vi.  Turner,  one  of  Broderick's  seconds,  borrowed  this 
pistol  from  me  on  the  day  before  the  duel,  for  Broderick's  use.     On  the  field, 


History  of  the  Bench  and  Bar  of  California.  233 

when  the  duellists  tossed  up  for  the  choice  of  pistols,  Judge  Smith's  second 
won  the  choice,  and  he  took  the  pistol  which  I  had  loaned  to  Vi.  Turner  for  Brod- 
erick.  Smith's  pistol  was  the  same  make,  but  had  not  been  filed  as  mine  had. 
Previous  to  the  placing  of  the  pistols  in  the  hands  of  the  principals,  Broderick 
pulled  out  his  heavy,  double-cased  gold  watch,  which  the  Howard  Engine  Com- 
pany in  New  York,  of  which  he  had  been  foreman,  had  presented  to  him  on 
his  departure  from  New  York  for  California.  He  handed  the  watch  to  Vi. 
Turner,  and  within  my  hearing  Turner  said,  "Put  your  watch  in  your  pocket; 
if  you  are  shot,  die  like  a  gentleman."  At  this  Broderick  smiled  and  replaced 
the  time-piece  in  his  pocket.  The  pistols  were  then  handed  to  Broderick  and 
Smith,  and  the  question  asked,  "Are  you  ready?"  On  both  answering  in  the 
affirmative,  the  word  "fire"  was  given,  and  they  both  commenced  firing.  I  could 
not  tell  which  of  them  fired  first.  After  the  first  shot  Broderick's  exploded  cap 
caught  in  the  cylinder  of  his.  pistol,  and  he  did  not  have  strength  enough  in  one 
hand  to  cock  it  in  the  usual  way.  He  then  grabbed  it  in  both  hands,  and,  put- 
ting the  pistol  between  his  knees,  proceeded  to  cock  it.  While  in  this  position, 
facing  his  opponent,  he  was  struck  by  a  bullet  from  Smith's  pistol.  The  ball 
hit  him  in  the  stomach  and  staggered  him,  and  his  hat  fell  to  the  ground.  Hav- 
ing succeeded  in  cocking  his  pistol,  he  returned  the  fire,  and  they  both  kept 
shooting  until  they  had  fired  their  six  shots.  The  seconds  then  rushed  up  to 
their  respective  principals,  and  Turner  unbuttoned  Broderick's  coat.  I  stood 
close  to  him,  and  on  examination  we  found  that  the  bullet  had  hit  the  center 
of  his  heavy-cased  watch,  and  that  fragments  of  the  bullet  went  through  both 
cases  and  cut  his  stomach.  Judge  Smith  was  not  hit  at  all.  After  a  few 
moments.  Turner  asked  Broderick  if  he  felt  able  to  renew  the  .duel.  His  reply 
was,  "Certainly,  I  am."  The  people  on  both  sides  were  ordered  back,  and  the 
seconds  of  both  parties  held  a  consultation  with  each  other,  and  afterwards  with 
their  principals.  At  the  consultation  of  the  seconds,  Mr.  Smith's  representative, 
on  behalf  of  Judge  Smith,  said  that  he  acknowledged  that  Broderick  was  an 
honorable  gentleman.  When  Broderick's  seconds  informed  him  of  this  fact, 
he  said,  "Well,  that  is  sufficient,"  whereupon  the  seconds  brought  their  prin- 
cipals half  way,  and  Broderick  and  Smith  shook  hands.  The  result  was  pleasing 
to  all  parties  concerned.  After  the  duel,  it  was  impossible  for  all  the  people 
to  get  back  to  San  Francisco  on  the  same  day,  and  many  walked  up  to  an  old 
house  known  as  the  Estudillo  Rancho,  a  private  mansion  occupied  by  Spanish 
people,  which  was  situated  where  Saa  Leandro  now  is.  There  they  obtained 
horses  and  rode  to  San  Francisco  by  way  of  San  Jose. 


The  Smiths  referred  to  in  this  account,  comprised  one  of  the  most  remark- 
able famihes  in  our  poHtical  history.  The  father,  after  a  brief  appearance 
at  the  early  California  bar,  returned  to  Virginia,  of  which  State  he  had  been 
Governor.  He  presided  at  the  first  Democratic  State  convention  of  Cali- 
fornia in  1850,  and  was  the  whitest-headed  man  in  that  body  of  pioneers. 
We  last  heard  of  him  in  1885,  when  he  was  ninety  years  old  and  in  robust 
health,  living  on  his  five-hundred-acre  farm  near  Warrenton.  The  other 
two  Smiths  referred  to  were  his  sons.  Austin,  more  properly  Austin  E.,  was 
United  States  Navy  agent  at  San  Francisco  under  President  P>uchanan.  He 
had  his  duels,  too,  and  was  killed  in  the  Confederate  Army.  The  Judge 
Smith  referred  to,  was  J.  Caleb  Smith,  Judge  of  the  Court  of  Sessions  of 
San  Francisco  in  the  early  fifties. 


234  History  of  the  Bench  and  Bar  of  California. 


THE  RUST-STIDGER  DUEL  IN   1833 

In  June,  1853,  Judge  Stidger  (editor  of  the  Marvsville,  Cal.,  Herald) 
and  Colonel  Rust  (editor  of  the  California  Express)  met  two  miles  south  of 
Yuba  City,  in  Sutter  county,  with  Mississippi  yagers,  at  sixty  paces,  and 
fired  twice  at  each  other  without  effect.  Some  few  years  ago,  an  eye-witness 
of  this  duel  prepared  a  very  elaborate  account  of  it  for  a  San  Francisco 
paper.  He  entitled  the  article  "A  Clash  Between  Northern  and  Southern 
Pluck.'  This  account  is  presented  here,  as  copied  in  Truman's  "Field  of 
Honor" : 

In  the  early  days  of  California  the  writer  resided  in  the  then  bustling  and 
since  beautiful  city  of  Marysville.  Of  course  he  witnessed  many  exciting  scenes. 
There  was  a  vast  mixture  of  the  tragic,  comic,  and  melodramatic,  which  could 
be  woven  by  a  masterhand  into  a  volume  of  absorbing  interest.  The  meeting 
for  mortal  combat  between  Judge  Stephen  J.  Field  and  Judge  W.  T.  Barbour, 
which,  with  the  farcical  incidents,  is  described  by  Judge  Field  in  his  valuable 
little  book  of  reminiscences:  the  latter  judge's  long  and  vexatious  controversy 
with  Judge  Turner ;  the  beating  of  Dr.  Winters  by  Plummer  Thurston  ;  the  at- 
tempt to  kill  Judge  O.  P.  Stidger  by  Plummer  Thurston,  just  named,  and  Judge 
Barbour — these  are  but  a  few  of  this  class  of  occurrences  which  agitated  Marys- 
ville from  1850  to  1855.  It  is  only  the  writer's  intention  now  to  narrate  the  cir- 
cumstances of  a  duel  between  Judge  Stidger  and  Colonel  Richard  Rust,  which 
took  place  in  June,  1853,  in  Sutter  county. 

Judge  Stidger  was  then  one  of  the  editors  of  the  Marysville  Herald,  a  Whig 
paper,  while  Colonel  Rust  edited  the  Deinocratic  organ  in  that  city,  the  Cali- 
fornia Express.  The  two  gentlemen  had  engaged  for  several  days  in  a  violent 
newspaper  war,  during  which  each  had  called  the  other  anything  but  tender 
names.  Judge  Stidger's  friends  claimed  that  he  was  victor  in  the  war  of 
words,  because  he  could  say  more  mean  things  of  his  adversary  in  a  minute 
than  the  latter  could  think  of  in  a  day.  The  judge  had  a  peculiar  way  of  driving 
the  steel  home  at  every  thrust,  and  his  antagonist  was  not  able  to  return  like  for 
like.  -The  consequence  was  that  the  judge  was  invited  to  transfer  the  quarrel 
to  a  field  of  different  kind,  that  it  might  be  settled  in  actual  physical  encounter 
by  the  arbitrament  of  the  bullet.  He  owned  his  printing  material,  but  was  in 
debt,  and  John  C.  Fall  was  his  endorser.  Fall  was  approached  and  asked  to 
•  withdraw  from  beneath  Stidger  his  sustaining  arms,  and  let  the  Herald  pass  into 
other  hands.  Fall  declined  to  do  this,  and  the  fight  went  on.  Finally,  Colonel 
Rust's  friends  prevailed  upon  him  to  send  the  Judge  a  challenge  to  repair  to 
the  bloody  and  historic  field  of  honor.  It  w-ill  not  be  doing  him  any  injustice, 
perhaps,  to  say  that  they  reasoned  in  this  way:  "Judge  Stidger  was  born  in 
Ohio,  and  was  raised  to  look  upon  duelling  as  a  crime.  He  won't  accept  a 
challenge,  and  if  he  does  not  he  will  be  disgraced  and  compelled  to  leave  the 
country." 

Tlie  challenge  was  sent,  the  bearers  being  Lee  Martin  and  Charles  S.  Fair- 
fax, both  now  deceased,  the  party  of  the  second  part  receiving  it  on  Friday,  at 
the  Herald  office.  It  was  promptly  accepted.  Judge  Stidger's  reply  being  de- 
livered by  Judge  Gordon  N.  Motl,  now  a  resident  of  San  Francisco.  Subse- 
quently Judge  T.  B.  Reardon,  (who  presided  at  the  second  trial  of  Mrs.  Fair, 
and  is  now  practicing  law  at  Oroville)  came  into  the  affair  as  a  friend  to 
the  challenged  party,  and  performed  an  important  part.  On  the  day  the  hostile 
missives  passed,  with  commendable  dispatch,  pistols  for  two  and  coffee  for  six 
were  provided.     Being  the  challenged  party,  Judge  Stidger  was,  under  the  code, 


History  of  the  Bench  and  Bar  of  California.  235 

entitled  to  dictate  the  kind  of  weapons  to  be  used,  and  the  distance.  He  was 
a  crack  shot  with  the  rifle.  He  chose  buckeye  rifles  with  set  triggers,  and  fixed 
the  distance  at  sixty  paces.  Judge  Mott  and  Colonel  Fairfax  sallied  forth  in 
search  of  the  needful  instruments  of  death.  They  could  not  find  any  "buck- 
eyes" in  the  city,  and  the  only  two  weapons  of  the  kind  to  be  had  were  Missis- 
sippi yagers.  These  would  suffice,  of  course,  if  they  were  of  equal  merit.  The 
opposing  seconds  took  them  out  and  "tried  them."  One  proved  to  be  more 
reliable  than  the  other.  Another  could  not  be  had.  What  was  to  be  done? 
The  seconds  determined  the  choice  by  lot,  and  Fairfax  won  the  best  gun  for 
his  principal.  Judge  Mott  felt  bad,  but  said  nothing.  It  was  agreed  that  the 
meeting  should  take  place  at  sunrise  on  Sunday  (it  was  then  late  on  Friday), 
at  any  place  in  Sutter  county  selected  by  the  seconds  over  five  hundred  yards 
from  the  Yuba  county  line.  On  Saturday  night  the  seconds  of  Colonel  Rust 
reported  that  he  was  seriously  ill,  and  asked  a  postponement  of  the  battle  for  one 
week,  which  was  granted.  It  was  believed  by  Judge  Stidger  and  his  friends  that 
this  was  a  ruse  to  get  time  to  enable  Colonel  Rust  to  practice  wtih  his  weapon. 
Be  that  as  it  was,  the  parties  met  one  week  from  the  time  first  appointed,  the  spot 
selected  being  a  pretty  grove  of  native  oaks,  about  two  miles  south  of  Yuba 
City,  near  the  public  road  between  that  "city"  and  the  celebrated  "Hook  Farm." 
then  occupied  by  General  Sutter. 

In  addition  to  their  seconds,  before  named.  Judge  Stidger  was  accompanied 
by  Dr.  McDaniel,  and  Colonel  Rust  by  his  brother,  Dr.  Rust,  as  surgeons.  The 
week's  postponement  had  had  the  effect  to  let  out  the  secret,  and  several  hundred 
citizens  of  Marysville  were  anxious  spectators  of  the  solemn  scene.  The  dis- 
tance being  paced  ofif,  the  choice  of  position  and  the  giving  of  the  word  were, 
by  chance,  won  by  the  seconds  of  Colonel  Rust.  It  then  looked  bad  for  Judge 
Stidger.  Judge  Mott  said  to  himself,  "My  man  is  going  to  get  killed ;  Rust 
has  the  best  gun  and  the  best  standpoint."  Such  was  the  fact,  enough  to  inspire 
foreboding  of  evil.  Rust  stood  within  the  shade  of  a  large  oak-tree,  his  back 
to  the  rising  sun,  which  shone  full  in  the  face  of  Stidger.  If  Colonel  Rust  had 
not  been  practicing  with  his  weapon  during  the  preceding  week,  he  was  3'et 
familiar  with  its  soecies,  while  Judge  Stidger  never  saw  a  Mississippi  yager 
until  he  was  handed  one  on  that  portentous  morning.  The  writer  recalls  the 
Judge's  remark  upon  taking  his  gun.  He  was  standing  at  the  spot  marked  out 
for  him,  his  base  of  operations ;  Dr.  McDaniel  was  about  twenty  feet  to  his  left, 
the  writer  being  near  the  doctor.  Judge  Stidger  examined  his  gun  carefully, 
and  said  to  McDaniel;  "Doc,  what  kind  of  a  gun  do  you  call  this?  I  never 
saw  one  like  it  before."  McDaniel  gave  the  weapon's  name.  "Well,"  continued 
the  Judge,  "the  bore  can  carry  a  half-pound  ball;  if  I  get  hit  there  won't  be  a 
grease-spot  left  of  me." 

Just  then  Judge  Mott  approached  and  told  his  principal  to  keep  cool.  The 
reply  was  :  "Oh,  I'm  as  cool  as  a  cucumber.  I  chose  buckeye  rifles,"  continued 
the  principal.  "I  never  saw  a  gun  like  this  before,  and  I  don't  know  how  to 
handle  it."  Judge  Mott  said  that  buckeyes  of  equal  calibre  could  not  be  found, 
and  that  he  had  done  the  best  possible,  and  he  explained  the  circumstances.  Im- 
mediately after  this  the  parties  were  instructed  how  to  hold  their  guns  until 
the  word  was  given,  how  it  would  be  given,  and  at  what  time  to  shoot,  thus : 
"Gentlemen,  are  you  ready?"  On  both  principals  responding  "Aye,"  or  "Yes." 
these  w»rds  would  follow:  "Fire!  One — two — three — stop!"  A  momentary 
pause  would  follow  each  word,  and  the  principals  were  to  fire  at  any  time  be- 
tween the  words  "Are,"  and  "stop."  Fairfax  gave  instructions,  after  which  the 
combatants  were  placed  in  position.  The  seconds  took  their  projicr  places, 
and  the  surgeons  were  within   conversational   distance. 

It  was  a  scene  that  left  an  indelible  impress  on  the  mind  of  the  beholder. 
Tlie  harmony  of  nature  and  the  antagonism  of  men  presented  a  striking  con- 
trast. The  eight  comprising  the  two  groups  were  fine  specimens  of  manly 
strength  and   symmetry  of   form.      Their  average   age   was  about  tkirty  years. 


236  History  of  the  Bench  and  Bar  of  California. 

The  Rust  party  were  all  Southern  men  ;  the  Stidger  party  comprised  two  South- 
erners— Reardon  and  McDaniel,  while  Judges  Stidger  and  Mott  were  from 
Ohio.  They  stood  beneath  the  tattered  banner  of  a  code  which  was  hoary 
with  age,  and  had  reached  the  last  decade  of  its  sway  in  American  States.  Cui 
bono  ?  Being  near  Judge  Stidger's  position  and  some  sixty  yards  from  Colonel 
Rust,  I  saw  more  of  the  former  and  necessarily  write  more  concerning  his  action. 
I  can  say  of  Colonel  Rust,  however,  that  his  bearing  was  brave  and  resolute. 
The  word  came,  "Gentlemen,  are  you  ready?"  Judge  Stidger  responded  in  a 
loud  tone,  "Aye."  Immediately  afterward  followed  (I  did  not  catch  Colonel 
Rust's  response)  "Fire  !  One — two — three — stop  !"  At  the  word  "two."  slang- 
bang  went  both  guns.  Stidger's  shot  passed  high  over  the  head  of  Rust ;  the 
latter's  lodged  in  Stidger's  coat-tail  pocket,  riddling  a  handkerchief.  (It  was 
a  happy  circumstance  that  the  handkerchief  caused  the  tail  of  the  coat  to  bulge 
out,  as  it  enabled  a  punster  to  exclaim  with  delight  that  the  pocket  was  "rifled.") 
"Are  your  hurt?"  inquired  Dr.  McDaniel,  approaching  his  principal,  desiring 
to  know  if  his  services  were  needed.  "Hurt?  no,"  was  the  answer.  "Examine 
your  pockets,"  said  the  Doctor.  The  Judge  did  so,  and  remarked,  "That  was 
a  pretty  clever  shot."  "Yes,"  replied  the  Doctor,  "and  now  there  must  be  no 
more  foolishness.  You  must  kill  him.  or  he  will  kill  you."  To  this  the  Judge 
answered,  "I  do  not  want  to  kill  him.  I  don't  want  his  blood  on  my  hands.  He 
has  a  family  to  maintain,  and  I  don't  want  to  rob  them  of  their  support."  "That 
may  be  all  very  fine  in  theory,"  said  the  Doctor,  "but  the  fact  is  before  you  that 
he  is  trying  to  kill  you.  and  to  prevent  it,  you  must  kill  him.  You  can  do  it,  if 
you  will." 

Judges  Mott  and  Reardon  now  came  up,  and  said  that  Rust  demanded 
another  shot.  "Very  well,  I  am  willing,"  said  Judge  Stidger.  The  latter  was 
then  told  by  Judge  Reardon  that  he  (Reardon)  would  leave  the  field  unless  he 
(.Stidger)  promised  to  shoot  at  Rust.  The  Judge  promised.  Judge  Mott  then 
informed  him  that  his  position  at  the  first  fire  was  awkward,  and  he  must  stand 
erect;  that  if  he  continued  to  present  so  many  angles  to  the  enemy  he  was  liable 
to  get  hurt.  This  admonition  had  good  and  immediate  effect.  Stidger  there- 
after stood  straight  as  an  arrow,  and  at  the  same  time  bore  himself  with  perfect 
ease.  The  seconds  having  retired  to  load  the  guns  for  the  second  fire.  Judge 
Stidger  said  to  Dr.  McDaniel,  "I  promi-sed  to  shoot  at  Colonel  Rust,  but  I  did 
not  promise  to  kill  him,  and  I  won't."  Tlie  Doctor  said,  "You  must  kill  him, 
or  he  will  kill  you.  Your  gun  carries  up.  Shoot  for  his  legs,  and  you  will  hit 
him  in  the  body.  The  gun  is  good  for  three  hundred  yards,  but  at  short  range 
it  carries  up."  Finally  Judge  Stidger  said,  "Well,  Doc,  I'll  wing  him.  I  will 
shoot  for  his  arm.  I'll  cripple  him,  and  then  he  can't  shoot  again."  "Yes," 
answered  the  Doctor,  "that  would  do  if  you  had  a  guaranty  of  your  own  life. 
Supposing,  while  you  are  shooting  for  his  arm.  his  ball  should  hit  you  in  a  vital 
place,  what  then  ?"  "Oh,"  said  the  Judge,  "if  he  should  kill  me,  that  would 
be  the  end  of  it." 

The  Judge  was  now  handed  his  gun  and  placed  in  position  for  the  second 
fire,  with  directions,  to  "keep  cool  and  shoot  him."  The  word  was  given.  As 
before,  both  guns  went  off  simultaneously.  My  eyes  were  intently  directed  to 
Judge  Stidger,  for  I  expected  to  see  him  fall.  After  the  word  "stop !"  he  held 
his  gun  to  his  shoulder,  and  earnestly  eyed  his  adversary  as  though  about  to 
shoot.  This  action  was  so  interpreted  by  Colonel  Rust's  seconds,  who  called 
out,  "Stop !  stop !"  The  fact  was  that,  owing  to  both  guns  being  fired  at  the 
same  instant,  the  seconds  of  Rust  did  not  know  if  Stidger  had  fired  or  not. 
On  hearing  the  words  "stop!  stop!"  Stidger  threw  his  gun  upon  the  ground 
and  said,  "Doc,  this  gun  ain't  worth  a  damn.  I  don't  believe  a  man  could  hit 
a  barn  door  with  it  at  a  distance  of  six  feet.  I  had  a  splendid  shot  at  his  arm, 
and  I  got  a  pretty  good  sight  along  the  barrel.  If  the  gun  had  been  worth  a 
damn  I  would  have  struck  his  elbow."     The  Doctor  asked,  "Why  didn't  you  shoot 


History  of  the  Bench  and  Bar  of  California.  237 

at  his  body?  I  told  you  the  gun  carried  up."  "If  I  had  done  that,"  said  the 
Judge,  "I  would  have  killed  him,  and  I  didn't  want  to  do  that."  "Well,"  said 
the  Doctor,  "if  he  demands  another  shot  what  will  you  do?"  "I  will  kill  him," 
was  the  answer;  "I  have  now  given  him  two  fair  shots  at  me.  I  could  have  killed 
him  if  I  had  desired  to  do  so.  I  spared  his  life  because  of  his  family,  and 
because  I  did  not  want  his  blood  on  my  hands.  Now,  if  he  isn't  satisfied,  I'll 
kill  him.  I  don't  want  to  do  it,  but  if  I  must  shoot  again  I  will  end  it."  To 
this  the  Doctor  replied,  "Now,  you  are  talking  right."  The  seconds  again  came 
up  and  reported  that  Colonel  Rust  demanded  another  shot,  and  wanted  the 
distance  reduced  before  the  next  fire.  Judge  Stidger  replied  that  his  gun  was 
no  account  at  sixty  paces ;  he  thought  if  the  distance  was  doubled  he  would 
fire  better.  "Gentlemen,"  said  he  to  his  seconds,  "I  am  in  your  hands.  What- 
ever you  say  I  must  do,  I  will  do.  I  only  ask  you  to  protect  my  honor."  Judge 
Reardon  replied,  "That  we  will  do."  Judges  Mott  and  Reardon  then  took  the 
gun  and  left,  and  met  the  opposing  seconds  on  neutral  ground.  The  four  men, 
after  the  guns  were  again  loaded,  appeared  to  be  in  earnest  consultation.  Tlie 
while  the  J^idge  was  pacing  back  and  forth,  talking  with  his  physician.  The 
Judge  had  got  warmed  up,  and  was  chafing.  McDaniel  advised  him  to  keep 
cool.  "Oh,  don't  you  fear,  Doc,"  said  the  Judge,  "I  will  be  cool  enough  to  kill 
that  fellow,  if  he  forces  me  to  do  it."  Several  minutes  passed — seeming  to  the 
writer  "a  vast  half  hour" — when  one  of  the  seconds  fired  off  a  gun,  which 
was  a  signal  that  some  arrangement  had  been  made  putting  an  end  to  the  affair. 
Judge  Stidger's  seconds  coming  back  and  verifying  the  "report"  of  the  gun, 
he  asked,  "How?  On  what  terms?"  Judge  Reardon  answered,  "Honorably 
to  you.  I  drew  up  the  stipulations,  and  saw  to  it  that  you  are  not  compro- 
mised. The  terms  are  honorable  to  both  parties,  and  I  am  to  hold  the  docu- 
ments."    All  parties  then  left  the  field  for  the  city. 

Some  time  after  the  duel  it  was  stated  that  Judge  Stidger's  second  shot 
cut  Colonel  Rust's  hair  just  above  his  ear,  and  that  this  it  was  that  caused  the 
Colonel's  seconds  to  make  peace.  Whether  true  or  not,  the  writer  could  not 
learn  to  his  satisfaction.  He  has  often  talked  with  Colonel  Fairfax  about  this 
duel.  He  (Fairfax)  stated  that  he  had  witnessed  many  meetings  of  the  kind 
in  the  South,  where  he  was  born  and  reared,  but  had  never  seen  two  men 
stand  up  more  manfully  to  their  work  than  those  engaged  in  this  affair.  He 
spoke  in  glowing  terms  of  Judge  Stidger  on  that  occasion,  for,  he  said,  he 
expected  to  see  him  wilt,  being  a  Northern  man,  unacquainted  with  the  code 
duello.  "People  needn't  tell  me,"  he  said,  "that  men  born  in  the  North  are 
cowards.  I  know  better.  It  won't  do  to  fool  with  such  men.  They  have  pluck 
and  will  die  game." 


ROBERT  TEVIS  AND  CHARLES  E.   LIPPINCOTT  AND 
THEIR  DUEL  IN   1855 

We  give  Calvin  B.  McDonakl's  accotint  of  this  fatal  meeting,  a.s  published 
by  the  Sacramento  Record-Union  in  ICS79.  J t  is  as  vivid  a  picture  as  he  ever 
drew.  Calvin  B.  McDonald  was  assistant  editor  of  the  Evoiing  Journal 
in  1 860-6 r  ;  later  editor  of  1).  ().  McCarthy's  American  I'lui^,  [865-66.  He 
was  sometimes  called  "The  Triple  Thunderer."  We  were  city  editor  of  the 
B.raniiner  when  Dickens  died,  and  the  editor-in-chief,  B.  F.  Washington,  con- 
sented to  the  employment  of  McDonald  specially  to  write  an  editorial  on 
Dickens.      This  was  in   1870.      Not  long  afterwards,  the  two  editors  became 


238  History  of  the  Bench  and  Bar  of  California. 

personal  enemies  and  waged  war  npon  each  otlier  in  their  editorial  column 
Both  ha\e  been  dead  for  many  years. 

In  1855  there  came  to  this  State  a  female  temperance-lecturer.  Miss  Sarah 
Pellet,  a  friend  of  Lucy  Stone  Blackwell,  Antoinette  Brown  and  that  confedera- 
tion of  lady  reformers.  She  was  young,  intelligent,  good-looking,  and  pure,  and 
will  be  kindly  remembered  by  many  who  shall  read  this  sketch.  The  writer  of 
this  was  then  conducting  the  Sierra  Citizen  at  Downieville.  and  Miss  Pellet 
having  been  scurrilously  referred  to  by  certain  other  papers,  she  there  found 
defenders,  came  to  Downieville,  and  we  became  fast  friends.  Through  her 
exertions  a  large  and  flourishing  division  of  the  Sons  of  Temperance  was  there 
established,  and  all  the  respectable  young  men  temporarily  stopped  drinking 
and  became  enthusiastic  advocates  of  total  abstinence.  A  temperance  Fourth-of 
July  celebration  was  projected,  and  we  nominated  our  friend,  Miss  Pellet,  to 
make  the  oration,  and  notwithstanding  a  strong  prejudice  against  women  orators, 
succeeded  in  procuring  her  the  coveted  invitation.  A  short  time  before  that, 
Mr.  Robert  Tevis.  a  promising  young  lawyer,  and  a  brother  of  Lloyd  Tevis,  of 
San  Francisco,  who  had  come  there  to  run  for  Congress,  joined  the  Temperance 
Division,  and  was  anxious  to  make  the  speech  in  order  to  present  himself  favor- 
ably to  the  public.  He  was  hard  to  be  put  off,  and  was  never  reconciled  to  the 
disappointment ;  though,  to  pacify  his  opposition  to  the  lady  speaker,  he  was 
appointed  to  read  the  Declaration  of  Independence,  with  the  privilege  of  making 
some  remarks  on  the  illustrious  document.  The  glorious  Fourth  shone  brightly 
on  two  or  three  thousand  people.  The  celebration  began  with  a  salvo  of  all  the 
anvils  in  town  ;  the  primitive  band  blew  the  blast  of  Freedom  through  patriotic 
brass,  and  Mr.  Tevis.  having  read,  began  to  comment  on  the  Declaration  in  a 
long  speech,  greatly  to  the  displeasure  of  the  gallant  sons.  In  order  to  termi- 
nate his  misappropriate  oration,  the  anvils  were  set  to  firing  with  such  a  thunder- 
ing and  consecutive  noise  that  nothing  else  could  be  heard,  and  Mr.  Tevis,  being 
very  angry,  gave  way  for  the  orator  and  sat  down.  The  event  made  a  great  deal 
of  talk,  and  brought  the  ambitious  young  man  into  very  unpleasant  notoriety 
instead  of  fame.  The  Democratic  party  had  procured  the  use  of  two  columns 
of  the  local  paper,  and  had  appointed  as  editor  the  Hon.  Charles  E.  Lippincott, 
State  Senator  from  Yuba  county.  Lippincott  had  a  keen  appreciation  of  the 
ludicrous,  and  as  Tevis  was  a  Know-Nothing.  he  took  occasion  to  roast  the 
unfortunate  young  man  in  the  Democratic  corner  of  the  paper,  and  it  created  a 
great  deal  of  fun  in  the  town.  The  next  day  Mr.  Tevis  came  to  me — I  had  no 
jurisdiction  in  the  Democratic  side  of  the  paper — and  demanded  the  publication 
of  a  card  which  pronounced  the  author  of  Lippincott's  article  "a  liar  and  a 
slanderer."  He  was  white  with  rage,  and  trembling,  and  would  not  be  reasoned 
with.  Knowing  the  nature  of  his  antagonist  and  his  deadly  skill  with  arms,  I 
tried  to  dissuade  Tevis  from  the  rash  and  dangerous  publication,  and  dwelt 
on  the  inevitable  consequence.  But  he  would  hear  nothing;  he  wanted  to  fight, 
he  said,  and  would  fight,  in  the  street  or  otherwise ;  and  if  the  card  was  not 
published  he  would  consider  it  an  act  of  hostility  to  himself;  and  so  the  uncon- 
scious type  gave  out  the  fatal  impress,  and  a  challenge  from  Lippincott  followed 
promptly,  and  was  as  promptly  accepted.  Tlie  difficulty  took  a  political  shape — 
Democrats  and  Know  Nothings — though  some  leading  Democrats  did  their  best 
to  prevent  the  meeting.  Both  belligerents  belonged  to  the  order  of  Odd  Fellows, 
but  as  neither  was  a  member  of  the  local  lodge,  no  direct  authority  could  be 
imposed,  though  the  good  brethren  kept  in  session  all  night  devising  means  to 
prevent  the  encounter.  Several  times  the  difficulty  was  supposed  to  be  settled, 
but  as  often  it  would  be  renewed  by  certain  chivalric  vagabonds,  who  seemed 
eager  to  see  bloodshed  when  not  flowing  from  their  own  veins.  Morning  came; 
the  forenoon  passed.  TTie  peace-makers  having  been  so  often  baffled,  gave  up 
their  humane   exertions,   and   it   was  understood   that   the  fight   would   come  off" 


History  of  the  Bench  and  Bar  of  California.  239 

that  afternoon.     In  the  meantime   the  principals  and   their   friends   had  gone  to 
the  wood,  the  public  not  knowing  when  or  where,  and  the  sheriff  was  in  pur- 
suit.    The  duelling  ground  had  been   selected   some   six  miles  from  town,  on  a 
flat  near  the  top  of  the  lofty  hills  of  Sierra  county,   where  never  a  bird   sings 
and  where  the  somber  fir  trees  spread  their  eternal  pall ;  but  when  nearly  ready 
for  their   sanguinary  proceedings  the   sheriff  and  his  posse  were  descried  on   a 
distant   eminence,   and   the   duelling  party   moved   into   an   adjacent   county,   be- 
yond the  jurisdiction  of  the  pursuers.     There  another  arena  was  prepared,  and 
the  great  act  of  the  tragedy  was  ready  to  come  on.     In  the  meanwhile  the  prin- 
cipals had  been  away  with  their  seconds  in  opposite  directions,  practicing  with 
double-barreled    shotguns,    loaded    with   ball,   at    forty   yards — the   weapons   and 
distance  agreed  on — and  I  was  afterward  told  that  each  had  broken  a  bottle  at 
the  word.     Lippincott  was  a  low,  heavy-set  man  with  light  hair,  piercing  black 
eyes,  deliberate  and  resolute  in  his  speech,  and  with  that  peculiar  physical  struc- 
ture indicating  steadiness  and  self-possession.     He  was  the  son  of  a  clergyman 
in   Illinois,   and   was  exemplary   in   his   habits,   except  the   ordinary   drinking  of 
that  time ;  was  highly  cultivated  in  mind,  and  was  an  exceedingly  good  humorous 
and  sentimental  writer.     He  declared  he  did  not  wish  to  kill  his  adversary,  to 
whom  he  had  never  spoken  in  person  ;  did  not  want  to  fight  if  it  could  be  avoided, 
but  the  nature  of  the  public  insult  and  the  customs  of  the  time  compelled  him 
to  send  the  challenge.     During  a  previous  winter  he  had  been  engaged  in  hunting 
deer  and  bear,  and  was  known  to  be  a  remarkably  good  woodsman.     In  making 
his  choice  of  weapons,  Tevis  unknowingly  selected  those  with  which  his  adver- 
sary  was   most   familiar,    double-barreled   shotguns,   carrying   ounce   balls.      Mr. 
Tevis   was   a   tall,   spare   man,   of   a   highly   nervous   and   excitable   temperament. 
He   came   from   Kentucky,  and  possessed   the   ideas  of   chivalry  and  honor  pre- 
vailing at   the    South,   and   was   an   excellent   sporting   marksman,   but   too   little 
skilled  in  woodcraft  to  know  that  in  shooting  down  hill  one  should  aim  low, 
.else  he  will  overreach  the  mark.     He  was  possessed  of  good  natural  abilities, 
but  was  somewhat  eccentric  in  manner,  and  did  not  possess  the  element  of  popu- 
larity.    In  walking  out  with  him  on  the  evening  before  the  meeting  I  observed 
his  manner  was  abstracted  and  his  speech  confused  and  faltering  as  he  talked 
of  his  solemn  situation,  but  his  courage  and  resolution   were  unwavering,  and 
he.  seemed  absolutely  athirst  to  spill  the  blood  of  the  one  who  had  made  him  the 
object  of  mortifying  ridicule.     This  was  our  last  interview  and  his  last  night 
upon  earth;  and  the  pale,  ghost-like  face,  as  it  then  appeared   in   the  twilight 
when  he  walked  under  the  frowning  hills  and  beside  the  resounding  river,  hangs 
in  my  memory  to  this  day.     I  had  seen  the  bounding  deer   sink  down  before 
the  aim  of  his  iron-nerved  antagonist,  and  felt  then  that  he  was  a  doomed  man 
walking  the  lonely  outskirts  of  the  world.     The  combatants  took  their  places, 
forty  yards  apart;  the  ground  was  a  little  sloping,  and  the  highest  situation  fell 
to  the  lot  of  Tevis.     The  sun  was  going  down  upon  the  peace  and  happiness  of 
two  families  far  away,  and  upon  a  brilliant  young  man's  ambition  and  life.     As 
his  second  walked  away  he  turned  toward  Tevis  and  laid  his  finger  on  his  own 
breast,  as  an  indication  where  to  aim,  and  Lippincott  observed  the  gesture  and 
fixed  his  eyes  on  the  same  place.     Tlie  word  was  given  ;  both  guns  cracked  at 
the  same  instant.     Tevis  sank  down,  shot  directly  through  the  heart,  and  a  lock 
of  hair   fell    from  near   Lippincott's   ear.     The    fallen    man    had   not   made    the 
necessary  allowance  for  descending  ground,  and  his  murderous  lead  had  passed 
directly  over  his  adversary's  left  shoulder,  grazing  his   face.     His  wound  was 
frightful,  as  though  it  had  been  bored  through  with  an  auger,  and  the  ground 
was  horrible  with  its  sanguine  libation.     The  survivor  and  his  friends  took  their 
departure,  and  the  dead  man  was  temporarily  buried  in  that  lonely  place,  which 
in  the  gathering  twilight  seemed  like  the  chosen  abode  of  the  genius  of  solitude. 
On  the  following  day  the  body  was  taken  up,  properly  enclosed,  packed  on  a 
mule  to  Downieville,  and   interred  in  the  bleak  hillside  cemetery.     The   funeral 
was  very  large,  and  demonstrative,  and  seemed  to  be  a  death-rite  performed  by 


240  History  of  the  Bench  and  Bar  of  California. 

the  Know  Nothing  party;  and  although  the  duel  had  been  fair  enough,  accord- 
ing to  the  murderous  code,  the  better  class  of  citizens  regarded  Tevis  as  the 
victim  of  that  fell  and  devilish  spirit  which  has  stained  the  history  of  our  State 
with  human  blood.  Lippincott  fled  to  Nevada ;  and  when  he  afterward  returned 
to  Downieville,  he  felt  himself  like  another  Ishmael.  Old  friends  extended  their 
hands  reluctantly,  and  then  the  man  of  sensibility  felt  that  he  was  overshadowed 
by  that  voiceless,  noiseless,  horrible  thing  which  made  a  coward  of  Macbeth. 
Miss  Pellet,  regarding  herself  as  the  innocent  cause  of  the  duel,  stood  courage- 
ously b)'  her  friend,  visited  him  in  his  exile,  exerted  all  her  personal  influence 
to  reconcile  public  opinion  to  the  survivor,  and  behaved  altogether  like  a  brave, 
true-hearted  woman,  as  she  was  and  still  is,  in  her  fancied  mission  of  reform. 
After  completing  his  term  in  the  State  Senate,  Mr.  Lippincott  returned  to  his 
home  in  Illinois,  to  find  his  reverend  father  dying.  I  heard  that  his  son's  con- 
nection with  the  fatal  duel  broke  the  good  man's  heart,  and  he  died.  At  the 
outbreak  of  the  war,  Lippincott  joined  the  Union  armies,  distinguished  himself 
in  battle  by  his  reckless  daring,  and  became  a  Brigadier-General.  He  was 
afterward  the  Republican  State  auditor  of  Illinois.  If  this  brief  sketch  should 
come  to  the  attention  of  his  personal  or  political  friends,  let  them  know  that  his 
career  in  California  was  distinguished  and  honorable;  that  he  was  respected 
and  beloved  by  his  acquaintances,  and  that  his  unhappy  entanglement  in  the  duel 
resulted  from  his  position  and  the  prevailing  spirit  of  border  life.  At  that  time 
a  politician  who  would  have  suffered  himself  to  be  published  a  liar  and  a  slan- 
derer, without  prompt  resentment,  would  have  been  considered  as  disgraced  by 
most  of  his  fellow-citizens.  Mr.  Lippincott  was  an  intimate  friend  and  strong 
supporter  of  the  late  Senator  Broderick,  and  was  by  him  regarded  as  hie  ablest 
advocate  and  partisan.  Miss  Pellet  went  to  Oregon,  and  there,  while  a  gallant 
settler  went  to  pilot  and  protect  her  through  the  wilderness,  the  savages  came 
upon  and  murdered  his  family  and  burnt  his  house.  So  did  disaster  seem  to 
follow  the  poor  girl.  Afterward  she  returned  across  the  plains  to  the  East,  and  ' 
I  have  lately  heard  of  her  at  a  woman  suffrage  convention  in  Syracuse.  Her 
temperance  division  at  Downieville  has  melted  away ;  some  of  her  cold-water 
converts  are  dead ;  others  have  been  separated  from  their  families  by  the  foul 
fiend  whom  she  almost  drove  from  the  place,  and  one  remains  to  be  the  brief 
historian  of  her  memorable  and  melancholy  campaign.  And  so  swiftly  turns 
the   whirligig  of  time. 


GEO.  PEN.  JOHNSTON  AND  WILLIAM  I.  FERGUSON  AND 
THE  FATAL  DUEL  OF   J858 

Geo.  Pen.  Johnston  of  San  Francisco,  and  William  I.  Ferguson  of  Sac- 
ramento, were  true  politicians — we  might  almost  say,  born  politicians.  They 
were  most  at  home  in  political  Ixidies,  and.  even  before  they  reached  man's 
estate,  found  their  best  stimulus  in  party  strife.  They  thus  represented  a 
great  class.  To  quote  Wendell  Phillips,  if  you  had  put  them,  when  babies 
in  their  cradles,  in  the  same  room,  one  of  them  would  have  immediately 
said,  "Mr.  Speaker!"  and  the  other  would  have  called  him  to  order. 

The  account  which  follows,  of  the  fatal  meeting  between  these  men  on 
Angel  Island  in  San  Francisco  bay,  August  21,  1858 — appeared  in  the  San 
Francisco  Call,  when  the  death  of  Mr.  Johnston  occurred,  in  1884.  It  tells 
something  of  the  men  as  wel)  as  of  their  dispute,  and  we  will  tell  more 
of  them  later  on. 


History  of  the  Bench  and  Bar  of  California.  2  4 

George  Pendleton  Johnson  was  born  in  Kentucky  and  reared  amono-  a 
people  whose  traditions  and  sentiments  not  only  accepted  the  duello,  but  exalted 
it  as  the  tribunal  of  honor;  and,  while  he  would  probably  always  have  justified 
to  his  fellowmen  the  slaying  of  anyone  under  its  rules,  his  humane,  generous  heart 
could  never  let  him  rest  in  entire  peace  with  himself,  under  the  knowledge 
that  a  human  being  had  died  through  act  of  his.  All  his  surroundings,  as  well 
as  his  antecedents,  led  him  to  the  duel.  He  was  not  only  born  and  reared  in 
a  state  where  "the  code"  was  maintained  and  justified,  but  he  emigrated  to  one 
where  it  was  even  more  resorted  to  for  the  settlement  of  differences.  The  duello 
was  never  more  popular  anywhere,  probably  in  the  decade  from  1840  to  1850, 
than  in  California.  So  many  men  had  fallen  or  been  injured,  that  about  1856 
the  practice  of  duelling  fell  into  disfavor  and  disuse.  The  Johnston-Ferguson 
affair  gave  it  a  new  impetus,  which  culminated  in  the  killing  in  1859  of  David 
C.  Broderick  by  David  S.  Terry,  who  resigned  the  Chief-Justiceship  of  the  State 
Supreme  Court  to  engage  in  this  famous  duel.  The  parties  to  the  first  of  these 
two  affairs  were  both  prominent  men,  and  the  part  each  had  taken  in  the 
exciting  political  events  of  the  three  preceding  years  had  made  them  wide- 
known.  Johnston  had  been  a  member  of  the  assembly,  where  he  had  taken  a 
prominent  part,  among  other  things,  in  introducing  and  pushing  to  passage  an 
anti-duelling  act,  to  give  force  and  effect  to  the  constitutional  provision  on  that 
subject.  He  was  an  ardent  supporter  of  Dr.  Gwin  for  the  United  States 
senatorship,  and  opposed  to  the  pretensions  of  Broderick,  engaging  in  that  con- 
test with  all  his  ardor  and  oratorical  ability,  which  was  considerable.  In 
addition,  he  had  rendered  his  decision  as  United  States  court  commissioner 
in  the  celebrated  case  of  the  negro  Archie,  which  created  much  feeling  for 
its  bearing  on  the  question  of  slavery — the  more  by  reason  of  its  being  a  ruling 
by  a  Southern  man  in  favor  of  the  negro  under  one  application  of  the  fugitive- 
slave  law  ;  and  finally  he  was  clerk  of  the  United  States  Circuit  Court  in  San 
Francisco.  Ferguson  was  a  remarkable  man,  then  in  the  prime  of  life  and  the 
full  flush  of  his  splendid  talents.  The  son  of  a  carpenter,  born  in  Pennsylvania, 
he  removed  to  Springfield,  Illinois,  where  he  studied  law  under  Colonel  E.  D. 
Baker,  and  rose  to  a  level  at  the  bar  with  such  associates  as  Abraham  Lincoln, 
David  S.  Logan,  Baker,  and  others  of  that  calibre;  thence  removing  to  Texas, 
and  finall}'  to  Sacramento,  in  this  State,  where  he  took  and  maintained  his 
position  among  the  brightest  men  at  the  bar,  excelling  especially  in  the  depart- 
ment of  criminal  law.  Possessed  of  great  ambition,  a  brilliant  genius,  one  of 
the  most  eloquent  and  fascinating  orators  California  has  ever  held  in  citizen- 
ship, he  entered  politics,  and  soon  became  one  of  the  most  conspicuous  char- 
acters in  public  life  here.  Elected  to  the  State  senate  on  the  Know-Nothing 
ticket,  he  was  in  a  sense  a  candidate  for  the  United  States  senate  in  the  ex- 
citing session  of  1855-6,  but  finally  supported  General  Henry  S.  Foote.  father  of 
our  present  railroad  commissioner,  upon  the  general's  receiving  the  caucus 
nomination  of  the  party.  When  the  defection  of  Wilson  Flint,  one  of  the 
hold-over  senators  from  San  Francisco,  who  disregarded  his  parly  obligations 
and  refused  to  vote  for  General  Foote,  prevented  the  latter's  election  and 
enabled  Broderick  to  carry  off  at  the  next  session  the  prize  for  which  he 
struggled  so  long,  only  to  find  it  a  disappointing  bauble,  Ferguson  distinguished 
himself  by  the  force  of  the  withering  invective  with  which  he  denounced  the 
"recreant."  Then  Ferguson  became  more  prominent  by  renouncing  the  Know- 
Nothing  party,  his  constituents  demanding  his  resignation.  He  resigned,  and 
made  a  successful  canvass  for  re-election.  Ferguson  had  one  unfortunate  frailty 
to  which  genius  is  often  linked.  Like  many  brilliant  men  of  that,  as  of  all 
other  times,  he  was  addicted  to  strong  drink.  In  his  convivial  hours — or  days — 
he  was  hilarious  to  a  point  quite  inconsistent  with  the  dignity  of  the  senatorial 
character,  even  drunken  senatorial  dignity,  as  understood  here  a  quarter  of  a 
century  ago,  and  some  of  his   roystering  performances  had  gained   for  him   the 


242  History  of  the  Bench  and  Bar  of  California. 

nickname  of  "Yip-see-Doodle."  During  the  senatorial  contest  above  men- 
tioned General  Foote  was  thrown  into  such  a  transport  of  rage  by  a  taunting 
mention  of  "Yip-see-Doodle,"  on  the  part  of  Colonel  A.  J.  Butler,  that  he 
seized  his  tormentor,  a  man  twice  as  large  as  he,  by  the  collar,  in  a  ludicrous 
effort  to  shake  him.  One  evening  about  the  middle  of  August,  1858,  Johnston 
and  Ferguson  met  in  the  old  Bank  Exchange  saloon  on  Montgomery  street.  A 
joke  by  Ferguson,  in  which  the  names  of  ladies,  friends  of  Johnston,  were 
ludicrously  introduced,  was  resented  by  the  latter.  High  words  ensued  and 
weapons  were  drawn.  Friends  present  interfered  and  they  were  parted.  John- 
ston, who  believed  himself  insulted,  sent  his  friend,  W.  B.  Dameron,  to  Ferguson 
the  next  day  to  demand  an  apology  or  satisfaction  in  the  regular  way  of  the 
duello.  Ferguson  refused  the  apology,  was  challenged,  and  accepted.  It  was 
first  arranged  that  they  should  meet  near  Sausalito,  but  this  was  modified,  and 
at  five  o'clock  on  Saturday  afternoon,  August  21,  they  stood  facing  each  other 
in  hostile  attitude  in  a  secluded  glen  on  the  east  side  of  Angel  Island,  near 
where  the  quarry  now-  is.  Every  traveller  on  the  ferry  between  this  city  and 
San  Quentin  Point  has  seen  the  spot.  Washington  and  Dameron  were  the 
seconds  of  Johnston  ;  Eugene  L.  Sullivan  and  J.  M.  Estill,  of  Ferguson.  Drs. 
Hitchcock,  Angel  and  White  were  in  professional  attendance,  and  besides 
there  were  quite  a  number  of  spectators.  The  principals  stood  ten  paces  apart, 
resolutely  awaiting  the  word,  which  was  in  the  usual  form:  "Are  you  ready? 
Fire !  One — two — three,  stop  !"  After  the  interrogatory,  both  men  answered 
firmly  and  exchanged  shots  at  the  word.  Neither  was  harmed,  and  by  mutual 
consent  the  distance  was  lessened.  Again  they  fired  without  injury  to  either. 
The  distance  was  again  shortened,  and  a  third  time  they  fired  inefifectually. 
At  the  beginning  it  was  agreed  that  this  should  be  the  limit  of  the  encounter, 
but  Johnston  insisted  on  an  apology  or  a  continuation  of  the  fight.  Ferguson 
was  firm  in  refusing  any  sort  of  apology,  and  again  the  men  faced  each  other, 
this  time  but  twenty  feet  apart.  The  word  was  given  ;  they  fired  simultaneously. 
Johnston's  wrist  was  grazed,  and  Ferguson  sank  into  the  arms  of  his  seconds, 
his  right  thigh  shattered  by  the  bullet  of  his  adversary.  Equal  to  Curran  in  pure 
wit  and  humor  was  Ferguson.  The  combatants  had  exchanged  two  shots,  and 
Ferguson  had  fired  his  third,  when,  looking  right  into  the  jaws  of  death,  he 
exclaimed,  laughingly,  to  his  second,  "I'm  a  gone  community."  Mercutio  was 
not  gamer. 

While  Ferguson  was  lying  on  the  ground,  undergoing  surgical  examination, 
Johnston  expressed  a  wish  to  give  him  his  hand  before  quitting  the  ground. 
Ferguson  faintly  replied  that  he  was  in  the  hands  of  his  seconds.  Upon  their 
assenting,  Johnston  advanced  and,  gra.sping  the  hand  of  his  prostrate  opponent, 
said,  warmly,  "Uncle  Ferg.,  I'm  sorry  for  you."  "That's  all  right,"  whispered 
Ferguson ;  whereupon  Johnston  remarked,  "That's  enough  said  between  gen- 
tlemen," and  left  the  ground  with  his  friends.  Ferguson  was  removed  to  the 
city,  where  he  was  attended  by  half  a  dozen  or  more  of  the  best  surgeons 
here,  including  Drs.  Sawyer,  Grey,  Coit,  Angel,  and  Bowie.  They  advised  him 
from  the  first  that  his  wound  was  a  serious  one;  that  with  prompt  ampu- 
tation of  the  limb  there  were  fair  chances  of  his  recovery,  but  without  it  a  very 
slim  chance.  He  replied  that  he  would  not  part  with  his  leg  for  the  whole  of 
California,  and  that  he  would  take  the  solitary  slim  chance  they  intimated.  He 
sank  slowly ;  the  wound  began  to  mortify ;  and  when,  finally,  on  September 
14th,  the  amputation  of  the  leg  was  attempted,  he  died  under  the  operation. 
His  death  created  a  profound  feeling  on  this  coast,  for  he  was  recognized  as  a 
man  of  remarkable  talents  and  promise.  The  body  was  taken  to  Sacramento 
for  burial.  A  large  delegation  of  prominent  people  from  that  city  met  it  at 
Benicia  and  conducted  it  to  the  capital.  It  was  laid  in  state  in  the  senate 
chamber,  where,  carrying  out  the  dying  request  of  his  unfortunate  young  friend 
and  pupil.  Colonel  E.  D.  Baker  pronounced,  in  the  presence  of  a  great  assem- 


History  of  the  Bench  and  Bar  of  California.  243 

blage,  the  funeral  oration,  followed  by  an  impressive  sermon  by  Rev.  J.  A. 
Benton,  of  the  Congregational  church.  A  great  concourse  followed  the  remains 
to  the  grave,  and  the  people  of  Sacramento  erected  a  handsome  monument  which 
yet  marks  the  resting  place  of  their  gifted  but  unfortunate  senator.  Of  cour.se 
the  sentiment  was  now  largely  in  sympathy  with  Ferguson  and  against  his 
slayer,  and  it  was  asserted  that  the  duel  was  unfair  because  Ferguson  knew 
nothing  of  the  use  of  the  pistol.  Without  expressing  an  opinion  in  regard  to 
this.  Colonel  Baker  mentioned  it  in  his  funeral  oration,  stating  that  Ferguson 
had  never  fired  a  pistol  till  the  day  before  the  duel.  The  reply  to  all  this  is 
simply  that  he,  as  the  challenged  party,  named  the  weapons.  Before  the  latter's 
death  Johnston  left  the  city  on  the  United  States  revenue  cutter  W.  L.  Marcy, 
and  it  was  said  that  he  had  run  away  to  avoid  responsibility  for  the  duel;  but 
upon  being  indicted  by  the  San  Francisco  grand  jury,  under  the  anti-duelling 
act,  of  which  he  was  the  author,  he  came  back  to  stand  his  trial.  The  grand 
jury  of  Marin  county  having  also  presented  him  for  the  same  offence,  he  chose 
to  meet  his  trial  there,  and  surrendered  to  the  authorities  of  that  county.  The 
trial  took  place  before  the  Court  of  Sessions  at  San  Rafael.  The  district- 
attorney  prosecuted,  and  A.  P.  Crittenden,  W.  H.  Patterson,  E.  L.  Gould  and 
T.  W.  Hanson — all  since  deceased — defended.  The  defense  was  that  the  wound 
was  not  necessarily  fatal,  and  that  if  Ferguson  had  consented  to  an  operation 
when  advised  to,  he  would  have  recovered.  The  medical  testimony  supported 
this  theory,  and  the  defense  succeeded  in  securing  an  acquittal.  The  proceeding 
on  the  indictment  in  this  county  was  dropped  on  the  showing  that  the  duel 
occured  in  Marin  county.  So  far  as  the  law  was  concerned,  Mr.  Johnston 
was  free  from  the  responsibility  for  the  affair.  He  acted  on  the  principles  of  a 
mistaken  if  chivalrous  "code,"  which  was  inbred  and  inculcated  in  him,  and 
justified  him  to  his  fellowmen  who  believed  in  or  bow  to  that  code.  Men  of 
coarser  or  less  noble  mould  would  have  rested  easy  and  content  with  such 
justification,  but  his  gentle,  humane  heart  never  threw  off  the  shadow  of  the 
tragedy. 

It  is  easy  to  fall  in  with  the  general  belief  that  Geo.  Pen.  Johnston's  life, 
after  he  took  that  of  Ferguson,  was  shadowed  by  constant  self-reproach. 
He  did  avoid  publicity  to  a  great  extent,  but  the  duel  did  not  especially  occa- 
sion this  habit.  He  showed  merriment  of  heart  almost  every  day.  He  told 
us  once  that  after  the  paper  went  to  press  (in  the  afternoon)  he  liked  to  take 
his  "tod"  and  read  illustrated  journals  in  an  Italian  saloon  close  by,  because 
he  did  not  understand  their  language,  and  nobody  talked  to  him.  He  said 
his  father  was  a  clergyman. 

Johnston  came  to  California  in  1850.  He  was  in  the  assemlily  at  the 
session  of  1855.  He  was  clerk  of  the  United  States  Circuit  Court  from  1855 
to  i860.  A  lawyer  by  profession,  he  so  declared  himself  while  holding  this 
hicrative  office.       He  was  at  the  bar  from  1862  to  1866. 

In  1869,  he  bought  an  interest  in  the  Examiner  newspaper,  and  became 
the  exchange  editor.  Parting  with  his  interest  when  the  whole  paper  was 
sold  in  October,  1880,  he  was  retained  in  his  place  as  exchange  edit(^r.  and 
was  so  emploved  at  his  death,  which  occiuM-ed  on  the  4th  of  March,  1884. 
His  age  was  57  years.     He  was  a  bachelor. 

The  only  particular  statement  of  the  f|uarrcl  between  these  fervid  s])irits 
which  ever  came  to  our  notice  was  in  the  San  Francisco  Post,  of  November 
30,    189s-      P>nt.   first,   is   it  a   memory   of   Ferguson   that   lirings   this   word 


244  History  of  the  Bench  and  Bar  of  California. 

"fervid"  to  the  point  of  our  pen?     We  heard  him  often  on  the  stump.     Once 
a  man  of  opposite  pohtics  in   the  crowd   sang  out,   "Be  brief."     Ferguson 
answered,  "I  ct'/// — but  fervid."     Whereat  there  was  general  laughter. 
The  Post's  statement  referred  to,  is  as  follows : 

The  quarrel  which  resulted  in  the  duel  between  the  two  men  took  place 
on  the  evening  of  .August  19,  1858,  in  the  famous  Bank  Exchange  saloon,  on  the 
southeast  corner  of  Montgomery  and  Washington  streets.  Within  a  radius 
of  two  squares  were  situated  the  postoffice.  custom  house,  a  number  of  courts, 
banks,  etc.,  and  in  consequence  the  "Exchange"  was  constantly  thronged  with 
politicians,  government  clerks,  business  men  and  men  about  town.  It  was  there 
that  the  two  men,  in  company  with  a  number  of  mutual  friends,  were  spending 
a  spare  hour  on  the  day  they  had  the  misunderstanding  which  was  to  result  so 
fatally. 

In  the  midst  of  the  general  conversation  Johnston  fancied  he  heard  Ferguson 
mention  the  name  of  Senator  Gwin's  daughter  in  a  slurring  manner.-  Instantly 
enraged,  he  fiercely  demanded  an   immediate  retraction  and  apology. 

"I  will  never  retract  nor  apologize,"  declared  Ferguson,  hotly,  "and  for  the 
simple  reason  that  I  never  used  the  expression  you  attribute  to  me." 

"I  say  you  did,"  declared  Johnston.     "I  heard  you.     Retract  you  shall." 

■'I  did  not.     Don't  you  dare  say  so,  you !"  exclaimed  Ferguson, 

rushing  fiercely  upon  Johnston. 

With  lightning-like  quickness  Johnston  drew  and  leveled  his  pistol,  but 
before  he  could  press  the  trigger,  friends  rushed  between,  and  he  did  not  fire. 
Then  all  those  present  took  a  hand  in  trying  to  quiet  the  disturbance,  and  both 
men  were  induced  to  leave  the  place. 

The  next  daj',  however,  Johnston  challenged  Ferguson,  and  the  latter 
promptly  accepted. 

We  had  known  Ferguson,  and  felt  the  spell  of  his  speech,  long  before 
this.  It  was  a  decade  later,  when  we  came  to  know  Johnston.  We  then  sat 
by  the  latter's  side  in  newspaper  work,  and  valued  his  friendship — although 
the  man  we  loved  best  had  fallen  before  his  fire. 

Of  Ferguson,  it  may  be  added  that  he,  too,  was  a  bachelor,  and  a  year 
older  than  Johnston.  He  was  born  in  Pennsylvania,  his  parents'  native 
State,  May  9,  1825.  Only  Baker  surpassed  him  as  a  speaker,  on  the  stump 
or  in  the  court-room.  At  the  age  of  twenty-three,  his  name  was  on  the 
Democratic  electoral  ticket  of  Illinois.  Baker  who  spoke  at  his  burial,  asso- 
ciated his  name  with  those  of  Lincoln,  Douglas,  John  J.  Hardin,  "and  many 
others  who  are  the  pride  and  boast  of  the  Mississippi  valley,"  \W  H.  Hern- 
don,  once  President  Lincoln's  law  partner,  wrote  to  us  of  Ferguson  in  1869. 
"He  was  the  first  criminal  lawyer  at  the  Sangamon  bar,"  said  Mr.  Hern- 
don.  "He  was  chosen  to  deliver  the  Fourth  of  July  oration  at  Springfield, 
in  1S46,  over  such  men  as  Abraham  Lincoln,  Judge  S.  T.  Logan,  and  others. 
His  oration  was  truly  elocjuent ;  it  was  finely,  grandly  elo(juent."  Judge 
Herndon's  letter  is  in  full,  with  a  short  sketch  of  Ferguson,  in  "Representa- 
tive Men  of  the  Pacific."  Colonel  Baker's  remarks,  and  some  very  moving 
words  of  Ferguson  himself,  when  he  saw  he  was  about  to  die.  are  in  the 
little  book,  "Floquence  of  the  Far  West  (No.  i)." 
He  died  young — and,  now.  so  long  ago! 


History  of  the  Bench  and  Bar  of  California.  245 

"Brief,  brave  and  glorious  was  his  young  career, — 
His  mourners  were  two  hosts,  his   friends  and   foes; 
And  fitly  may  the  stranger,  lingering  here, 
Pray  for  his  gallant  spirit's  bright  repose; 
For  he  was  Freedom's  champion." 

Ferguson  made  two  dying  requests:  the  first — "Bury  me  in  the  county 
which  honored  me  with  a  seat  in  the  Senate."  and,  "My  friend  Baker  knew 
me  best  in  life,  let  him  speak  of  me  in  death."  He  then  asked  for  solitude, 
and  made  a  higher  petition  not  heard  by  men.  He  left  the  earth  on  the  sure 
wings  of  prayer. 


DAVID  C.  BRODERICK,  DAVID  S.  TERRY,  AND  THE  HISTORIC 

DUEL  OF   1859. 

David  C.  Broderick  was  born  in  February,  1820,  in  the  city  of  Wash-  / 
ington,  under  the  shadow  of  the  Capitol.  He  was  destined  to  stand  in  that 
noble  pile  (which,  it  has  been  said,  no  American  ever  beholds  without  pride 
or  leaves  without  regret),  and,  from  his  place  in  the  United  States  Senate, 
point  to  the  handicraft  of  his  father,  a  stone-cutter,  on  the  vast  dome  that 
draws  a  nation's  eye.  An  extended  notice  of  his  life  is  not  called  for  here. 
He  grew  up  in  New  York  city,  and  followed  his  father's  trade,  securing  a 
limited  education.  When  he  became  of  age,  and  his  fine  natural  qualities 
had  won  the  friendship  of  learned  men,  he  improved  the  new  opportunities 
to  gather  varied  knowledge — this  by  reading  borrowed  books  at  night.  At 
the  age  of  twenty-six  he  was  nominated  for  Congress  by  one  wing  of  the 
Democratic  party,  but  was  defeated.  He  left  New  York  for  California 
in  1849,  declaring  to  his  friends  that  he  expected  to  become  a  United  States 
Senator.  Arriving  in  San  Francisco  in  June,  he  secured  employment  in 
an  assay  office.  He  joined  the  fire  department  (as  he  had  done  in  New  York) 
and  became  the  foreman  of  Empire  Engine  Company,  No.  i,  which  after 
his  death  took  his  name.  He  was  elected  by  the  Democrats  a  State  Senator, 
and  served  in  the  first,  second  and  third  sessions.  At  the  second  session, 
[851,  he  was  president  of  the  Senate,  and  received  a  good  vote  in  the  Demo- 
cratic caucus  for  United  States  Senator. 

Broderick  was  a  provident  man,  addicted  to  no  vice.  I  le  brought  some 
means  from  the  East,  and  bought  town  lots,  and  so  began  the  acquisition 
of  a  fortune,  very  soon  giving  up  his  place  in  the  assay  office.  Dr.  \\'illiam 
M.  Gwin,  a  distinguished  public  man  from  Mississippi,  and  who  had  been 
a  member  of  Congress  from  that  State,  was  elected  to  the  Federal  Senate  for 
the  long  term,  at  the  first  session,  1849,  General  Fremont  being  chosen  for  tlie 
short  term.  From  that  time  until  P)ro(lerick's  death,  ten  years  afterward,  the 
Democratic  party,  which  generally  controlled  all  departments  of  the  State 
government,  was  divided  into  two  wings,  led  respectively  by  Gwin  and  Brod- 


246  History  of  the  Bench  and  Bar  of  California. 

erick.  The  great  majority  of  Gwin's  supporters  were  men  from  the  Southern 
States,  while  Broderick's  following  was  from  the  North — hut  there  were 
many  notahle  exceptions  to  this  rule. 

Broderick  at  length  obtained  the  high  prize  he  had  sought,  and  took  his 
seat  in  the  Senate  on  the  4th  of  ]\Iarch,  1857,  for  a  full  term.  Dr.  Gwin  was 
elected  at  the  same  time  for  a  shorter  period.  The  latter's  first  term  had 
expired  two  years  before,  but  the  legislature  had  failed  to  elect.  Broderick. 
now  completely  dominant,  permitted  the  election  of  his  old  rival  for  the  short 
term.  Before  doing  this  he  had  received  from  Dr.  Gwin  the  so-called  "scarlet 
letter,"  about  which  enough  was  written  by  the  Doctor's  enemies  to  fill  many 
large  volumes.  Broderick  afterwards,  on  the  stump,  read  it  to  the  people, 
referring  to  it  as  "this  humiliating  letter."  Let  it  speak  for  itself — it  is  in 
full  as  follows : 

Sacramento,  January    16.    1857. 

Dear  Sir: — I  am  likely  to  be  the  victim  of  the  unparalelled  treachery  of 
those  who  have  been  placed  in  power  through  my  aid  and  exertions.  The  most 
potential  portion  of  the  federal  patronage  is  in  the  hands  of  those,  who,  by 
every  principle  that  should  govern  men  of  honor,  should  be  my  supporters, 
instead  of  enemies,  and  it  is  being  used  for  my  destruction.  My  participation 
in  the  distribution  of  this  patronage  has  been  the  source  of  numberless  slanders 
upon  me,  that  have  fostered  a  prejudice  in  the  public  mind  against  me,  and 
have  created  enmities  that  have  been  destructive  to  mj-  happiness  and  peace  of 
mind  for  years.  It  has  entailed  untold  evils  upon  me,  and  while  in  the  senate, 
I  will  not  recommend  a  single  individual  for  appointment  to  office  in  this 
State.  Provided  I  am  elected  you  shall  have  the  exclusive  control  of  this  pat- 
ronage, so  far  as  I  am  concerned,  and,  in  its  distribution,  I  shall  only  ask  that 
it  may  be  used  with  magnanimity,  and  not  for  the  advantage  of  those  who  have 
been  our  mutual  enemies,  and  unwearied  in  their  exertions  to  destroy  us. 

This  determination  is  unalterable,  and,  in  making  this  declaration  I  do  not 
expect  you  to  support  me  for  that  reason,  or  in  any  way  to  be  governed  by  it,  but 
as  I  have  been  betrayed  by  those  who  should  have  been  my  friends,  I  am,  in  a 
measure,  powerless  myself,  and  dependent  on  your  magnanimity. 
Very   respectfully,   your   obedient   servant, 

Wm.  M.  Gwin. 

Hon.  D.   C.    Broderick. 

\\t  had  been  greatly  interested  in  Broderick  for  some  years.  It  was  at 
Sacramento,  on  the  night  of  August  9,  1859,  in  the  open  air,  that  he  gave 
the  above  letter  to  the  public,  and  we  were  present — as  we  had  been  on  the 
interesting  occasion  when  the  Know-Nothing  Lieutenant-Governor,  R.  M. 
Anderson,  of  Placerville,  declared  him  duly  elected  United  States  Senator  for 
six  years.  His  language  was  very  severe.  At  Quincy,  Plumas  county,  his 
words  in  regard  to  Dr.  Gwin  were  even  more  serious.     He  said  at  Saaramento : 

I  shall  give  you  the  letter  which  I  confidently  believe  was  the  cause  of  Sen- 
ator W.  I.  Ferguson's  death.  When  the  death  of  William  I.  Ferguson  was 
announced,  fellow  citizens,  his  desk  in  the  senate  chamber  was  broken  open, 
and  his  private  papers  .searched,  for  this  letter,  without  avail.  Ferguson  on  his 
death  bed  related  to  Estill  how  the  fatal  difficulty  had  been  sought  with  him. 
He  told  Estill  where  the  letter  could  be  found.     Estill  found  it,  and,  just  pre- 


History  of  the  Bench  and  Bar  of  California.  247 

vious  to  his  own  death,  he  told  me  where  he  had  placed  it.  A  curse  seems  to 
follow  the  secret  possession  of  this  letter.  I  give  it  to  the  public,  that  the  curse 
may  return  to  its  author ;  that  wherever  he  may  go,  by  day  or  by  night,  the 
people  shall  see  this  evidence  of  his  disgrace  worn  on  his  forehead  as  was  the 
Scarlet  Letter  worn  on  the  breast  of  Hester  Prynne. 

How  apposite,  now,  appear  the  words  of  that  man  of  fine  perception  and 
expression,  the  late  Judge  T.  H.  Rearden,  of  San  Francisco,  written  for  our 
"■Representative  Men,"  in  1870! 

The  train  of  events  which  seemed  to  make  the  death  of  the  senator  the 
irresistible  necessity  of  the  tragedy,  pointed  to  Dr.  Gwin  rather  than  to  Judge 
Terry  as  his  veritable  opponent.  It  was  not  on  the  same  plane  with  Terry 
that  Broderick's  acts  were  projected.  The  offence  rankling  between  them  was 
an  episode  rather  than  the  absorbing  emotion  ;  and  the  frightful  unities  of  the 
drama  would  seem  to  have  been  better  met,  had  Gwin  rather  than  Terry  pointed 
the  fatal  pistol  that  finished  the  career  of  our  hero. 

Milton  S.  Latham,  Governor  of  the  State,  a  Northern  Democrat,  opposed 
to  Broderick,  was  elected  and  served  out  the  latter's  term  in  the  Senate. 

Hon.  John  Conness,  now  a  resident  of  Massachusetts,  succeeded  in  1863 
as  United  States  Senator  for  a  full  term  of  six  years.  In  a  letter  to  us  called 
forth  by  our  recent  publication  of  Colonel  E.  D.  Baker's  speeches,  he  inci- 
dentally alluded  to  this  "scarlet  letter."  i\s  Mr.  Conness,  who  is  a  very 
positive  man,  speaks  as  if  he  did  not  care  who  heard,  and  as  his  words  are 
quite  interesting-  and  have  close  application  here,  we  give  them  now  their 
proper  page  in  history.     He  says : 

"I  was  honored  in  being  the  friend  of  Broderick.  I  tried  (in  his  chamber) 
to  save  him  from  the  act  which  resulted  in  his  death  and  which  ill  became  him 
as  the  leader  of  gallant  supporters — the  election  of  Gwin  to  the  senate.  Before 
it  was  accomplished  Broderick  read  to  me,  fresh  from  the  pen  of  his  antagonist, 
the  latter's  infamous  letter  of  submission  to  Broderick,  and  the  abnegation  of 
■his  former  division  of  the  spoils.  To  heighten  the  disgrace  and  to  convert  me 
to  the  despicable  act  of  its  approval,  Broderick  added  these  words:  'T  will  lead 
him  into  the  senate  with  a  halter  about  his  neck,  and  this  in  the  presence  of 
his  friends,  Mason  and  Slidell,  and  make  the  cup  of  his  disgrace  full." 

He  imagined  that  this  potent,  or  rather  impotent,  victory,  over  Gwin,  would 
challenge  my  admiration.  But.  no.  I  did  not  see  it  that  way;  and  I  asked  him 
who  would  give  him  the  right  to  so  degrade  a  senator  and  a  senate,  for  the 
mere  gratification  of  personal  triumph  over  a  political  foe. 

This  interview  I  was  bidden  to  in  his  sleeping  room  the  night  before  this 
wicked  bargain  was  consummated.  I  should  add  that  I  said  to  him,  in  bitter 
tones,  that  I  had  carried  on  this  contest  against  Gwin,  cl  al..  upon  statements 
to  others  based  upon  his  words,  and  now,  when  the  world  siiould  know  that  he 
chose  to  misdirect  my  efforts  and  those  of  others,  by  the  election  of  this  master 
of  corrupt  political  organization,  how  could  we  justify  it? 

In  1859,  the  Democracy  of  California,  which,  as  already  stated,  had 
always  been  divided,  became  two  distinct  political  parties.  This  was  caused 
by  the  policy  of  President  Buchanan's  administration  in  regard  to  the  govern- 
ment of  Kansas,  then  a  territory  (to  be  explaintd  later).  The  administration 
party  was  led  by  Gwin;  the  anti-administration  party,  by  Broderick.  The 
former  carried  the  State  by  an  overwhelming  majority,  in  spite  of  a  combina- 


248  History  of  the  Bench  and  Bar  of  California. 

tion  between  the  anti-administration  Democrats  and  the  young  RepiibHcan 
party.  At  the  State  convention  of  the  administration  Democracy  in  June  of 
that  year,  Hon.  David  S.  Terry,  Chief  Justice  of  the  Supreme  Court,  was 
one  of  the  speakers  called  upon  to  address  that  body  on  the  eve  of  final  ad- 
journment. In  liis  speech  he  used  the  words  which  led  to  the  celebrated  duel, 
and  which,  also,  will  be  found  further  along  in  these  pages. 

Broderick  read  these  words  the  next  morning,  at  the  breakfast  table  in 
his  hotel,  and  expressed  in  strong  language  his  indignation.  The  public  has 
never  been  satisfied  as  to  just  wdiat  he  did  say.  D.  \\'.  Perley.  a  lawyer  of 
some  prominence,  gave  this  version  of  it : 

"I  was  sitting  at  the  breakfast  table  of  the  International  Hotel,  directly  by 
the  side  of  Mrs.  Colonel  James.  Her  husband  sat  on  the  other  side  of  her. 
Directly  opposite  sat  Selover  and  Broderick.  I  spoke  to  both  politely  and 
took  my  seat,  and  then  commenced  a  conversation  with  Mrs.  James.  Broderick 
then  addressed  himself  to  me  as  folows :  'Your  friend  Terry  has  been  abusing 
me  at  Sacramento.' 

"I  said,  'What  is  it,  Mr.  Broderick?' 

"He  replied:  'Tlie  miserable  wretch,  after  being  kicked  out  of  the  con- 
vention, went  down  there  and  made  a  speech  abusing  me.  I  have  defended  him 
at  all  times  when  others  deserted  him.  I  paid  and  supported  three  newspapers 
to  defend  him  during  the  vigilance  committee  days,  and  this  is  all  the  gratitude 

I  get  from  the  d d  miserable  wretch  for  the  favors  I  have  conferred  on  him. 

I  have  hitherto  spoken  of  him  as  an  honest  man — as  the  only  honest  man  of 
a  miserable,  corrupt  Supreme  Court — but  now  I  find  I  was  mistaken.  I  take  it 
all  back.' 

"I  then  spoke  as  follows :     'Who  is  it  you  speak  of  as  a  wretch  ?' 

"He  said,  'Terry.' 

"I  said,  'I  will  inform  the  Judge  of  the  language  you  have  used  concerning 
him.' 

"He  said,  'Do  so;  I  wish  you  to  do  so.     I  am  responsible,  for  it.' 

"I  then  said,  'You  would  not  dare  to  use  this  language  to  him.' 

"He  sneered  at  this,  and  echoed  me — 'Would  not  dare !' 

"I  replied,  'No,  sir,  you  would  not  dare  to  do  it,  and  you  shall  not  use  it 
to  me  concerning  him.  I  shall  hold  you  personally  responsible  for  the  language 
yoM  have  used.'  " 

The  gentleman  referred  to  by  Mr.  Perley  above,  was  A.  A.  Selover,  a 
man  of  eventful  life,  who  had  been  a  real  estate  dealer  and  notary  in  San 
Francisco,  and  was  then  associated  with  Fremont  in  the  great  Mariposa  estate. 
He  had  read  law-,  but  was  never  admitted  to  practice,  w^e  believe.  He  was 
a  Major  in  the  War  with  Mexico.  He  had  been  a  Democrat  and  had  been 
offered  by  President  Pierce  the  postmastership  at  San  Francisco,  but  declined. 
A  native  of  the  Empire  State,  he  returned  with  a  considerable  fortune  and 
settled  in  New-  York  city  a  year  or  so  after  the  date  of  the  tragedy  which 
is  now  concerning  us.     He  joined  the  new  Republican  party  in  1856. 

Major  Selover  w^as  shown  Mr.  Perley's  statement  of  what  occurred  at 
the  breakfast  table,  and  he  said : 

The  whole  language  used  by  Mr.  Broderick  was  in  an  undertone  of 
voice.  Mrs.  Selover,  who  sat  on  my  right,  did  not  hear  what  Mr.  Broderick 
said  on  the  occasion.     Mr.  Broderick  had  but  a  few  moments  before  read  in 


History  of  the  Bench  and  Bar  of  California.  249 

the  Sacramento  Union  Judge  Terry's  offensive  remarks  in  the  convention.  When 
Mr.  Perley  retired  from  the  table,  I  expressed  my  regret  at  what  had  occurred, 
to  which  Mr.  Broderick  replied  that  he  was  provoked  into  it  by  the  remarks 
of  Judge  Terry  upon  him.  I  have  been  induced  to  make  this  statement  only 
by  the  fact  that  Judge  Terry's  friends  have  gone  beyond  the  record,  which  is 
shown  by  the  correspondence  previous  to  the  duel  to  have  contained  all  the 
language  Judge  Terry  had  to  take  offense  at. 

I  have  no  recollection  of  the  word  "damned"  being  used  upon  that  occasion. 
I  sat  directly  opposite,  and,  had  it  been  used,  I  must  have  heard  it. 

Perley  himself,  as  the  friend  of  Terry,  challenged  Broderick.  The  latter 
declined,  because  their  stations  in  life  were  not  equal,  and  because  he,  Brod- 
erick, was  about  to  make  a  canvass  of  the  State.  When  the  election  had 
passed,  so  disastrously  to  the  Broderick  Democracy  and  the  Republicans, 
Judge  Terry  resigned  his  place  as  Chief  Justice  of  the  Supreme  Court  and 
proceeded  to  San  Francisco. 

Let  us  now  lool^  at  the  Judge. 

David  S.  Terry  was  born  in  Kentucky,  in  March,  1823.  His  ancestors, 
many  generations  before,  had  come  from  Ireland  and  Scotland,  and  settled  in 
Virginia.  His  father  was  a  cotton  planter,  and  took  his  family  to  Texas 
before  the  acquisition  of  that  country  by  the  United  States.  The  son,  after 
Texan  independence,  which  his  own  army  service  helped  to  achreve,  read 
law,  and  was  admitted  to  practice  at  Houston.  After  the  \\2.r  with  Mexico, 
in  which  he  also  took  part,  he  led  a  company  of  Texans  to  California  in 
1849,  ^^^^,  after  a  short  experience  as  a  miner  in  Calaveras  coimty,  began 
law  practice  in  the  same  year,  at  Stockton. 

In  1850  he  was  defeated  for  mayor  of  Stockton  by  Samuel  Purdy,  who 
was  afterwards  Lieutenant-Governor.  He  practiced  law  in  partnership  with 
D.  W.  Perley  from  1850  to  the  close  of  1855,  when  he  took  his  seat  on  the 
Supreme  bench,  as  the  elect  of  the  Native  American,  or  Know  Nothing  party, 
for  the  term  of  four  years.  He  became  Chief  Justice,  on  the  death  of  Hon. 
Hugh  C.  Murray,  in  September,  1857. 

When  the  great  vigilance  committee  of  1856  was  in  absolute  control  of 
San  Francisco,  and  Governor  J.  Neely  Johnson  issued  his  proclamation  declar- 
ing the  city  was  "in  a  state  of  insurrection,"  Judge  Terry  was  on  a  visit  to 
the  metropolis.  Some  State  arms  had  been  shipped  from  Sacramento  on  a 
schooner  to  be  used  by  State  troops  in  San  Francisco,  but  a  party  of  vigilantes, 
under  J.  L.  Durkee,  seized  the  vessel  in  the  strait  between  San  Pablo  and 
San  Francisco  bays.  The  committee,  in  investigating  the  matter  of  this 
shipment  of  arms,  desired  to  take  the  evidence  of  one  Reuben  Maloney.  who 
was  l)elieved  to  know  all  about  it,  and  who,  being  a  strong  enemy  of  the  com- 
mittee, refused  to  attend  and  testify.  It  was  determined  to  take  him  by  force, 
and  S.  A.  Hopkins,  vigilance  sergeant,  and  two  men,  were  ordered  to  that 
duty.  They  found  Maloney  in  a  room  with  Judge  Terry  and  a  friend.  The 
Judge  told  them  that  they  should  not  make  the  arrest  in  his  presence.  Hop- 
kins withdrew  with  his  men  and  procured  reinforcements.     Returning  in  quest 


250  History  of  the  Bench  and  Bar  of  California. 

of  Maloney,  lie  met  him  on  the  street,  proceeding  to  the  State  Armory,  accom- 
panied by  Judge  Terry  and  friends,  armed  with  guns.  The  arrest  being 
resisted,  Hopkins  seized  Judge  ferry's  gun,  and  the  Judge  instantly  stabbed 
him  in  the  neck,  inflicting  a  terrible  wound.  The  Judge  was  promptly  over- 
powered, disarmed,  and  was  incarcerated  in  "Fort  Gunnybags."  He  was 
held  a  close  prisoner  for  se\en  weeks,  and,  after  undergoing  a  long  trial, 
during  which  he  took  down  himself  the  evidence  of  witnesses,  he  was  released, 
owing  to  the  recovery  of  Hopkins  and  the  prospect  of  an  early  voluntary 
disbandment  of  the  committee. 

In  1862,  Judge  Terry  went  to  the  Southern  states,  passing  through  Mexico, 
and  joined  the  Confederate  army.  After  serving  a  while  on  the  staff  of 
Gen.  Bragg,  he  organized  a  regiment  in  Texas,  which  he  C()mmanded  in 
several  battles.  At  the  close  of  the  war  he  commanded  a  brigade,  a  separate 
command.  He  was  rigid  in  discipline,  and  severely  punished  raiding.  An 
officer  sent  to  inspect  the  condition  of  the  troops  in  his  department  eulogized 
Terry's  discipline.  When  the  war  closed  he  went  to  Mexico.  Maximillian 
offered  him  a  high  military  command,  which  he  declined,  and  devoted  himself 
to  cotton  raising  for  two  years,  but  with  no  success.  Then,  in  1869,  he 
returned  to  California.  .Vfter  a  short  stay  at  White  Pine,  Nevada,  he  settled 
down,  in  1870,  in  his  old  town,  Stockton,  where  he  resided  until  his  death. 

He  was  a  member  of  the  constitutional  convention  of  1878,  serving  as 
chairman  of  the  committee  of  the  legislative  department,  and  as  a  member 
of  the  committee  on  judiciary.  He  was  author  of  the  clause  declaring  the 
responsibility  of  l)ank  directors  to  depositors.  He  took  the  stump  in  support 
of  the  new  constitution,  but  declined  a  nomination  for  Supreme  Judge  on  the 
ticket  of  the  new  constitution  party.  He  was  a  candidate  for  presidential 
electfir  on  tlie  Democratic  ticket  in  1880.  and  was  the  only  nominee  on  that 
ticket  defeated,  the  vote  being  close,  and  he  falling  behind,  owing  it  is  sup- 
posed, to  his  name  being  scratched  by  old  friends  of  Broderick. 

We  took  occasion  to  remark  of  Judge  Terry,  a  year  or  so  before  his  death, 
as  follows : 

The  prominent  lines  of  Judge  Terry's  character  are  unmistakable  and  well 
known  to  a  broad  acquaintance.  He  has  great  aggressiveness  and  undaunted 
firmness  of  purpose.  He  never  quails,  even  before  a  raking  fire.  A  man  of 
strong  friendships,  it  quite  naturally  follows  that  he  has  also  strong  prejudices; 
but  he  is  easily  placated,  and  in  the  path  of  mercy  a  little  child  could  lead  him. 
He  is  generous.  His  nephew  and  partner,  who  was  long  an  inmate  of  his  home, 
and  who  has  given  us  a  glimpse  of  his  private  life,  speaks  of  him  in  terms  of 
tenderness.  His  political  foeman,  Henry  Edgerton.  who  defeated  him  for  pres- 
idential elector  in  1880,  stated  to  us  that  he  cherished  for  David  S.  Terry  the 
highest  personal  regard.  His  charities  have  been  many,  but  never  ostentatious; 
in  this  respect  his  left  hand  has  not  known  what  his  right  hand  has  done.  He  is 
very  impressive  and  effective  before  juries,  but  in  his  addresses  in  the  court- 
room, as  elsewhere,  as  also  in  conversation,  he  never  attempts  ornament,  but 
rather  disdains  it.  His  speech  is  plain,  but  uttered  with  the  force  of  frankness, 
the  eloquence  of  a  chaste  simplicity,  and  the  precision  that  is  the  birthright  of 
a  masculine  intellect.     False  pride,  shufifling  and  cant  he  opposes  with  the  full 


History  of  the  Bench  and  Bar  of  California.  251 

impulse  and  momentum  of  his  nature.  He  is  of  giant  physical  stature.  He 
stands  six  feet  three  inches  in  height,  with  Atlantean  shoulders  and  sinews,  has 
a  weight  of  225  pounds,  is  finely  preserved,  and  looks  ten  years  younger  than 
his    real   age. 

We  will  turn  awav  from  the  thrilling  drama  which  the  life  of  this  remark- 
able man  unfolds,  and  pursue  it  to  its  tragic  ending,  under  the  head  of  the 
Sharon  cases,  elsewhere  in  this  History, 

Wt  resume  the  account  of  the  duel : 

When  he  resigned  his  seat  on  the  Supreme  bench,  and  repaired  to  San 
Francisco,  as  before  stated,  Judge  Terry  addressed  the  following  note  to 
Senator  Broderick.  He  wrote  it  at  Oakland  before  crossing  the  bay,  where 
he  delivered  it  to  his  friend  Benham. 

Oakland,  Sept.  8,  1859. 
Hon.  David  C.  Broderick — 

Dear  Sir:  Some  two  months  ago,  at  the  public  table  of  the  International 
Hotel,  in  San  Francisco,  you  saw  fit  to  indulge  in  certain  remarks  concerning 
me  which  are  offensive  in  their  nature.  Before  I  heard  of  the  circumstances, 
your  note  of  the  29th  of  June,  addressed  to  D.  W.  Perley,  in  which  you  declared 
that  you  would  not  respond  to  any  call  of  a  personal  character  during  the 
political  canvass  just  concluded,  had  been  published.  I  have,  therefore,  not 
been  permitted  to  take  any  notice  of  those  remarks  until  the  expiration  of  the 
limit  fixed  by  yourself.  I  now  take  the  earliest  opportunity  to  require  of  you 
a  retraction  of  those  remarks.  The  note  will  be  handed  to  you  by  my  friend, 
Calhoun  Benham,  Esq.,  who  is  acquainted  with  its  contents,  and  will  receive  your 
reply.  D.  S.  Terry. 

Mr.  Broderick  received  the  note,  at  the  hands  of  Col.  Benham  on  the 
morning  of  the  same  day,  and  said  he  would  answer  in  writing  on  the  morrow. 
Before  tomorrow  came  Col.  Benham  addressed  this  note : 

San  Francisco,  Sept.  8,  1859. 
Hon.  David  C.  Broderick — 

Sir:  Should  you  have  occasion  to  communicate  sooner  than  the  time  agreed 
upon  between  us,  I  will  be  found  at  the  Metropolitan  Hotel.  1  omitted  to  leave 
mv  address  this  morning. 

Very  respectfully,  your  obedient  servant, 

Cai.hoi-n   Benham. 

Mr.  Broderick  responded  to  Judge  Terry's  letter  the  next  day : 

San  Francisco,  Sept.  9,  1859. 
Hon.  D.  S.  Terry — 

Sir:  Your  note  of  September  8  reached  me  through  the  hands  of  Calhoun 
Benham,  Esq.  The  remarks  made  bv  me  in  the  conversation  referred  to  may 
be  the  subject  of  future  misrepresentation,  and,  for  obvious  reasons,  I  have  to 
desire  you  to  state  what  the  remarks  were  that  you  designate  in  your  note  as 
offensive,  and  of  which  you  retpiire  from  me  a  retraction.     I  remain  etc., 

I).   C.   Brodkuick. 

Judge  Terry  then  sent  his  second  letter: 

San  Francisco,  Sept.  9,  1859. 
Hon.   D.  C.  Broderick — 

Sir:  In  reply  to  ynur  note  of  this  date  I  liavc  to  say  that  the  offensive 
remarks  which  I  alluded  to  in  my  conmninicatidu  of  yesterday  are  as  follows: 
'T   have   hitherto   considered   and   spoken   of   him    (myself)    as   the   only   honest 


252  History  of  the  Bench  and  Bar  of  California. 

man  on  the  Supreme  Court  bench,  but  I  now  take  it  all  back" — thus,  by  impli- 
cation, reflecting  on  my  personal  and  official  integrity.  This  is  the  substance  of 
your  remarks,  as  reported  to  me.  The  precise  terms,  however,  in  which  such 
an  implication  was  conveyed  are  not  important  to  the  question.  You  yourself 
can  best  remember  the  terms  in  which  you  spoke  of  me  on  the  occasion  referred 
to.  What  I  require  is  the  retraction  of  any  words  which  were  used  calculated 
to  reflect  on  my  character  as  an  officer  or  a  gentleman. 

I  remain  your  obedient  servant, 

D.   S.  Terky. 

And  the  senator  replied  : 

Fkid.vy  Evening,  Sept.  g,  1859. 
Hon.  D.  S.  Terry — 

Sir:  Yours  of  this  date  has  been  received.  The  remarks  made  by  me  were 
occasioned  by  certain  offensive  allusions  of  yours  concerning  me  made  in  the 
convention  at  Sacramento,  and  reported  in  the  Union  of  June  25.  Upon  the 
topic  alluded  to  in  your  note  of  this  date,  my  language,  so  far  as  my  recollection 
serves  me,  was  as  follows : 

"During  Judge  Terry's  incarceration  by  the  vigilance  committee  I  paid  two 
hundred  dollars  a  week  to  support  a  newspaper  in  his  (your)  defense.  I  have 
also  stated,  heretofore,  that  I  considered  him  (Judge  Terry)  the  only  honest 
man  on  the  Supreme  bench ;  but  I  take  it  all  back." 

You  are  the  proper  judge  as  to  whether  this  language  affords  good  ground 
for  offense.     I  remain,  etc., 

D.   C.   Broderick. 

Judge  Terry  then  wrote : 

S.AN  Fr.\ncisco,  Sept.   10,  1859. 
Hon.  D.  C.  Broderick — 

Sir:  Some  months  ago  you  used  language  concerning  me  offensive  in  its 
nature.  I  waited  the  lapse  of  a  period  of  time  fixed  by  yourself  before  I  asked 
reparation  therefor  at  your-  hands.  You  replied,  asking  a  specification  of  the 
language  used  which  I  regarded  as  offensive.  In  another  letter  I  gave  you  the 
specification,  and  reiterated  my  demands  for  retraction.  To  this  last  letter 
you  reply  acknowledging  the  use  of  the  offensive  language  imputed  to  you,  and 
not  making  the  retraction   required. 

This  course  on  your  part  leaves  me  no  alternative  but  to  demand  the  satis- 
faction usual  among  gentlemen,  which  I  accordingly  do. 
Mr.  Benham  will  make  the  necessary  arrangements. 

Your  obedient  servant, 

D.   S.  Terry. 

\nd  the  correspondence  closed  with  the  following: 

S.\N  Fu.\Ncisco,  Sept.   10,  1859. 
Hon.  D.  S.  Terry — 

Sir:  Your  note  of  the  above  date  has  been  received — at  one  o'clock  A.  M., 
September  10.  In  response  to  the  same,  I  will  refer  you  to  my  friend,  Hon. 
J.  C.  McKibben,  who  will  make  the  satisfactory  arrangements  demanded  in  your 
letter.     I  remain,  etc., 

D.  C.   Broderick. 

The  following  terms  of  the  duel   were  agreed  upon : 

I.  Principals  to  be  attended  by  two  seconds  and  a  surgeon  each;  also  by 
a  person  to  load  the  weapons.  This  article  not  to  exclude  the  drivers  of  the 
vehicles.  If  other  parties  obtrude,  the  time  and  place  may  be  changed  at  the 
instance  of  either  party. 


History  of  the  Bench  and  Bar  of  Califoniia.  253 

2.  Place  of  meeting — on  the  farm  adjoining  the  Lake  House  ranch  (Laguna 
Merced)   occupied  by  William  Higgins. 

3.  Weapons — duelling  pistols. 

4.  Distance — ten  paces;  parties  facing  each  other;  pistols  to  be  held  with 
the   muzzle  vertically   downward. 

5.  Word  to  be  given  as  follows,  to-wit :  "Gentlemen,  are  you  ready?" 
Upon  each  party  replying  "Ready,"  the  word  "Fire"  shall  be  given,  to  be  followed 
by  the  words,  "One.  tw-o"  ;  neither  party  to  raise  his  pistol  before  the  word 
"Fire,"  nor  to  discharge  it  after  the  word  "Two."  Intervals  between  the  words 
"Fire,"  "One,"  "Two,"  to  be  exemplified  by  the  party  winning  the  word,  as  near 
as  may  be. 

6.  Weapons  to  be  loaded  on  the  ground  in  the  presence  of  a  second  of  each 
party. 

7.  Choice  of  position  and  the  giving  of  the  word  to  be  determined  by 
chance — throwing  a  coin,  as  usual. 

8.  Choice  of  the  two  weapons  to  be  determined  by  chance  as  in  Article  7. 

9.  Choice  of  the  respective  weapons  of  the  parties  to  be  determined  on  the 
ground,  by  throwing  up  a  coin,  as  usual — that  is  to  say,  each  party  bringing 
their  nistols,  and  the  pair  to  be  used  to  be  determined  by  chance  as  in  article  7. 

Many  years  ago  a  distinguished  jurist  of  this  State  read  to  us  an  extended 
account  by  himself  of  the  trouble  between  Terry  and  Broderick,  from  its 
remote  origin  to  its  fatal  culmination.  Remembering  that  it  was  full  of  inter- 
est from  an  historical  standpoint,  we  requested  of  him  to  let  us  reproduce  the 
paper  in  connection  with  our  own  narrative.  He  consented,  and  we  now 
give  his  account,  omitting  a  considerable  portion,  owing  to  its  great  length. 
It  explains  the  influence  of  the  troubles  in  Kansas  on  California  politics,  and 
also  gives  the  remarks  of  Judge  Terry  which  were  offensive  to  Broderick — 
which  we  have  not  set  forth  for  that  reason. 

Before  proceeding  with  a  detailed  account  of  this  terrible  tragedy  and  the 
immediate  circumstances  and  causes  which  led  up  to  it,  it  is  proper  to  notice 
the  condition  of  society  in  California  in  the  earlier  days,  and  the  political  condi- 
tion of  affairs  during  the  first  decade  of  the  State's  history. 

During  the  year  1849,  and  for  a  few  years  thereafter,  there  was  a  large 
immigration  to  California  from  nearly  all  the  States  of  the  Union.  They  were 
mostly  young  men  under  forty,  years  of  age,  who  came  seeking  fortunes  in  this 
new  and  promising  land.  Many  were  ambitious  for  political  distinction,  and 
regarded  California  as  a  promising  field  for  political  entcrpri-.e.  Of  the  latter 
class,  the  Southern  States  furnished  the  larger  proportion,  and  they  came  fully 
impressed  with  the  belief  that  they  were  the  superiors  of  the  Northern  men  in 
the  qualities  of  gentlemen  born  to  rule;  and  therefore  the  party  leaders  and 
directors  of  political  affairs  were  to  be  found  mainly  in  the  ranks  of  these  South- 
ern gentlemen,  some  of  whom  before  coming  to  California  had  held  public  posi- 
tions of  honor.  They  believed  in  slavery  as  a  beneficent  institution,  and  for 
the  most  part  regarded  the  "Code  of  Honor"  as  an  appropriate  means  for  the 
settlement  of  personal  grievances.  They  considered  a  Southern  man  greatly 
superior  to  one  of  Northern  birth  and  education,  in  prowess  and  courage,  and 
in  the  skillful  use  of  deadly  weapons;  and  consequently  there  wore  many  duels, 
first  and  last,  in  a  considerable  number  of  which  a  Northern  man  was  one  of 
the  combatants,  who,  notwithstanding  his  Northern  origin  and  education,  mani- 
fested a  courage  and  skill  which  more  than  astonished  his  hot-headed  adver- 
sary. The  experience  of  a  few  years  taught  this  presuming  class  of  Southern 
young  men  that  latitude  and  longitude  were  not  safe  criteria  for  the  determina- 
tion of  courage  and  skill.     Tliey  soon  learned  that  wOiether  born  and  reared  in 


254  History  of  the  Bench  and  Bar  of  California. 

the  highlands  of  the  North  or  on  the  plantations  of  the  South,  "a  man's  a  man 
for  a'  that." 

It  is  just  to  say  of  the  immigration  from  the  South,  that  many  were  gentle- 
men of  high  educational  attainments  and  oi  refined  and  cultured  manners.  In 
social  life  they  were  attractive  and  genial  companions,  considerate  of  the  opin- 
ions of  others.  This  class  of  gentlemen  was  quite  unlike  the  pretentious  and 
boasting  middle  rank  and  low-grade  chivalry,  who  were  wont  to  carry  upon  their 
persons  pistols  and  knives,  with  which,  for  even  slight  afifronts,  they  professed 
themselves  disposed  "to  blow  the  top  of  your  head  ofif." 

Mr.  Broderick  came  to  California  from  New  York  early  in  1849,  and  took 
up  his  residence  in  San  Franci-^co.  He  was  ambitious  and  inclined  to  political 
life.  He  was  a  man  of  strong  natural  ability,  and  possessed  an  indomitable  will 
and  the  power  of  drawing  men  to  him  as  a  leader. 

Dr.  William  M.  Gvvin.  who  came  to  California  in  1849,  was  a  Southern 
man  by  birth,  residence,  and  education.  His  sympathies  were  with  the  people 
of  his  native  South,  and  with  their  "peculiar  institution"  of  slavery.  He  was 
a  man  of  vigorous  intellectual  force,  and  was  in  the  early  days  of  California 
the  leader  of  his  party.  The  first  legislature  of  the  State  elected  him  an  United 
States  Senator,  and  in  casting  lots  for  terms,  he  drew  that  which  expired  in 
March,  1855.  His  position  as  a  Senator  added  to  his  strength  as  leader  of 
the  Democratic  party.  His  influence  was  exercised  for  the  advancement  of  his 
friends  to  the  offices  of  Federal  patronage,  and,  in  the  disposition  of  them,  men 
of  Southern  l)irth  and  education,  all  other  things  being  equal,  were  preferred. 
To  be  eligible  to  office,  either  Federal  or  State,  it  was  essential,  as  a  general 
rule,  to  be  sound  on  the  question  of  slavery,  according  to  the  standards  of 
Senator  Gwin  and  his  Southern  allies.  This  was  carried  to  such  an  extent 
during  the  administrations  of  Pierce  and  Buchanan,  that  the  custom-house  at 
San  Francisco  came  to  be  known  as  the  "Virginia  Poor  House." 

Mr.  Broderick's  power  as  a  leader  steadily  increased.  His  following  com- 
prised people  from  every  part  of  the  Union,  though  its  principal  strength  was 
from  the  States  north  of  "Mason  and  Dixon's  line."  As  his  power  grew,  the 
opposition  of  Senator  Gwin  and  his  Southern  followers  and  pro-slavery  allies 
from  Northern  States  increased  and  strengthened  until  it  became  furious ;  but 
Broderick  was  equal  to  the  emergency,  and  his  following  grew  stronger  and 
stronger  and  as  earnest  and  vehement  as  that  of  its  adversaries. 

In  the  summer  of  1853,  at  the  Democratic  State  convention  held  at  Benicia 
for  the  nomination  of  a  State  ticket,  the  two  factions  of  the  party  measured 
swords.  The  Southern  wing,  which  was  called  the  chivalry,  was  led  by  several 
of  Senator  Gwin's  lieutenants,  scarcely  inferior  in  political  generalship  to  him- 
self. Broderick  was  there  in  person,  and  conducted  the  fight  against  his  oppo- 
nents with  great  adroitness  as  well  as  boldness.  His  ticket  was  nominated, 
with  John  Bigler,  a  native  of  Pennsylvania,  then  Governor  of  the  State,  at  its 
head.  This  ticket  was  elected,  and  Broderick  was  then  regarded  by  the  major- 
ity of  the  Democratic  party  as  its  leader  in  the  State,  though  the  Gwin  or 
chivalry  wing  yielded  an  unwilling  acquiescence. 

At  the  session  of  the  legislature  assembled  at  Benicia  early  in  1854,  Brod- 
erick and  some  of  his  friends  attempted  to  force  on  the  election  of  a  United 
States  Senator  to  succeed  Dr.  Gwin,  whose  term  was  to  expire  in  March,  1855. 
This  movement  was  regarded  by  many  of  Broderick's  friends,  and  others,  as 
an  injudicious  and  reprehensible  step,  as  it  was  an  attempt  to  do  by  that  legis- 
lature a  duty  which  properly  appertained  to  the  legislature  to  be  chosen  at  the 
next  election.     The  attempt  failed. 

The  legislature  which  assembled  at  Sacramento,  the  new  capital  of  the 
State,  in  January,  1855,  made  an  ineffectual  effort  to  elect  a  Senator.  No  one 
candidate  could  obtain  a  majority.  The  same  thing  occurred  again  at  the  legis- 
lature which  convened  in  1856.     This  was  the  "Know  Nothing"  legislature. 

The  Know   Nothing  party  became  dominant  in   the   State  in    1855.     It   was 


History  of  the  Bench  and  Bar  of  California.  255 

composed  largely  of  the  chivalry  branch  of  the  Democratic  party,  and  Whigs 
who  had  become  scattered  for  want  of  a  fold  in  which  to  gather  them  in  united 
force. 

By  means  of  the  Know  Nothing  organization,  the  opportunity  came  to  the 
chivalry  to  overthrow  Broderick.  and  his  close  followers.  David  S.  Terry,  a 
resident  of  Stockton,  was  a  strong  pro-slavery  Democrat.  He  had  resided  in 
Texas  from  his  early  boyhood  until  he  came  to  California  in  1849.  He  aban- 
doned his  party  and  became  a  leading  Know  Nothing,  and  was  nominated  at 
its  State  convention  in  1855  for  Justice  of  the  Supreme  Court,  and  his  ticket 
was  elected. 

The  Know  Nothing  party  was  short-lived,  for.  in  the  fall  of  1856.  the 
Democratic  party,  then  under  the  leadership  of  Broderick,  gained  the  ascend- 
ancy, and  elected  a  legislature  strongly  Democratic.  At  its  session  in  January. 
1857.  Broderick  was  elected  United  States  Senator  for  the  term  to  commence 
on  the  4th  of  March  of  that  year.  There  was  also  the  partly  unexpired  term. 
which  commenced  on  the  4th  of  March,  1855.  to  be  filled,  and  Dr.  Gwin  and 
Milton  S.  Latham  were  aspirants  for  the  position.  The  struggle  between 
them  for  it  waxed  strong  and  bitter.  Each  sought  the  aid  and  influence  of 
Broderick,  who  at  the  time  had  them  at  his  feet.  Broderick  preferred  Dr. 
Gwin.  and  he  was  elected.  Gwin  humbly  acknowledged  his  indebtedness  to 
Broderick  for  his  timely  and  effectual  assistance.  This  was  done  in  a  com- 
munication over  his  own  name,  addressed  to  the  people  of  California,  after 
he  was  elected.* 

While  this  senatorial  struggle  was  in  progress,  there  was  going  on  in  the 
territory  of  Kansas  one  even  more  vital  to  the  cause  of  civil  liberty.  It  was  a 
contest  between  the  Free-State  men  of  that  territory  and  the  pro-slavery  peo- 
ple of  Missouri  and  other  Southern  States,  who  had  gone  there,  some  of  them 
with  their  slaves,  believing  that  this  species  of  property,  according  to  the 
doctrine  of  the  Dred  Scott  decision,  stood  protected  by  the  National  Constitu- 
tion, and  was  as  secure  in  their  possession  as  any  other  kind  of  property 
so  long  as  Kansas  might  remain  a  territorial  government,  and  always  unless 
the  people  in  their  sovereign  capacity  should,  in  the  adoption  of  a  State  consti- 
tion,  declare  slavery  to  be  unlawful  within  its  borders. 

The  people  of  California  had  not  then  become  generally  infcrested  in  the 
free-State  and  pro-slavery  contest  of  Kansas.  In  the  latter  part  of  the  year,  a 
convention  of  pro-slavery  delegates  met  at  the  town  of  Lecompton,  in  Kansas, 
for  the  purpose  of  framing  a  constitution  for  the  prospective  State,  a  work 
which  the  convention  performed,  taking  care  to  provide  for  the  establishment 
of  slavery  as  a  permanent  institution  of  the  State.  This  provision  of  the  pro- 
posed constitution  was  alone  submitted  to  the  electors  of  the  territory  for  their 
adoption  or  rejection.  Init  by  another  provision  of  the  same  instrument,  the 
owners  of  slaves  then  in  the  territory  were  confirmed  in  their  right  in  and  to 
them,  in  the  State  of  Kansas,  even  though  the  provision  submitted  might  be 
rejected.  The  free-State  men  demanded  a  submission  of  the  entire  instru- 
memt,  to  be  passed  on  by  the  electors  of  the  territory,  which,  being  denied,  they 
refused  to  participate  in  the  election.  The  result  was  that  the  question  sub- 
mitted was  adopted  by  a  large  majority  of  a  very  small  vote  cast. 

President  Buchanan  had  promised  the  people  that  any  constitution  which 
might  be  formed  for  Kansas  as  a  State  should  be  submitted  to  them  for  their 
adoption  or  rejection :  but  upon  the  reception  of  the  Lecompton  constitution, 
he  repudiated  his  pledge  made  to  the  people,  and  on  the  2d  of  February.  1858, 
transmitted  the  instrument  to  Congress,  accompanied  by  a  special  message 
urging  the   speedy   admission   of    Kansas    as    a    State   of    the    Union    under   the 


*  Broderick's  choice  was  Hon.  J.  W.  McCorkle,  ex-Congressman  and  ex- 
District  Judge,  of  Oroville,  but,  powerful  as  he  was,  he  could  not  effect  that 
estimable  man's  election.  As  between  Latham  and  Gwin.  he  preferred  Gwin. 
because  of  the  latter's  abnegation  in  the  "Scarlet  Letter." — EDITOR. 


256  History  of  the  Bench  and  Bar  of  California. 

Lecompton  constitution,  although,  as  he  in  effect  expressed  it,  the  instrument 
had  not  been  fully  submitted  to  the  people  for  their  adoption  or  rejection. 
Against  admission  under  the  proposed  constitution,  there  arose  in  both  houses 
of  Congress  a  strong  oppositon,  led  by  Senator  Douglas,  of  Illinois,  with 
whom  was  Senator  Broderick,  who  was  an  uncompromising  opponent  of  the 
measure.  Senator  Gwin  exerted  all  his  strength  in  support  of  it,  and  from  that 
time  the  California  Senators  became  bitter  enemies.  The  immediate  result 
\vas  that  Broderick  fell  under  the  ban  of  the  administration,  while  Dr.  Gwin 
came  into  increased  favor  with  the  President,  whose  sympathies  were  more 
than  cordial  with  those  in  Congress  who  were  laboring  to  make  Kansas  a 
slave  State.  Thenceforth  the  Federal  patronage  for  California  was  adminis- 
tered by   Senator  Gwin. 

While  the  question  of  the  admission  of  Kansas  under  the  Lecompton  con- 
stitution was  convulsing  Congress,  the  whole  country  became  intensely  agitated 
on  the  subject,  and  the  people  of  California  soon  arrayed  themselves  on  the 
one  side  or  the  other  of  the  disturbing  question.  Those  who  were  strongly 
pro-slavery  were  first  in  the  arena  of  the  conflict ;  those  opposed  to  the  exten- 
sion of  slavery  were  not  much  behind,  and  the  indifferent  waite^  to  see  the 
turn  of  events  before  choosing  sides.  The  Republicans,  then  a  party  of  nascent 
growth  in  California,  were  to  a  man  opposed  to  the  Lecompton  fraud,  and 
the  friends  of  Senator  Broderick  were  for  the  most  part  equally  so,  but  fully 
three-fifths  of  the  people  of  the  State  were  either  in  favor  of  the  e.xtension  of 
slavery,  or  indifferent  respecting  the  question. 

In  the  summer  of  1858  the  Democratic  party  met  at  Sacramento  and 
divided  forces  on  the  question  of  the  admission  of  Kansas  as  a  State  under 
the  Lecompton  constitution,  and  questions  cognate  to  the  subject.  The  party 
from  that  time  became  two-winged,  and  each  held  its  convention  and  nomi- 
nated candidates  for  Justice  of  the  Supreme  Court  and  State  Controller,  the  only 
two  offices  to  be  filled  by  the  election  of  that  year. 

The  administration  wing  was  denominated  the  "Lecompton"  party,  and  the 
opposition  wing  was  called  the  "Anti-Lecompton"  party;  some  called  it  the 
"Douglas"  party.  With  the  anti-Lecompton  wing  of  the  Democracy,  the  Repub- 
licans united  on  the  candidates  for  Justice  of  the  Supreme  Court ;  but,  notwith- 
standing this,  the  Lecompton  wing  carried  the  election  by  a  fair  though  not 
large   majority. 

The  California  Senators  were  in  their  places  during  the  winter  of  1858-9, 
and  each  devoted  his  influence  on  the  side  of  the  question  he  espoused. 

The  leaders  of  the  Lecompton  party  in  California  were  unscrupulous  as 
to  the  means  which  might  be  employed  to  make  Kansas  a  slave  State.  They 
were  for  slavery,  and  hated  those  who  boldly  confronted  them.  They  hated 
Broderick,  for  his  part  in  the  struggle,  with  malignant  personal  hatred,  and  no 
one  of  these  pro-slavery  leaders  was  more  bitterly  hostile  to  Broderick  than  was 
Terry,  who  had  declared  himself  not  only  the  friend  of  slavery  extension,  but 
also  of  reopening  the  African  slave  trade. 

In  June,  1859,  the  two  wings  of  the  Democracy  met  in  the  State  conventions 
at  Sacramento  to  place  in  nomination  each  a  full  ticket  for  State  officers.  The 
anti-Lecompton  wing  was  the  first  to  make  its  nominations.  At  that  time  the 
California  Senators  had  returned  home,  and  were  preparing  to  enter  upon 
the  approaching  campaign.  Judge  Terry  was  placed  before  the  Lecompton 
convention  for  the  office  of  Justice  of  the  Supreme  Court,  as  his  own  successor, 
but  he  failed  to  receive  the  nomination.  It  fell  to  the  lot  of  one  of  his  com- 
petitors. The  nominations  having  been  completed,  there  was  held  in  the  hall 
or  place  of  the  convention,  on  the  evening  of  the  24th  of  June,  a  meeting  to 
ratify  the  nominations  made.  At  that  meeting  Terry  was  called  upon  to  speak, 
and  he  responded  in  a  vehement  speech,  in  which  he  inveighed  coarsely  and 
insultingly  against  the  anti-Lecompton  party,  of  which  Broderick  was  a  mem- 
ber and  the  leader  in  the  State,  and  against  Broderick  personally.  The  par- 
ticularly offensive  part  of  his  speech  is  here  given.     He  said : 


History  of  the  Bench  and  Bar  of  California.  257 

'"Whom  have  we  opposed  to  us  ?  A  party  based  on  no  principles,  except 
the  abusing  of  one  section  of  the  country  and  the  aggrandizement  of  another; 
a  party  whose  principles  never  can  prevail  among  freemen  who  love  justice 
and  are  willing  to  do  justice.  What  other?  A  miserable  remnant  of  a  faction, 
sailing  under  false  colors,  trying  to  obtain  votes  under  false  pretenses.  They 
have  no  distinction ;  they  are  entitled  to  none.  They  are  the  followers  of 
one  man,  the  personal  chattels  of  a  single  individual,  whom  they  are  ashamed 
of.  Tliey  belong  heart  and  soul,  body  and  breeches  to  David  C.  Broderick. 
They  are  yet  ashamed  to  acknowledge  their  master,  and  are  calling  themselves, 
forsooth,  Douglas  Democrats,  when  it  is  known — well  known  to  them  as  to 
us — that  the  gallant  Senator  from  Illinois,  whose  voice  has  always  been  heard 
in  the  advocacy  of  Democratic  principles,  has  no  affiliation  with  them,  no  feel- 
ing in  common  with  them.  Perhaps,  Mr.  President  and  gentlemen.  I  am  mis- 
taken in  denying  their  right  to  claim  Douglas  as  their  leader ;  perhaps  they  do 
sail  under  the  flag  of  a  Douglas ;  but  it  is  the  banner  of  the  black  Douglass, 
whose  name  is   Frederick,  not   Stephen." 

These  were  the  words  of  the  Chief  Justice  of  the  Supreme  Court  of  the 
State,  the  dignity  of  whose  position,  his  friends  have  claimed,  weighed  heavily 
upon  him. 

The  speech  was  reported  in  the  Sacramento  Union,  a  newspaper  of  wide 
circulation,  on  the  morning  of  the  following  day,  from  which  it  appeared 
that  it  was  received  by  the  large  audience  with  great  applause  and  vociferous 
cheering. 

This  speech  was  the  first  immediate,  overt  offense  which  led  to  the  Terry- 
Broderick  duel. — a  fact  which  cannot  be  gainsaid  by  any  one  capable  of  draw- 
ing just  conclusions  from  given  causes,  though  Terry's  friends  and  admirers 
have  carefully  avoided  giving  any  importance  to  it  as  an  offense,  one  of  whom 
has  gone  so  far  as  to  justify  and  excuse  it,  as  clearly  within  the  pale  of 
legitimate  debate,  and  in  no  sense  censurable  as  a  reflection  against  Broderick. 
On  the  morning  of  the  26th  of  June,  Broderick,  while  at  the  breakfast 
table  of  the  International  Hotel,  in  San  Francisco,  read  the  speech  of  Terry 
as  it  appeared  in  the  Union  of  the  25th.  He  was  disturbed  and  angered,  and 
spoke  of  it  to  a  friend  next  him  at  the  table,  about  which  there  were  seated 
a  few  other  persons.  He  remarked  that  while  Terry  was  incarcerated  by  the 
vigilance  committee,  he  had  paid  two  hundred  dollars  a  week  to  support  a 
newspaper  to  defend  him,  and.  continued :  "I  have  said  I  considered  him  the 
only  honest  man  on  the  Supreme  bench,  but  I  now  take  it  all  back." 

Mr.  D.  W.  Perley,  a  former  law  partner  of  Terry,  happened  to  be  at  the 
table,  and  resented  the  words  of  Broderick,  who  cut  him  short  with  some  curt 
remark,  which  Perley  deemed  offensive  to  himself.  Perley  then  published 
his  version  of  what  Broderick  said,  which  he  endeavored  afterwards  to  have 
some  of  those  present  corroborate,  but  met  with  a  denial  by  them  of  the  truth 
of  his  story.  Perley  himself  challenged  Broderick  to  a  duel,  which  the  latter 
declined,  saying  at  the  time,  that  he  would  not  allow  himself  to  be  drawn  into 
an  affair  of  the  kind  while  the  campaign  then  inaugurated  should  continue,  in 
which  it  was  his  purpose  to  take  a  part. 

Both  Mr.  Broderick  and  Dr.  Gwin  took  the  stump,  and  the  war  of  crimi- 
nation and  recrimination  between  them  was  bitter  in  the  extreme,  and  it  was 
so  to  a  considerable  degree  between  the  leaders  of  the  two  wings  of  the  Demo- 
cratic party,  though  there  were  exceptions  to  this  mode  of  political  warfare. 

The  election  was  on  the  7th  of  September.  1859,  and  the  Lccompton  party 
won  a  decisive  victory.  Tliroughout  the  campaign  the  air  was  full  of  impre- 
cations and  threats  against  Broderick.  It  was  believed  by  his  enemies  that 
his  death  was  a  political  necessity,  and  that  it  must  be  accomplished,  if  not  by 
the  first  duel,  then  by  another  or  others  to  follow. 

On  the  day  after  the  election,  Terry,  accompanied  by  his  friends.  Or. 
Ashe  and  Dr.  Aylette,  on  the  8th  of  September,  proceeded  by  stage  from  Stock- 


258  History  of  the  Bench  and  Bar  of  California. 

ton  to  Oakland,  having  willi  him  the  pistols  which  were-  afterwards  used 
in  the  duel.  There  they  were  placed  in  charge  of  a  Texas  friend  of  Terry, 
and  thence  thej^  were  taken  to  the  field  of  the  conflict  which  followed.  The 
parties  agreed  as  to  the  language  used  by  Broderick  respecting  Terry,  which 
he  regarded  as  offensive  in  its  nature.  It  is  also  to  be  noticed  that  the  latter 
did  not  credit  the  story  of  his  friend  Perley.  as  to  what  Broderick  had  said 
at  the  breakfast  table.  Yet  Mr.  James  O'Meara.  after  all  this,  adopts  Perley's 
version  of  what  was  said  there,  and  deduces  therefrom  hi<  conclusions  that 
Broderick's   remarks   were   extremely   harsh   and    offensive.  ^ 

Terry's  friends  have  always  carefully  ignored  the  fact  that  his  speech 
before  the  convention  of  his  party  was  to  be  considered  as  forming  any  part  of 
the  controversy.  They  assume  that  the  remarks  made  by  Broderick  were  the 
first  offense,  and  have  given  to  them  an  interpretation  which  is  strained  to 
mean  that  Broderick's  words  were  an  imputation  against  the  judicial  integrity 
of  Judge  Terry,  which  could  be  atoned  for  only  by  abject  and  craven  humili- 
ation, or  I)y  blood. 

To  understand  the  merits  of  the  controversy  between  the  parties,  the 
order  of  events  should  be  carefully  observed,  from  which  it  appears  that  Terry 
was  the  first  to  give  ofifense.  In  his  speech  quoted,  he  charged  Broderick  and 
his  party  as  being  dishonest,  "sailing  tmder  false  colors  and  trying  to  obtain 
votes  under  false  pretenses";  and,  in  ribald  and  scornful  terms,  he  denominated 
the  anti-Lecompton  wing  of  the  Democratic  party  as  the  "personal  chattels  of 
a  single  individual,  whom  they  were  ashamed  of."  as  belonging  "heart  and  soul, 
body  and  breeches  to  David  C.  Broderick."  and  "yet  ashamed  to  acknowledge 
their   master." 

These  were  the  words,  not  of  a  black-guard  in  private  life,  but  of  the 
Chief  Justice  of  the  Supreme  Court  of  the  State.  They  not  only  applied  to 
the  individuals  of  the  party  of  which  Broderick  was  the  leader,  but  to  him 
personally,  in  a  most  offensive  sense,  as  a  master  of  whom  his  followers  were 
ashamed,  and  as  one  whom   they  contemned  and  despised. 

In  the  correspondence  between  the  parties,  it  appears  that  Broderick  re- 
ferred Terry  to  the  latter's  speech  as  the  cause  or  occasion  of  his  own  remarks 
respecting  him,  and  referred  him  to  the  record  of  that  speech  in  the  Sacramento 
Union  of  June  25th,  the  consideration  of  which  Judge  Terry  chose  to  disre- 
gard. Thus  it  appears  that  the  eviaence  touching  this  branch  of  the  contro- 
ver.sy  between  the  friends  of  Terry  and  the  friends  of  Broderick  is  of  the 
nature  of  record  evidence,  importing  absolute  verity.  Upon  this  evidence,  the 
questions    arise : 

First — Which  of  the  parties  was  the  first  to  give  offense? 

Second — Which  of  the  parties  was  in  honor  bound  to  apologize  and  make 
reparation   to  the  other? 

These  questions  being  answered,  the  ultimate  proposition  is.  Was  there 
any  just  ground  or  excuse  for  the  challenge  given  by  Terry  to  Broderick,  even 
according  to  the  principles  of  the  code  of  honor,  which  the  advocates  of  that 
.system  for  the  settlement  of  personal  quarrels  maintain  are  in  accord  with  the 
principles  of  honor,  justice,  and  equity? 

The  particularly  dramatic,  as  well  as  the  terribly  tragic,  part  of  the  affair, 
miscalled   an   "affair   of   honor,"    remains    to   be   told. 

At  the  time  the  correspondence  between  the  parties  was  opened,  the  physi- 
cal condition  of  Broderick.  was  most  unfavorable  for  the  barbarous  business 
upon  which  he  was  called  to  enter,  and  which  he  accepted.  This  was  owing 
to  the  extraordinary  mental  and  physical  strain  to  which  he  had  been  subjected 
in  the  Senate,  and  during  the  political  campaign  then  recently  closed.  On  the 
other  hand,  Terry  seemed  well  prepared  by  assiduous  training  for  the  work 
which  he  had  had  in  anticipation  for  more  than  two  months. 

PiOth  were  men  of  great  physical  strength,  and  both  of  strong  mental  force; 
but   neither  of  them  was  of  high  educational  attainments,  nor  of  nnich   culture. 


History  of  the  Bench  and  Bar  of  California.  259 

Broderick  was  known  as  a  man  of  positive  traits  and  giant  will.  He  was  a 
natural  leader  of  men.  Terry  was  known  as  a  man  of  strong  prejudices  and 
bitter  animosities.  He  believed  in  enforcing  obedience  to  his  will  by  force  of 
arms.  He  was  a  natural  and  typical  leader  of  the  particular  class  to  which 
he  belonged.  He  believed  in  the  code  as  an  appropriate  means  for  the  settle- 
ment of  private  quarrels.  Broderick  recognized  its  obligations,  in  deference 
to  the  prevailing  sentiment  of  the  time. 

In  Terry's  first  letter  to  Broderick  he  said  at  its  close,  "This  note  will  be 
handed  you  by  my  friend,  Calhoun  Benham,  Esq.,  who  is  acquainted  with  its 
contents  and  will  receive  your  reply."  Benham  delivered  the  letter  on  the  even- 
ing of  the  day  of  its  date,  when  Broderick  remarked  that  he  would  give  it 
attention  the  next  day.  Benham  urged  more  prompt  action,  and  from  that 
time  the  correspondence  proceeded  at  double-quick  speed  until  its  conclusion. 
On  the  part  of  Terry  and  Benham,  the  object  seemed  to  be  to  keep  Broderick 
under  whip  and  spur  until  the  work  in  hand  should  be  fully  accomplished. 
Terry's  letter,  tendering  a  challenge,  was  delivered  by  Benham  to  Broderick 
about  one  o'clock  in  the  morning  of  the  loth  of  September.  To  eflfect  the  serv- 
ice of  the  challenge  at  this  dead  hour  of  the  night,  Benham  waited  on  Brod- 
erick's  friends  at  the  Union  Hotel,  on  Kearny  street,  opposite  Portsmouth 
Square,  in  San  Francisco.  Broderick  was  then  at  the  house  of  his  friend,  Leon- 
idas  Haskell,  at  Black  Point,  a  full  mile  and  a  half  away,  where  he  had  gone  to 
obtain  a  comfortable  rest  for  the  night.  Benham,  by  persistent  urging,  induced 
Broderick's  polite  and  accommodating  friends  to  have  him  aroused  from  his 
sleep,  for  the  purpose  of  coming  to  the  city  on  business  of  urgent  importance. 
Broderick  was  accordingly  informed  of  the  necessity  of  his  immediate  appear- 
ance at  the  place  appointed,  and  came  over  the  hills  to  the  city.  On  his  way 
down  Jackson  street  near  Stockton  street,  he  was  met  by  Benham,  who  delivered 
to  him  Terry's  challenge,  Broderick  soon  reached  the  hotel  and  there  found  his 
friends  awaiting  his  coming.  He  was  vexed  and  annoyed  in  that  they  had 
allowed  him  to  be  disturbed  and  broken  of  his  rest,  of  which  he  was  sadly  in 
need.  By  his  letter  accepting  the  challenge,  Broderick  stated  the  hour  when  it 
was  received  by  him  to  be  one  o'clock  in  the  morning. 

The  challenge  having  been  given  and  accepted,  a  time  and  place  were 
appointed  for  the  hostile  meeting.  The  I2th  of  September  was  the  day  named. 
The  place  designated  was  in  San  Mateo  county,  near  the  boundary  line  between 
that  county  and  San  Francisco,  not  far  from  Laguna  de  la  Merced.  The  prin- 
cipals, with  their  seconds,  surgeons  and  friends,  were  on  the  ground  at  an 
early  hour  in  the  morning.  The  chief  of  police  of  San  Francisco,  armed  with 
a  warrant,  duly  endorsed  by  a  magistrate  of  San  Mateo,  appeared  in  due  time 
and  placed  the  principals  under  arrest.  They  appeared  before  the  police  court 
on  the  same  day,  and,  being  discharged,  arranged  for  a  meeting  on  the  day 
following.  They  met  early  in  the  morning  on  the  13th  of  the  same  month,  at 
a  spot  near  the  place  of  their  meeting  the  day  before.  The  respective  princi- 
pals were  accompanied  by  their  seconds,  surgeons  and  friends,  and  others 
curious  to  witness  the  conflict,  amounting  in  all  to  about  seventy. 

Terry's  seconds  were  Calhoun  Benham,  Thomas  Hayes  and  Samuel  H. 
Brooks.  Broderick's  seconds  were  Joseph  C.  McKibbcn,  David  D.  Colton,  and 
Leonidas  Haskell.  Terry  and  his  seconds  brought  with  them  the  "Jo  Beard 
pistols,"  which  at  that  time  were  called  the  "Aylette  pistols."  At  the  same  time 
there  appeared  on  the  ground  a  gunsmith  of  San  Francisco,  with  a  pair  of 
duelling  pistols,  his  own  property.  The  gunsmith  had  been  employed,  by  the 
mutual  agreement  of  the  parties,  as  armorer  for  the  occasion.  Mr.  O'Meara 
and  also  Mr.  Samuel  H.  Brooks,  in  his  account  of  the  duel,  recently  published 
in  a  San  Francisco  newspaper,  speak  of  "Natchez,"  whose  real  name  was 
Andrew  J.  Taylor,  as  the  armorer  who  was  on  the  ground  of  the  hostile  meet- 


260  History  of  the  Bench  and  Bar  of  California. 

ing.  In  this  they  are  both  in  error.  The  armorer's  name  was  Bernard  Le- 
gardo.     At  that  time  Natchez  had  been  dead  nearly  a  year.* 

It  is  not  true,  as  Mr.  O'Meara  says,  that  Broderick's  seconds  brought  with 
them  a  pair  of  duelJing  pistols.  They  had  agreed  with  Terry's  seconds  upon 
the  armorer,  and  they  relied  upon  him  for  suitable  duelling  pistols. 

In  the  preliminary  arrangements  of  the  parties,  they  cast  lots  for  the 
choice  of  pistols.  The  choice  fell  to  the  side  of  Terry,  who  chose  the  "Aylette 
pistols,"  and  his  seconds  selected  the  one  of  the  pair  which  they  desired  for 
his  use.  and  handed  the  other  to  the  seconds  of  Broderick.  The  armorer,  Le- 
gardo,  examined  them  and  pronounced  them  in  good  order,  except  that  they 
were  too  light  and  delicate  on  the  triggers,  of  which  fact  he  informed  all  the 
seconds,  and  told  one  of  the  seconds  of  Terry  that  the  one  for  Broderick  was 
lighter  than  the  other.  The  armorer  so  testified  at  the  coroner's  inquest  upon 
the  dead  body  of  Mr.  Broderick,  and  he  further  testified  that  the  pistol  for 
Broderick's  use  was  so  delicate  that  it  would  explode  by  a  sudden  jar  or  jerk. 
The  armorer  asked  McKibben  why  he  did  not  force  on  his  principal  hi--  (the 
armorer's)  pistols,  to  which  McKibben  replied  that  Terry  had  won  the  choice 
of  weapons.  The  armorer  then  loaded  the  pistol  to  be  used  by  Broderick.  and 
Mr.  Brooks  loaded  the  one  selected  for  Terry,  which  was  delivered  to  him.  and 
the  one  for  Broderick  was  delivered  to  him.  who,  upon  receiving  it.  anxiously 
examined  it.  turning  it  about,  scrutinizing  it  and  measuring  its  stock  with 
his  hand. 

In  Mr.  Oscar  T.  Shuck's  sketch  of  David  S.  Terry,  in  "Bench  and  Bar 
in  California"  (A.  D.  1889).  he  gives  the  statement  of  an  eye-witness  to  the 
bloody  affair,  written  only  a  short  time  thereafter.  This  eye-witness  said: 
"Mr.  Broderick  seemed  to  know  the  importance  of  the  issue,  and  seemed  nerved 
to  meet  it.  Up  to  the  time  the  pistol  was  handed  him,  he  appeared  the  cooler 
and  more  collected  of  the  two.  But  after  examining  the  pistol  he  seemed  to 
become  uneasy.  He  betrayed  nothing  like  lack  of  courage,  but  in  measuring 
the  stock  of  the  pistol  with  the  conformation  of  his  hand,  he  presented  to  the 
observer  an  unsatisfied  appearance.  This  was  shown  by  more  than  one  move- 
ment." And  the  same  witness  said :  "All  agreed  that  his  personal  bravery 
was  patent.  There  was  no  weakening,  but  there  was  an  anxious  solicitude  in 
his  deportment  that  placed  him  at  a  great  disadvantage."  Even  after  the 
words,  "Gentlemen,  are  you  ready?"  were  pronounced,  and  Terry  had  responded 
"Ready,"  Broderick  spent  several  seconds  in  examining  the  stock  of  his  pistol, 
which  did  not  .seem  to  fit  his  hand,  and  then  he  answered  "Ready,"  with  a  nod 
to  his  second.  General  Colton,  who  had  announced  in  the  beginning,  "Gentle- 
men, are  you  ready?" — and  then  followed  the  words,  "Fire — one — two,"  in  the 
measured  strokes  of  the  Cathedral  clock.  Broderick  fired  first,  as  the  word 
"one"  was  pronounced.  Terry's  shot  followed  at  the  point  of  time  the  word 
"two"  was  commenced  utterance.  Broderick's  shot  was  spent  in  the  ground 
some  four  or  five  yards  in  advance  of  him,  in  a  direct  line  between  him  and 
his  adversary.  Terry's  shot  took  effect  in  Broderick's  right  breast,  producing 
a  mortal  wound,  from  which  he  died  three  days  afterwards.* 

Upon  receiving  the  pistol  selected  for  him,  and  loaded  for  use  by  his  friend, 
Brooks,  Terry  seemed  composed,  resting  it  upon  his  left  hand  as  he  held  it 
with  the  other.  He  exhibited  no  concern  as  to  its  stock,  formation,  or  shooting 
qualities.     Until   it  was  definitely  settled   that  he  had   secured   for  his  use  the 


*  "Natchez  had  been  armorer  at  the  fatal  duel  between  Hon.  Geo.  Pen. 
Johnston  and  Hon.  Wm.  I.  Ferguson,  at  Angel  Island,  San  Francisco  bay,  Aug- 
ust 2ist,  1858.     He   shot   himself  in   his   shooting  gallery. 

*  The  correspondent  of  a  New  York  paper  narrated  that  as  soon  as  Brod- 
erick fell,  the  owner  of  the  ranch,  who  had  been  silently  regarding  the  pro- 
ceedings, started  to  his  feet  and  shouted,  "That  is  murder,  by  God  !"  He  moved 
toward  Terry,  as  though  intending  to  assault  him.  He  was  intercepted  by 
by-standers.  who  said  that  it  was  folly  to  provoke  additional  bloodshed.     He 


History  of  the  Bench  and  Bar  of  California.  261 

pistol  of  stronger  trigger,  the  same  witness  said  "he  seemed  agitated,  and 
measured  the  ground  in  his  direction  with  an  uneasy  and  anxious  tread."  But 
with  his  chosen  pistol  in  hand,  and  the  extremely  delicate  and  dangerous  one 
in  the  hands  of  his  opponent,  he  took  his  position  with  firmness  and  com- 
posure, watching  every  movement  and  expression  of  his  adversary. 

From  the  beginning  of  the  correspondence  until  Broderick  fell  mortally 
wounded,  the  conduct  of  the  Terry  party  was  distinguished  by  an  intensely 
earnest  and  fiercely  aggressive  spirit,  which  showed  them  bent  on  winning  the 
fight  at  all  hazards.  The  deportment  of  Terry's  seconds  on  the  ground  was 
determined,  bold,  and  confident,  which  was  in  marked  contrast  with  the  respect 
ful  and  deferential  deportment  of  Broderick's  friends,  in  the  presence  of  thei. 
adversaries. 

When  the  respective  principals  had  taken  their  positions,  as  yet  unarmed, 
they  were  each  subjected  to  the  customary  examination  of  their  persons  for 
concealed  armor.  McKibben's  office  was  to  examine  Terry,  and  that  of  Ben- 
ham  to  examine  Broderick.  Each  of  these  seconds  proceeded  to  the  examina- 
tion. McKibben  approached  Terry  in  a  gentle  and  respectful  manner,  pressed 
the  back  of  his  hand  against  the  latter's  breast,  and  then  fell  back  with  a  courtly 
bow  and  a  wave  of  his  hand.  At  the  same  time,  Benham  was  manipulating 
and  searching  Broderick  up  and  down  his  person,  as  if  he  verily  believed  he 
had  upon  him  an  impenetrable  coat  of  mail.  Broderick  was  greatly  disturbed 
by  Benham's  conduct,  and  indignantly  said  to  a  friend  near  him  that  Benhapi 
had  treated  him  as  an  officer  would  search  a  thief  for  stolen  property.  The 
contrast  between  the  conduct  of  McKibben  and  that  of  Benham  was  so  marked 
as  to  attract  the  notice  of  those  present.  Broderick's  friends  felt  indignant 
as  they  saw  him  thus  openly  insulted,  and  those  of  them  still  living  well  remem- 
ber it  to  this  day.  Tlie  examination  of  Broderick's  person  being  finished, 
Benham  stepped  to  the  position  of  his  principal,  and,  covering  the  side  of  his 
mouth  with  his  hand,  whispered  in  Terry's  ear,  which  the  latter  seemingly 
acknowledged  with  an  approving  smile.  Some  time  after  all  this,  Benham 
acknowledged  to  a  friend  of  Broderick,  who  took  exception  to  his  conduct  and 
mode  of  examination,  that  it  was  not  courteous,  but  excused  himself  on  the 
ground  that  his  principal's  life  was  in  his  keeping,  and  he  was  bound  to  do 
whatever  was  necessary  to  protect  him. 

It  cannot  be  reasonably  claimed  that  there  could  be  any  advantage  on 
the  side  of  Terry  in  that  he  nad  the  choice  of  pistols,  provided  they  were 
ordinary  duelling  pistols  and  in  all  respects  alike,  and  equally  unknown  to 
both  parties. 

It  is  said  by  those  who  have  seen  these  Aylette  pistols  that  in  stock  or 
breech  construction  they  are  unlike  ordinary  duelling  pistols,  and  the  manner 
in  which  Broderick  scrutinized  and  handled  the  one  given  him,  and  his  efforts 
to  fit  his  hand  to  it,  was  evidence  that  he  was  wholly  unacquainted  with  it. 
On  the  other  hand,  the  manner  of  Terry  in  respect  to  the  pistol  provided  for 
his  service,  and  his  quiet  unconcern  as  to  it  and  its  shooting  qualities,  was  evi- 
dence that  he  was  acquainted  with  both  of  them. 

It  is  susceptible  of  proof  that,  only  a  short  time  before  the  Terry-Broderick 
duel  was  fought,  Terry  and  Dr.  Aylette  repaired  to  the  place  of  a  farmer  in 
San  Joaquin  county,  where  they  practiced   shooting  at  a  mark  with   the  pistols 

brushed  them  aside,  exclaiming,  "1  am  not  going  to  see  him  killed  in  that  way. 
If  you  are  men,  you  will  join  me  in  avenging  his  death!" 

"We  know  you  are  Mr.  Broderick's  friend,  but  we  know  as  well  that  if 
you  attack  Terry  there  will  be  a  general  fight,  and  but  few  will  get  off"  this 
groimd  alive.     Think  a  moment  before  you  do  this  thing." 

Luckily,  this  scene  was  not  witnessed,  nor  the  remarks  overheard,  by  any 
of  theTerry  partisans,  else  there  would  have  been  a  bloody  conflict,  whether' their 
leader  had  been  attacked  or  not.  The  milkman  was  quieted  and  sat  himself 
down,   breathing   thrcatcnings   of   slaughter. — liPITOR. 


262  History  of  the  Bench  and  Bar  of  California. 

in  question.  Charles  C.  Knox,  for  many  years  a  business  man  in  Sacramento, 
states  that  Terry  had  in  his  possession  the  same  pistols  while  a  Justice  of  the 
Supreme  Court,  at  the  State  Capitol,  and  he  further  says  that  a  few  days 
before  the  Terry-Broderick  duel,  he  was  at  Haywards,  in  Alameda  county,  and 
while  there  the  stage-coach  arrived  on  its  way  from  Stockton  to  Oakland,  with 
Terry,  Dr.  Ashe  and  Dr.  Aylette  as  passengers.  At  Haywards  they  were  met 
by  a  large  number  of  their  friends,  who  had  come  in  several  carriages  from 
Oakland,  to  whom  Terry  and  his  traveling  companions  exhibited  the  Aylette 
pistols,  and  then  they  were  given  in  charge  of  some  one  or  more  of  their  Oak- 
land friends.  Mr.  Knox  .says  Mr.  Hayward,  the  landlord  of  the  place  bearing 
his  name  asked  him:     "What  is  up  that  brings  together  such  a  lot  of  Chivs?" 

Dr.  Washington  M.  Ryer,  a  practicing  physician  at  Stockton  in  early  times, 
says  Terry  was  in  the  habit  of  practicing  with  the  .A^ylette  pistols  at  his  place 
in  Stockton,  in   1857. 

The  evidence  already  produced  more  than  tends  to  show  that  Terry  was 
well  acquainted  with  the  Aylette  pistols,  by  frequent  use  of  them  before  they 
were  brought  into  requisition  on  the  field  of  the  conflict.  Upon  this  point  it 
may  be  said  the  evidence  is  substantially  conclusive. 

From  what  the  gunsmith  testified  before  the  coroner's  jury,  there  is  no 
doubt  respecting  the  dangerous  character  of  the  weapons,  and  especially  of 
the  one  appointed  to  the  lot  of  Broderick. 

This  account  of  the  gunsmith  was  confirmed  by  what  Mr.  Broderick  said 
on   his  dying  bed,  as  appears   further  on. 

Mr.  O'Meara  says  the  pistols  in  question  had  been  used,  before  the  Terry- 
Broderick  duel,  in  several  affairs  of  honor:  "that  they  were  so  exactly  alike 
in  every  respect  that  no  difference  had  ever  been  discovered  in  their  shooting 
qualities.     They   had   hair-triggers,    evenly   and   equally   adjusted." 

The  phrase,  "their  shooting  qualities."  is  ambiguous.  That  their  hair- 
triggers  were  evenly  and  equally  adjusted  is  not  sustained  by  the  established 
facts.  It  is  quite  certain  they  were  not  evenly  and  equally  adjusted  on  the 
morning  when  used  by  the  two  principals  named. 

The  next  day  after  the  duel  transpired,  the  pistol  which  fell  to  the  lot  of 
Broderick  came  into  the  possession  of  the  captain  of  the  detective  force  of  the 
police  department  of  San  Francisco,  who  experimented  with  it  for  the  purpose 
of  testing  its  alleged  trigger  infirmity.  By  a  simple  experiment,  he  demonstrated 
its  extremely  dangerous  character  in  the  hands  of  any  one  unaware  of  its 
eccentricity.  With  the  hammer  of  the  lock  set,  he  caused  it  to  spring  by  blow- 
ing vigorously  from  his  mouth  against  the  trigger.  The  success  of  the  experi- 
ment was  known  at  the  time,  and  can  now  be  proved  by  the  captain  himself, 
who  is  still  in  the  possession  and  enjoyment  of  a  strong  and  retentive  memory.* 

A  few  years  before  his  death,  Jo  Beard,  who  at  one  time  owned  these 
pistols,  told  his  friend,  Frederick  H.  Waterman,  of  San  Francisco,  that  there 
was  something  peculiar  about  these  pistols — that  they  were  not  alike — that  one 
of  them  was  tricky,  but  the  other  was  a  lucky  pistol  that  always  killed.  Jo 
Beard  was  a  personal  friend  of  Terry,  in  full  sympathy  with  his  pro-slavery 
views. t 

The  same  pistols  were  used  in  the  duel  between  Dr.  Washington  M.  Ryer 
and  Dr.  Samuel  Langdon,  which  occurred  at  Stockton,  in  i(S57.  Dr.  Langdon, 
the  challenged  party,  chose  the  Aylette  pistols  for  the  conflict.  Each  took  one 
of  them  for  the  purpose  of  preparing  in  advance  for  the  duel.  Dr.  Langdon 
selected  for  his  use  the  weapon  of  stronger  trigger.  Dr.  Ryer  was  then  ignor- 
ant  of   the   difference    between    them.     In    practicing    with    the    one    that    came 


*  He  has  since  been  chief  of  police,  and  still  lives  in  San  Francisco. 

—EDITOR. 

t  Joseph  R.   Beard  was  clerk  of  the  Supreme  Court  during  the  years   1H55- 
56.     He  died  in  San  Francisco,  March  17,  18S7.— EDITOR. 


History  of  the  Bench  and  Bar  of  California.  263 

to  his  hands  he  discovered  its  tricky  character,  but,  with  all  his  care  in  guarding 
against  its  eccentric  characteristics,  he  was  unable  to  fully  overcome  it.  After- 
wards, on  the  field,  he  said  that,  with  all  his  caution,  he  was  not  able  to  bripig 
his  pistol  to  a  horizontal  position  before  it  became  discharged.  At  the  third 
round  he  succeeded  in  raising  it  as  high  as  the  knee  of  his  adversary,  in  which 
his  third  shot  took  effect,  and  so  ended  that  duel.  Dr.  Ryer  says  that  during 
the  exchange  of  shots,  the  bullets  from  the  pistol  of  Dr.  Langdon  whizzed 
unpleasantly  past  his  ear,  thus  showing  that  the  latter's  pistol  was  not  afflicted 
with   the   infirmity  peculiar  to  his   own. 

Elliot  J.  Moore,  for  the  last  forty  years  a  resident  of  San  Francisco,  a 
lawyer  of  highly  reputable  standing,  and  in  early  times  a  state  senator  of 
admitted  intelligence  and  integrity,  was  an  intimate  friend  of  Broderick,  and 
was  with  him  when  the  duel  took  place.*  He  remembers  the  incidents  of  that 
bloody  affair  with  a  vividness  which  the  laose  of  time  can  never  efface.  He 
says  that  when  the  seconds  of  the  respective  principals,  and  others  with  them, 
were  huddled  together  selecting  pistols,  he  and  Broderick  were  together  some 
distance  away.  When  Broderick  became  apprised  of  the  fact  that  Terry's 
seconds  had  brought  to  the  ground  a  pair  of  duelling  pistols,  and  that  the 
seconds  of  the  two  principals  were  then  engaged  in  casting  lots  for  the  choice 
of  weapons,  he  seemed  uneasy  and  expressed  himself  as  not  being  able  to 
understand  how  it  was  that  the  armorer,  selected  by  mutual  consent  of  the 
parties,  and  then  standing  apart,  was  not  consulted,  but  seemed  to  be  entirely 
ignored.  Broderick  had  supposed  the  armorer  was  to  nrovide  the  weapons 
for  the  occasion.  He  complained  of  the  inefficiency  of  his  seconds,  who,  he 
had  become  convinced,  were  not  the  equals  of  the  seconds  of  his  adversary. 
He  spoke  of  them  as  children,  and  expressed  apprehensions  lest  they  might 
unwittingly  "trade  awav  his  life." 

It  is  evident  that  Broderick  was  not  aware  of  Terry's  acquaintance  by 
practice  with  the  pistols  prior  to  the  duel.  The  outspoken  suspicions  on  the 
subject  were  withheld  from  him  when  on  his  dying  bed.  His  experience  with 
the  weapon  placed  in  his  hands  was  to  him  a  surprise  and  disappointment;  for, 
while  conscious  that  he  could  not  recover,  he  told  his  friend,  Moore,  that  he 
did  not  touch  the  trigger  of  the  pistol  as  he  raised  it,  but  that  the  sudden 
movement  in  raising  it  caused  it  to  explode  before  it  was  brought  to  a  level. 

Jo  Beard's  confession,  the  gunsmith's  testimony,  Dr.  Ryer's,  statement 
Broderick's  dying  declaration,  and  the  detective  captain's  experiment,  well 
establish  the  anomalous  trigger  qualities  of  the  weapons,  especially,  as  to  the 
one  assigned  to  Broderick.  In  addition  to  this  direct  proof  are  the  circum- 
stances of  the  production  and  selection  by  Terry  and  his  friends  of  their 
favorite  and  cherished  weapons,  and  their  extreme  care  to  secure  the  safer 
one   for  his  use. 

Terry's  friend,  Mr.  O'Meara,  states  the  fact  to  be  that  the  respective  parties 
mutually  agreed  upon  the  employment  of  the  gunsmith  as  armorer  for  the 
Terry-Broderick  duel.  Of  this  fact  there  seems  no  reason  for  doubt.  But  on 
the  ground,  the  armorer  was  required  to  stand  aside,  except  that  he  was  allowed 
to  examine  the  pistols  chosen,  and  to  load  the  one  handed  over  by  Terry's 
seconds    for    Broderick's    use. 

Colonel  William  W.  Gift  was  a  democrat,  reared  in  Tennessee  under  the 
immediate  influence  of  General  Andrew  Jackson.  He  was  widely  known  in 
California  for  his  peculiar  and  forcible  modes  of  expressing  his  opinions 
Immediately  after  Broderick  was  shot  down,  he  gave  vent  to  his  indignation, 
and  denoimced  in  strong  language  the  management  of  the  Terry  party  in  their 
introduction  and  selection  of  the  pistols  in  question  for  the  purposes  of  the 
duel.     He  declared  that  Terry  had   told   him  that  he  himself  owned  the  pistols. 


*  Mr.  Moore,  who  died  after  this  was  written,  was  a  Southern  man. 

—EDITOR. 


264  History  of  the  Bench  and  Bar  of  California. 

Colonel  Gift  was  a  believer  in  the  code,  but  regarded  it  as  a  system  which 
required  fair  and  equal  dealing  between  parties  engaged  in  "affairs  of  honor." 

The  evidence  relating  to  the  point  under  consideration  is  both  direct  and 
circumstantial,  and  from  it  the  conclusion  follows  in  logical  sequence. 

The  great  and  fatal  mistake  of  Broderick's  seconds  was  in  submitting  to 
a  negotiation  which  opened  the  door  to  the  selection  of  any  pistols  not  pro- 
vided by  the  armorer,  upon  whom  the  respective  parties  had  mutually  agreed 
for  the  purpose.  The  arrangement  to  that  effect  operated  to  set  aside  the 
agreement  mutually  entered  into  to  employ  the  gunsmith.  Legardo,  for  the 
office  of  armorer.  The  death  of  Mr.  Broderick.  it  is  believed  by  many,  was  the 
consequence  of  this   fatal   mistake. 

By  persistent  asservations,  made  in  the  face  of  the  evidence  to  the  con- 
trary, the  duel  has  been  represented  as  fair  and  equal  in  all  respects,  and  Brod- 
erick's seconds  have  contributed  their  full  share  to  so  represent  it.  Perhaps 
they  thought  so ;  but  Broderick's  friends  have  ever,  with  great  unanimitv. 
thought  otherwise. 

The  personal  treatment  of  Broderick  from  the  beginning  to  the  end  by 
his  antagonist,  and  his  second,  Benham,  in  arousing  him  from  his  sleep  at  the 
house  of  his  friend  at  the  dead  hour  of  the  night,  and  the  mode  and  manner 
of  the  examination  of  his  person  on  the  field  of  the  conflict,  seemed  designed 
to  worry  and  wear  him  out,  and  to  unnerve  and  unfit  him  for  the  ordeal  in 
prospect.  Added  to  such  treatment,  the  introduction  on  the  ground  of  the 
Aylette  pistols,  and  their  selection  and  distribution  for  the  work  in  hand,  made 
sure  of  Broderick's  discomfiture  and  death. 

THE  EDITOR. 


LYNCH  LAW   IN 
CALIFORNIA 


•By  JOHN  G.  JURY 


John  G.  Jury 


■isufe  (fe  (5a  &  (&I&  (^  dSb  t^a^ 


HISTORY  of  the 
BENCH  and  BAR 
of  CALIFORNIA 


^  op  (^  3^  ejr.  ejp  b^^.  eg.  cja  e;^. 


LYNCH  LAW  in  CALIFORNL\ 


"Out  of  this  nettle,  danger,  we  pluck  this  flower,  safety." 

— Shakespeare. 

"All  eye  for  an  eye;  a  tooth  for  a  tooth;  a  Hfe  for  a  hfe."  Such  is  the  law 
that  first  possesses  the  soul  filled  with  a  sense  of  outrage  and  frenzied  with 
passion.  "Whoso  sheddeth  man's  blood,  by  man  shall  his  blood  be  shed," 
is  the  Scriptural  canon  behind  which  vengeance  has  retreated  since  the  days 
of  the  patriarchs.  In  no  era  of  the  world's  history,  it  may  be  said,  has  action 
upon  these  primitive  laws  been  more  fervently  upheld,  than  during  the  first 
decade  of  California's  history  as  a  State. 

Attracted  by  the  discovery  of  gold,  men  from  all  quarters  of  the  globe 
flocked  to  California.  Every  moral,  social  and  intellectual  stage  of  society 
was  represented  in  the  mining  camps  of  the  State.  Lawyers,  physicians, 
clergymen,  farmers,  merchants  and  laborers  in  all  fields  of  industry,  left  their 
homes  for  that  land  whose  very  name  had  suddenly  become  in  all  the  earth,  a 
synonym  for  opportunity  and  fortune. 

An  exodus  into  newly  discovered  fields,  that  offer  wealth  as  the  prize  for 
hardship,  is  proverbially  composed  of  all  sorts  and  conditions  of  men.  The 
industrious  and  the  ambitious  see  in  such  a  country  the  occasion  for  exercise 
of  great  physical,  moral  and  intellectual  vigor;  the  despairing  are  stimulated 
to  new  endeavors;  the  hopes  of  the  down-trodden  are  revived;  and  the  greed 
of  the  desperate  and  the  vicious  is  inflamed.  Thus  the  common  love  for 
wealth  and  power  may  be  aroused  either  to  encourage  or  to  curse. 

And  so  in  California  in  early  days,  men  of  widely  divergent  types,  pos- 
sessed of  radically  different  ideals,  struggled  side  by  side,  having  but  one 
aim  in  common,  the  desire  to  acf|uire  a  fortune.  An  outcast  from  a  foreign 
criminal  colony  might  occupy  the  same  room,  eat  at  the  same  table,  labor  at 
the  same  vocation,  and  join  in  the  same  pastimes,  with  a  young  man  who  had 
come  from  one  of  the  most  refined  homes  in  the  East.  This  commingling  of 
men,  irrespective  of  education  and  of  former  habits  of  Hfe,  while  affording 


268  History  of  the  Bench  and  Bar  of  California. 

much  of  romance,  could  not  but  result  occasionally  in  great  and  unexpected 
tragedies.  Time  must,  where  such  conditions  exist,  be  depended  upon  to 
reveal  the  true  differences  between  men,  and  the  ardor  of  the  people  in  early 
California  served  to  bring  about  rapid  and  startling  revelations  in  this  respect. 
As  a  young  pioneer  from  Missouri  once  said,  "If  a  man  has  a  mean  streak 
about  a  half  an  inch  long,  I'll  be  bound  if  it  don't  come  out  on  the  plains." 
The  prevailing  crudeness  of  life,  the  insecurity  of  tenure  of  valuable  land 
rights,  the  prevalence  of  saloons,  and  the  absence  of  women  in  the  camps, 
tended,  also,  toward  the  encouragement  of  lawlessness  and  crime. 

It  is  not  to  be  expected  that  out  of  such  a  chaos  of  conditions,  the  swift 
and  ever  axailable  measures  of  vengeance  should  not  have  occasionally  been 
brought  into  use  for  the  purpose  of  redressing  great  and  execrable  wrongs. 
The  very  exigencies  of  the  times  often  demanded  harsh  and  unusual  meas- 
ures. The  machinery  of  the  law  was  either  unorganized,  or  lamentably 
imperfect,  in  those  localities  where  there  was  most  need  for  the  service  of 
the  law.  The  customary  restraints,  which  in  long  established  and  well 
organized  communities,  insure  safety  and  order,  were,  for  the  time  being, 
greatly  weakened,  and,  apparently,  in  times  of  great  popular  passion,  almost 
entirely  absent.  Family  pride  and  social  prestige  were  at  first  little  thought 
of,  for  the  reason  that  most  of  the  earlv  comers  to  the  State  regarded  them- 
selves as  little  more  than  sojourners  in  a  distant  and  foreign  land. 

The  pioneers  in  California  were  for  the  most  part  a  law-creating  and  law- 
abiding  people.  Their  sturdy  independence,  their  virile  hatred  of  crime  in 
all  its  forms,  and  the  habit  they  had  cultivated  of  accomplishing  things  effect- 
ively, prompted  the  occasional  use  of  ill-considered,  and  in  particular  instances 
it  may  be,  of  barbarous  methods,  in  dealing  with  the  criminal  classes.  No 
definite  lines  of  demarcation  can  be  traced  between  the  various  systems  or 
measures  devised  by  the  pioneers  for  their  government  and  protection.  All 
conceivable  gradations  of  justice  existed,  from  the  substantially  fair  and 
humane,  to  the  most  violent  and  fiendish  in  character.  The  particular  quality 
of  any  special  form  of  law  is  not,  of  course,  revealed  in  its  name.  The 
term  "lynch  law"  was  seldom  used  because  of  the  disrepute  into  which  the 
term  had  fallen.  The  less  harsh  terms,  such  as  "Miners'  law."  "Vigilance 
Committees,"  "Regulators,"  "Committees  of  Safety,"  etc.,  served  to  denomi- 
nate the  work  of  punishing  offenders  through  the  power  of  the  people  directly 
administered. 

Some  writers,  however,  have  drawn  a  distinction  between  miners'  law 
and  lynch  law.  Mr.  Shinn,  for  instance,  in  his  work,  "Mining  Camps,"  (page 
230),  says:  "Lynch  law,  as  we  know  it,  through  certain  too  familiar  news- 
])aper  items  from  a  number  of  rural  districts  in  our  South  and  West,  is  sudden 
in  its  action,  creates  no  true  precedents,  keeps  no  records,  shuns  the  light, 
conceals  the  names  of  its  ministers,  is  generally  carried  out  in  the  night  by 
a  perfectly  transient  mob,  expresses  only  popular  passion,  and  is.  in  fine,  essen- 


History  of  the  Bench  and  Bar  of  California.  269 

tially  disorderly.  Miners'  law  was  open  in  its  methods,  liked  regularity  of 
procedure,  gave  the  accused  a  fair  chance  to  defend  himself,  was  carried  out 
in  broad  daylight,  and  by  men  puljlicly  chosen ;  and  when  State  and  county 
organizations  were  sufficiently  developed  to  take  its  place,  it  gladly  resigned 
its  sceptre  to  the  regular  officers  of  the  law." 

It  is  evident  that  a  better  test,  than  that  given  by  Mr.  Shinn  in  the  extract 
quoted  above,  must  be  applied  to  uncover  the  differences  between  lynch  law 
and  those  forms  to  which  lynch  law  is  opposed.  Consideration  must  be  given 
in  this  connection  to  the  special  conditions  existing  in  each  community;  the 
temper  of  its  citizens;  and  its  special 'rules  and  customs  in  the  absence  of  any 
settled  laws.  It  is,  indeed,  doubtful  whether  miners'  law,  as  defined  by  Mr. 
Shinn.  can  stand  the  test  he  himself  applies.  That  the  difference  between 
miners'  law  and  lynch  law  is  unsubstantial  may  be  shown  by  reference  to  the 
miners'  attitude  respecting  the  settlement  of  land  disputes.  The  crude  sense 
of  justice  in  the  rough,  self-reliant  and  honest  miner  prompted  him  to  rebel 
against  what  was  conceived  to  be  the  incursions  and  interferences  of  State 
and  national  laws  and  regulations.  The  miner's  first  impulse  was  to  act  for 
himself,  irrespective  of  legislation,  imposing  the  observance  of  certain  formali- 
ties in  acquiring  mineral  lands.  In  this,  as  in  other  matters,  a  bona  fide  com- 
pliance with  the  spirit  of  the  laws,  and  substantial  adherence  to  the  customs 
of  the  camp,  were  sufficient  to  justify  him  in  defending  his  land  with  his  life 
if  necessary. 

The  self-reliance  and  spontaneity  of  the  pioneer  miner  sprang  into  boldest 
relief,  however,  when,  under  the  general  excitement  following  the  commission 
of  some  atrocious  crime,  punishment  must  be  devised  and  meted  out  to  the 
offender.  Miners'  law,  vigilance  law,  and  their  kindred  forms,  then  revealed 
their  true  character.  All  such  methods  of  dispensing  justice,  or  of  avenging 
wrongs,  which  are  under  the  control  of  an  unauthorized  or  self-appointed 
body  of  men,  and  dependent  upon  their  judgment,  whims  and  caprices,  possess 
in  reality  the  essential  elements  of  lynch  law.  While  many  and  perhaps  the 
majority  of  vigilance  and  miners'  trials,  were  orderly,  and  resulted  in 
visiting  upon  criminals  condign  punishment,  still  the  opportunities  and  tempta- 
tions were  ever  present  to  misuse  the  power  thus  exercised. 

Aside  from  what  was  deemed  to  be  the  chief  justification  for  miners'  law, 
etc., — "the  absolute  and  imperative  necessity  for  its  use," — much  of  the  favor 
in  which  such  laws  were  held  was  probably  due  to  the  general  indefiniteness 
of  distinction  which  prevailed  as  to  their  real  character  and  methods  of  pro- 
cedure. And  this  endorsement  was  sometimes  accorded  by  men  in  high  |)laces 
who  would  shudder  at  the  thought  of  encouraging  lynch  law. 

The  lines  between  anti-vigilance  and  pro-vigilance  men  in  the  towns  and 
cities  throughout  the  State,  were  sharply  drawn,  and  feeling  lietween  the  two 
factions  often  became  intensely  bitter,  resulting  at  times  in  open  conflict.  The 
pro-vigilance  forces  were  necessarily  in  the  majority  in  the  cities  and  camps 
where  vigilance  or  similar  organizations  existed. 


270  History  of  the  Bench  and  Bar  of  California. 

Many  California  newspapers,  during  the  early  fifties,  strongly  defended 
miners'  law  upon  the  ground  of  necessity.  The  Sacramento  Transcript,  for 
example,  on  February  12,  1851,  in  commenting  upon  a  case  at  Bridgeport,  a 
town  on  Deer  Creek,  in  which  a  dishonest  partner  was  tried,  convicted  and 
sentenced  to  a  severe  Hogging,  says:  "This  is  the  only  sure  means  of  admin- 
istering justice,  and  although  we  may  regret,  and  deem  lynch  law  objection- 
able, yet  the  present  unsafe  sort  of  prisons  we  have,  and  the  lenity  shown 
offenders,  are  such  as  to  induce  us  to  regard  such  an  exercise  of  power  with 
comparative  lenity." 

As  representative  of  the  views  of  the  anti-vigilance  element.  General  W. 
T.  Sherman,  who  was  in  command  of  the  Federal  troops  in  San  Francisco 
during  the  year  1856,  that  being  the  year  in  which  the  Vigilance  Committee 
in  that  city  held  full  sway,  in  a  letter  written  at  the  suggestion  of  Justice  Field 
in  1868,  says:  "You  and  T  believe  that  with  good  juries,  Casey,  Cora,  Heth- 
erington  and  Brace  could  lia\e  been  convicted  and  executed  by  due  course  of 
law.  You  and  I  believe  that  San  Francisco  had  no  right  to  throw  off  on 
.other  communities  her  criminal  class,  and  that  the  Vigilance  Committee  did 
not  toucli  the  real  parties  who  corrupted  the  legislature,  and  the  local  gov- 
ernment. Again,  if  the  good  men  of  any  city  have  the  right  to  organize 
and  assume  the  functions  of  government,  the  bad  men  have  the  same  right  if 
m  the  majority." 

Lynch  law  ajjpears  to  be  rooted  in  the  theory  of  the  guilt  of  the  accused 
from  the  time  of  his  arrest.  That  most  salutary  rule  of  law  that  the  defend- 
ant is  presumed  to  be  innocent  until  the  contrary  is  proved,  is  subverted,  and 
the  door  is  thereby  thrown  open  to  prejudice,  unfairness  and  error.  When 
a  hearing  is  given  the  accused  by  a  lynching  party  it  is  conducted  in  the  most 
perfunctcjry  manner,  and  without  regard  for  those  principles  of  evidence 
founded  in  justice,  and  designed  to  clear  the  pathway  to  truth.  The  charac- 
ter of  the  punishment  to  l)e  inflicted  is  left  to  the  spontaneous  and  often  cruel 
ingenuity  of  the  crowd.  The  safeguards  which  the  experiences  of  mankind 
have  settled  upon  as  l)eing  necessary  to  the  proper  administration  of  justice, 
are  thus  disregarded  or  swept  aside  in  the  excitement  and  haste  which  almost 
invarial)ly  characterize  lynch  law  proceedings.  \^iewed  from  this  standpoint, 
lynch  law.  miners'  law  and  vigilance  law,  regardless  of  how  orderly,  or  how 
violent  their  methods  may  have  been,  were  essentially  the  same  in  character. 
In  the  full  light  of  a  righteous  law  the  various  forms  which  existed  in  Cali- 
fornia in  defiance  of  the  regularly  constituted  authorities,  or  in  disregard  for 
the  principles  of  civilized  jurisprudence,  should  all  be  classed  in  one  category, 
and  given  one  name,  lynch  law. 

The  uncontrollable  lawlessness  existing  in  many  early  California  commu- 
nities, and  the  lack  or  utter  inefificiency  of  means  for  dealing  regularly  with 
such  a  condition  of  affairs,  forced  the  pioneers  to  the  use  of  extreme  measures 
at  times  for  the  purpose  of  protecting  life  and  property.     In  such  exigencies, 


History  of  the  Bench  and  Bar  of  California.  271 

lynch  law  in  the  minds  of  some  found  sufficient  provocation  if  not  reasonable 
justification.  Only  a  fair  understanding  of  the  dangers  prevailing  in  camp  and 
city  can  serve  as  a  basis  for  judgment  upon  the  question  whether  the  use  of 
lynch  law^  was  ever  justified  as  a  means  for  suppressing  or  punishing  crime. 

It  might  be  interesting  to  recount  briefly  a  few  chapters  in  the  story  of 
the  struggle  for  order  in  California's  early  history,  with  the  end  in  view  of 
illustrating  more  specifically  the  character  of  lynch  law^  its  methods  and  its 
results.  -^ 

One  of  the  first  instances  of  the  application  of  lynch  law  in  California  was 
in  proceedings  taken  in  January.  1849,  fi'om  which  Hangtowai,  now  Placer- 
ville,  derived  the  former  name.  The  facts  appear  to  be  about  as  follows: 
Five  men  had  l:»een  caught  in  the  act  of  attempted  robbery  and  larceny.  The 
feeling  of  tlie  miners  ran  high,  as  it  generally  did  in  cases  of  robbery,  larceny 
and  murder.  No  court,  it  seems,  was  organized  in  the  town,  hence,  a  pro- 
visional judge  and  jury  w^ere  called  to  try  the  case.  The  proceedings  were 
conducted  in  an  orderly  manner  and  the  sentence  rendered  that  the  prisoners 
should  be  given  thirty-nine  lashes  each.  Hardly  had  the  sentence  been 
executed  l^efore  other  charges  were  presented  against  three  of  the  men  for 
robbery  and  attempt  to  murder,  committed  on  the  Stanislaus  River  in  the  pre- 
vious autumn.  A  jury  of  all  the  miners  in  camp,  about  two  hundred  in  num- 
ber, heard  the  evidence  and  sentenced  the  unhappy  prisoners  to  be  hanged. 
Only  one  man  seems  to  have  protested  against  the  sentence,  but  his  protests 
were  quieted  under  threats  of  death.  The  defendants  suffered  the  penalty 
thus  imposed  upon  them.  Tlie  man  who  strenuously  protested  against  the 
execution  was  Lieut.  E.  G.  Buffum.  The  attitude  of  the  miners  toward  Lieut. 
Bufifum  was  prompted  by  anger  and  impatience,  due  perhaps  to  the  fact,  that, 
in  their  view,  the  prisoners  had  as  fair  a  trial  as  the  circumstances  would  w^ar- 
rant.  and  when  the  sentence  was  pronounced  they  would  brook  no  delay. 
Although  it  ma,y  be  said  the  punishment  devised  for  the  offenders  was  swift 
and  merciless,  yet  even  here  is  presented  the  beginnings  of  order;  the  regard 
for  law  is  illustrated  in  the  adherence,  imperfect  and  prejudiced  though  it  was, 
to  those  forms  and  methods  of  procedure  wMth  which  the  citizens  were  already 
ac(|uainted. 

Ford's  Bar,  on  the  middle  fork  of  the  .American  River,  had,  as  early  as 
May,  1849,  ^ccjuired  the  reputation  of  being  the  worst  place  on  the  rix'cr.  Tn 
the  month  indicated  a  drunken  row  between  two  of  the  miners  occurred  at 
this  place.  One  of  the  combatants  was  struck  .so  violently  with  a  crow1>ar 
that  he  fell  into  the  stream.  The  other  follow^ed,  and  the  two  infuriated  men 
fought  in  the  w^ater.  The  fight  almost  resulted  in  a  general  combat  between 
the  friends  of  both  parties.  Better  judgment  prex-ailed,  and  after  calm  was 
restored,  seeing  that  recurrences  of  such  disgraceful  scenes  should  be  pre- 
vented, the  men  called  a  meeting  and  voluntarily  agreed  upon  a  few  simple 
rules  calculated  to  secure  the  peace  and  quiet  of  the  camp.     The  code  of  laws 


272  History  of  the  Bench  and  Bar  of  California. 

thus  improvised  provided  for  the  trial  of  certain  specified  offenses  by  a  jury 
consisting  of  three  persons.  It  is  amusing  to  read  the  first  application  of  the 
law,  thus  devised,  to  the  case  of  a  tinker  who  had  been  arrested  for  assaulting 
a  party  with  a  junk  bottle.  His  antagonist  retaliated  by  drawing  a  knife  and 
with  it  inflicting  several  severe  cuts  and  gashes  upon  the  tinker.  Both  men 
were  arrested  and  taken  before  Alcalde  Graham,  who  evidently  was  the  lead- 
ing spirit  in  the  administration  of  justice  in  the  camp.  The  tinker,  although 
the  offending  party,  was  acquitted  "because  there  was  no  law  against  using  a 
bottle  as  a  weapon."  while  his  antagonist  was  convicted  of  unlawfully  drawing 
a  knife,  an  offense  which  had  been  expressly  legislated  upon  in  their  simple 
code  of  laws.  This  incident  illustrates  in  an  amusing  way  the  layman's  view 
of  the  established  principle  of  the  common  law,  that  criminal  statutes  must 
be  strictly  ccMistrued.  It  may  be  well  imagined  that  the  decision  of  the  alcalde 
met  with  much  disfavor  in  the  camp,  for  ordinarily  such  refinements  were 
given  scant  approval. 

The  feverish  haste  exhil)ited  at  lynch  law  proceedings  may  be  illustrated 
by  a  case  which  occurred  in  Columbia,  Tuolumne  County,  on  Wednesday, 
October  loth,  1855.  A  man  named  John  H.  Smith  became  involved  in  a 
ijuarrel  with  the  proprietress  of  a  saloon,  during  which  quarrel  he  was  fatally 
shot  b}-  the  husband  of  the  woman,  who,  on  coming  from  an  adjoining  room 
into  the  barroom  where  the  quarrel  was  going  on,  fired  upon  and  killed  Smith. 
John  S.  Barclay  was  the  name  of  the  murderer.  The  direction  given  to  the 
trial  and  other  events  which  followed  was  determined  principally  by  the  attitude 
of  James  W.  Coffroth,  a  popular  man  in  the  camps,  who  had  just  been 
elected  to  the  State  senate.  Coffroth,  in  his  regard  for  his  deceased  friend, 
allowed  his  passions  to  dominate.  He  vehemently  demanded  that  A'engeance 
1)6  meted  out  to  Barclay  for  the  crime.  The  mob  was  stirred  to  frenzy  by 
Coffroth.  No  thought,  however,  was  entertained  of  visiting  punishment  upon 
the  offender  without  a  show  at  least  of  fairness.  The  crowd  gathered  about 
the  jail,  and  a  judge,  marshal  and  jury  of  twelve  persons  were"  impressed  into 
service.  The  iron  doors  were  then  forced  open  and  Barclay,  who  had  hoped 
to  make  his  escape  through  the  crowd,  was  seized  and  carried  off  by  the 
excited  people  amid  cries  and  imprecations.  In  the  impromptu  trial,  Coffroth 
acted  as  the  prosecuting  attorney,  and  John  Oxley,  a  man  of  firm  and  noble 
purposes,  defended  the  i)risoner.  Coffroth  was  insistent  upon  revenge,  and 
in  his  shrewd  way  invoked  in  behalf  of  the  people,  the  law  cjuoted  at  the  head 
of  this  j)ai)er  :  "An  eye  for  an  eye :  a  tooth  for  a  tooth  ;  a  life  for  a  life."  The 
text.  "Whoso  slicddeth  man's  blood,  by  man  shall  his  blood  be  shed."  was  also 
used  to  lend  strength  and  the  semblance  of  sanctity  to  his  case.  Despite  the 
protests  of  Oxley  and  his  appeals  to  the  people  a.sking  them  to  reflect  on  what 
they  were  about  to  do.  amid  cries  for  the  life  of  the  prisoner.  Barclay  was  told 
to  prepare  himself  for  the  execution  which  awaited  him  according  to  the 
sentence.     The  sheriff  of  the  county.  J.  M.  Stewart,  made  an  ineffectual  at- 


History  of  the  Bench  and  Bar  of  California.  273 

tempt  to  rescue  the  prisoner,  but  was  beaten  back  and  hustled  away  from  the 
scene.  While  the  sheriff  was  thus  being  fought  off  the  prisoner  was  hanged. 
His  arms  were  left  unpinioned.  His  convulsive  clutching  at  the  rope  while 
hanging  in  mid-air.  were  greeted  with  derisive  cries  and  yells  from  those  who 
looked  on.  This  in  brief  is  the  story  of  one  of  the  most  barbarous  cases  in 
the  annals  of  lynch  law. 

Another  extreme  case  was  that  of  the  lynching  of  a  woman  for  the  crime 
of  murder  committed  on  July  5th,  185 1,  at  Downieville.  The  story  of  this  re- 
volting case  is  told  by  Mr.  Hittell  in  his  excellent  history  of  California  (Vol. 
3.  page  307),  as  follows: 

"It  was  one  of  the  sequels  of  a  great  Fourth  of  July  celebration.  John  B. 
Weller,  afterwards  Governor  of  the  State,  had  been  announced  to  deliver  an 
address,  and  a  very  large  crowd  congregated  to  hear  him — the  miners  and  settlers 
coming  in  from  all  the  camps  in  the  neighborhood.  .After  the  regular  exercises 
of  the  day,  there  was  much  drinking  and  carousing ;  and  in  the  evening,  when 
it  began  to  grow  dark,  a  number  of  the  revelers  started  out  staggering  through 
the  streets,  hooting  and  howling,  beating  on  houses  and  breaking  open  doors 
here  and  there  as  they  went.  Among  other  places  attacked  was  a  house  occupied 
by  a  Mexican  woman  called  Juanita  and  a  countryman  of  hers,  who  kept  a  monte 
table.  One  of  the  revelers,  and  perhaps  the  most  hilarious  of  them,  was  a 
Scotchman  of  large  size  and  great  physical  strength,  known  as  Jack  Cannon. 
He  seems  to  have  been  acquainted  with  the  woman,  or  at  any  rate  went  to  make 
her  a  visit  the  next  morning.  Some  said  his  object  was  to  apologize  and  pay  for 
any  damage  he  had  done ;  but  this  does  not  appear  to  be  probable.  Whatever  his 
object  may  have  been,  he  was  seen  to  go  up  to  the  door,  where  the  woman  and 
her  Mexican  friend  were  standing,  and  was  heard  to  address  her  with  a  vulgar 
expression.  She  immediately  turned  back  into  the  house  and  entered  a  side 
room,  leaving  Cannon  leaning  with  a  hand  on  each  side  of  the  doorway,  convers- 
ing with  the  man.  In  a  moment  afterwards,  however,  she  came  back,  holding 
one  hand  behind  her,  and  rushing  forward  she  plunged  a  long  knife  with  all 
her  strength  into  Cannon's  breast  and  killed  him." 

"The  news  of  the  homicide  spread  like  wild-fire.  It  took  but  a  little  time 
for  an  immense  crowd  to  collect.  They  were  not  fully  over  the  effects  of  their 
dissipation  of  the  day  before;  but  their  e.xcitement  took  a  new  direction;  and 
it  was  now  for  vengeance  on  the  murderer  of  Jack  Cannon,  who  had  been  a 
jolly  good  fellow  and  popular  with  everybody.  On  the  first  indication  of  this 
feeling,  the  woman  had  left  her  own  house  and  entered  the  saloon  of  one  Cray- 
croft  for  protection.  But  the  crowd  soon  surrounded  Craycroft's,  and,  seizing 
the  woman,  carried  her  to  the  main  plaza  of  the  town,  where  the  stand  erected 
for  the  exercises  of  the  day  previous  still  remained.  Her  Mexican  friend  con- 
tinued with  her,  while  the  body  of  Cannon  was  exposed  in  a  tent  near  by.  Upon 
arriving  at  the  plaza,  the  first  things  done  by  the  crowd  were  to  select  a  judge 
and  jury  and  appoint  counsel  for  the  people  and  the  defendant  respectively. 
There  was  little  for  the  prosecution  to  do;  but  the  attorney  for  the  defense 
received  very  bad  treatment.  Seeing  that  he  could  say  nothing  of  importance 
in  reference  to  the  killing,  he  confined  himself  to  the  enormity  of  hanging  a 
woman,  and  put  that  enormity  in  so  strong  a  light  that  the  mob  became  mad- 
dened and  kicked  the  barrel  on  which  he  stood,  from  under  him— his  hat  going 
one  way  and  his  spectacles  another,  while  he  himself  was  carried  at  least  a 
hundred  yards,  hustled  from  side  to  side,  before  he  touched  the  ground.  Next 
a  doctor,  named  C.  D.  Aiken,  attempted  to  save  the  woman  by  claiming  that 
she  was  about  to  become  a  mother;  but  as  is  usual  on  such  occasions,  other 
doctors  were  found  to  express  a  directly  contrary  opinion  ;  and  the  result  was 


274  History  of  the  Bench  and  Bar  of  California. 

thai  Dr.  Aiken  was  ordered  to  leave  Downieville,  and  found  it  safest  to  do  so. 
The  infuriated  crowd  would  evidently  suffer  nothing  to  be  said  or  done  in  favor 
of  their  victim,  and  would  brook  no  opposition  to  their  predetermination  to  be 
avenged.  The  end  was  not  long  coming.  The  jury  in  a  very  short  time  re- 
turned a  verdict  of  guilty;  and  the  judge,  without  waiting  to  be  prompted  by 
the  crowd,  sentenced  the  woman  to  be  hanged.  She  was  given  only  an  hour 
to  prepare  for  death,  while  arrangements  were  made  on  what  was  known  as 
Jersey  bridge  for  her  execution.  A  rope  was  fastened  on  one  of  the  projecting 
upper  timbers,  while  beneath  it  a  plank,  six  inches  wide,  was  pushed  out  over 
the  stream  and  lashed  to  the  floor  timbers  of  the  bridge.  At  the  end  of  the  hour 
the  woman  was  brought  to  the  place  and  stationed  on  the  plank.  There  were 
several  thousand  spectators  present.  The  woman,  of  course,  knew  what  was 
coming;  but  she  appears  to  have  been  perfectly  cool  and  collected.  She  sur- 
veyed the  crowd  and  spoke  pleasantly  to  several  of  her  acquaintances.  She 
took  off  her  hat  and  handed  it  to  one  of  them,  bidding  him  good-bye  in  Spanish. 
She  then  took  in  her  own  hands  the  rope  that  was  being  thrown  over  her  neck 
and  adjusted  it  beneath  her  black  hair.  A  white  handkerchief  was  fastened 
over  her  face;  her  hands  were  tied  behind  her;  and  at  each  side  of  the  plank 
behind  her  a  man,  ax  in  hand,  stood  ready  to  cut  the  lashings.  At  the  report 
of  a  pistol,  which  had  been  agreed  upon  as  a  signal,  down  came  the  axes ;  the 
plank  dropped,  and  Juanita  fell  three  or  four  feet,  and  remained  suspended. 
Consciousness  was  apparently  extinguished  instantaneously  upon  the  fall;  and 
death  was  rapid." 

l*ei"haps  the  best  cjrgaiiized  and  least  oljjectiunable  form  of  lynch  law 
was  that  exhibited  by  the  Committee  of  Vigilance  of  San  Francisco,  organized 
June  9th,  1851,  and  reorganized  May  14,  1856.  There  had  been  vigilance 
committees  in  other  towns  in  the  State,  yet  that  which  was  formed  in  San 
Francisco  on  the  dates  given  above  undoubtedly  deserves  the  reputation  of 
being  the  best  conducted  and  most  strikingly  impressive  organization  of  the 
people  for  dealing  w  ith  crime,  outside  of  the  regular  courts  of  justice,  that  has 
ever  been  established  in  any  age  or  place.  It  has  been  said  of  a  vigilance  com- 
mittee that  it  will  itself  break  the  law,  but  it  does  not  allow  others  to  do  so. 
The  doctrine  of  vigilance,  as  of  lynch  law  in  general,  is  based  upon  the  theory 
that  the  people  have  the  right  to  hold  perpetual  vigil  over  all  their  institutions 
and  to  ccjrrect.  where  necessary,  abuses  and  corruption  which  threaten  the 
security  of  their  lives  and  property.  It  is  civil  revolution  as  opposed  to  civil 
rel)e]h'on.  This  right,  if  such  it  l)e,  may  be  exercised,  it  is  claimed,  in  the  ex- 
tremity of  necessity  arising  out  of  the  prevalence  of  crime  and  the  immunity  of 
law-breakers  from  punishment.  Vigilance  proceeds  upon  the  principle  that 
if  the  law  is  notoriously  inadequate  to  reach  and  efficiently  punish  law-breakers, 
it  would  be  a  greater  crime  and  wrong  upon  the  public  to  permit  such  lawless- 
ness and  corruption,  than  to  supersede  the  recognized  authorities  by  a  new 
organization  which  shall  deal  more  effectively  with  such  evils,  than  the 
courts  through  venality,  or  some  other  weakness,  are  able  to  do. 

The  stern  judgments  reached  by  the  Vigilance  Committees  in  San  Fran- 
cisco, were  characterized  by  unselfishness,  and  above  all  by  an  unquestionable 
solicitude  for  the  public  welfare.  Yet  even  this  organization,  made  up  for 
the  most  part  of  good  citizens,  could  not  find  more  than  passing  favor  among 


History  of  the  Bench  and  Bar  of  California.  275 

the  citizens  of  the  State.  Only  the  greatest  necessities  evolved  from  the  con- 
ditions of  the  times,  could  warrant  the  creation  or  existence  of  a  tribunal  of 
men  whose  work  was  so  revolutionary  in  its  purposes  and  results. 

The  double  executions  of  James  P.  Casey  and  Charles  Cora  on  May  22, 
1856,  and  that  of  James  Hetlierington  and  Philander  Brace  on  July  29th, 
in  the  same  vear.  were  most  spectacular  exhibitions  of  the  method  in  which 
the  Vigilance  Committee  of  San  Francisco  dealt  wnth  the  city's  criminals. 
These  men  were  tried  by  the  Vigilance  Committee  for  henious  offenses,  con- 
victed and  sentenced  to  l)e  hanged.  The  terrible  earnestness  of  the  committee 
and  the  expedition  shown  by  it  in  dealing  with  these  representatives  of  the 
most  depraved  and  desperate  class  that  have  ever  infested  any  city  in  America, 
ga\e  rise  to  almost  revolutionary  conditions,  Thcmgh  bitterly  opposed  by 
the  regularly  constituted  State  and  city  authorities,  the  Vigilance  Committees 
of  San  Francisco  were  instrumental  in  putting  a  stop  to  street  murders,  law- 
lessness at  elections  and  in  effectually  lessening  corruption  in  the  courts. 
These  residts  in  San  Francisco,  and  similar  results  reached  elsewhere  through- 
out the  State,  stand  as  the  sole  justification  for  the  existence  of  organizations 
based  necessarily  upon  the  doctrine  that  the  safer  and  less  violent  methods 
afforded  by  courts  of  justice  must,  when  notoriously  inefficient,  be  either 
undermined  or  entirely  superseded  by  force. 

The  most  conspicuous  weakness  of  lynch  law  proceedings  is  probably 
found  in  the  haste  and  lack  of  deliberation  shown  in  the  treatment  of  crim- 
inals. The  fact  that  the  culprit  was  tried  in  most  instances  while  the  passions 
of  the  ])eople  were  at  white  heat,  militated  against  justice  and  provoked  the 
infiiction  of  cruel  and  unusual  punishments.  The  modern  cxil  of  i)rocrastina- 
tion  in  dealing  with  criminals  finds  its  opposite  in  the  precipitance  manifested 
in  the  early  history  of  crime  in  our  State.  Both  methods  are  reprehensible. 
As  civilized  society  has  always  shrunk  from  punishing  the  innocent,  the  ex- 
treme care  taken  in  this  respect  has  often  resulted  in  a  failure  to  punish  the 
guilty.  On  the  other  hand,  where  proceedings  are  irregular  and  overhasty, 
the  greater  danger  that  the  innocent  be  made  to  suffer  is  ever  imminent. 

The  temptation  to  magnify  the  spectacular  events  in  the  life  of  a  people, 
and  to  correspondingly  minify  the  less  conspicuous,  yet  ecjually  if  not  more 
important  happenings,  is  so  strong,  that  treatment  of  a  subject  such  as  that 
now  under  consideration,  is  likely  to  lead  to  exaggerated  and  false  ideas. 
Notwithstanding  the  prevalence  of  crime — the  common  curse  in  new  gold 
fields, — California  from  almost  the  day  of  its  birth  as  a  State  was  firmly 
established  upon  the  fundamental  principles  of  civilization.  Tt  has  been  said 
that  "the  courts  of  justice  in  California,  were  in  early  times  e(|ual.  if  not 
superior  to  those  of  anv  border  settlement  founded  since  the  days  of  Justin- 
ian"; and,  if  since  the  days  of  Justinian,  may  it  not  be  truly  said  for  all  time? 
In  almost  all  the  mining  settlements  of  the  State  during  the  winter  of 
1849-50,  an  alcalde  was  chosen  to  preside  at  trials  and  also  at  lynch  law  pro- 


276  History  of  the  Bench  and  Bar  of  California. 

ceedings.  Mr.  Hittell.  in  his  wurk  un  the  history  of  Cahfornia,  says  in  this 
connection :  "In  the  absence  of  regnlar  law,  and  on  account  of  the  unsettled 
state  of  the  country,  the  authority  he  (the  alcalde)  exercised  was  very  ex- 
tensive and  sometimes  arbitrary;  but  he  could  only  hold  his  office  so  long  as 
ins  action  gave  satisfaction  to  the  community ;  and  he  was  consequently  re- 
strained from  committing  any  great  excesses.  On  the  other  hand,  the  miners 
in  general  treated  him  with  respect.  He  was  the  general  conservator  of  the 
peace  and  preserver  of  order,  and  in  many  and  perhaps  the  majority  of  camps, 
where  the  office  was  filled  by  a  (|uiet.  firm  and  unobtrusive  man,  there  was 
as  good  security  and  as  complete  protection  to  life.  limb,  property  and  per- 
sonal rights  as  anywhere  else  in  the  world." 

No  trace  of  general  disorder  in  California  can  be  surmised  from  reading 
the  records  and  decisions  of  the  courts,  no  indications  of  anarchy,  or  of  a 
state  of  social  being  different  from  that  of  the  then  most  enlightened  states 
of  the  East.  Genius  directed  the  destinies  of  California  from  the  time  her 
gold  fields  attracted  the  attention  of  the  world.  Her  early  jurists,  lawyers, 
statesmen,  orators,  literary  men  and  organizers  of  industry,  were  men  of  large 
purposes,  of  lofty  ideals,  and  of  untiring,  creative  energy.  The  erudite  and 
fearless  Field;  that  intellectual  storm-cloud,  Terry;  the  modest,  eloquent 
and  soulful  Baker:  the  able  IMc.Vllister ;  the  brilliant  and  eccentric  Lockwood ; 
the  industrious  Haymond;  the  wise  and  genial  Baldwin;  all  were  representa- 
tives of  types  which  have  created  for  California,  in  the  annals  of  government 
and  law.  fame  and  substantial  eminence  as  a  highly  civilized  state.  Names 
prominent  in  other  branches  of  public  activity  might  be  added  to  the  list,  but 
those  given  will  illustrate  the  conspicuous  wealth  of  ability  in  California  from 
the  date  of  her  entry  into  the  Union.     ■ 

Forgetting  the  reactionary  effect  scenes  of  violence  exert  upon  those  who 
take  part  in  them,  remembering  the  sacrifices  the  pioneers  of  California  were 
ever  ready  to  make,  and  remembering,  also,  their  honesty  of  purpose,  their 
fervor  and  hopes,  may  it  not  be  said  that  even  their  faults  illustrate  the  zeal 
they  put  into  their  li\-es.  their  intense  hatred  of  crime,  and  the  desire,  com- 
l)letely  ob.scured  though  it  often  may  have  been,  to  establish  order  and  exalt 
justice  in  the  land  they  soon  learned  to  love. 

JOHN  a.  JURY. 

San  Jose.  California. 


THE  HISTORY  OF 
THE  MINING  LAWS 
OF  CALIFORNIA 

"BY  HON.  JOHN  F.  DAVIS 


John  F.  Davis 


_!o  'j<3  tijo  uJib  uJSb  cfe  iJlSb  {jljb  <j^ 


HISTORY  of  the 
BENCH  and  BAR 
of  CALIFORNIA 


ejn  e^  cgi  e^  6ja  qp  f^  ej^r.  ejp  ey. 


The  HISTORY  of  the  MINING  LAWS 
of  CALIFORNL\ 


One  of  the  most  interesting  chapters  in  Pliny,  who  wrote  his  Natnral 
History  shortly  after  the  time  of  Christ,  is  that  in  which  he  describes  the 
different  methods  of  mining  operations  in  vogue  in  his  time. 

"Gold  is  found  in  oiir  part  of  the  world,"  says  this  classical  author,  "not 
to  mention  the  gold  extracted  from  the  earth  in  India  by  the  ants,  and  in 
Scythia  by  the  griffins.  Among  us  it  is  procured  in  three  different  ways  :  tlie 
first  of  which  is  in  the  shape  of  dust,  found  in  running  streams,  the  Tagus  in 
Spain,  for  instance,  the  Padus  in  Italy,  the  Hebrus  in  Thracia,  the  Pactolus 
in  Asia,  and  the  Ganges  in  India.  Indeed,  there  is  no  gold  found  in  a  more 
perfect  state  than  this,  thoroughly  polished  as  it  is  by  the  continual  attrition 
of  the  current. 

"A  second  mode  of  obtaining  gold  is  by  sinking  shafts  or  seeking  it  among 
the  debris  of  the  mountains,  both  of  which  methods  it  will  be  well  to  describe. 
The  persons  in  search  of  gold  in  the  first  place  remove  the  'segutilum,'  such 
being  the  name  of  the  earth  which  gives  indication  of  the  presence  of  gold. 
This  done,  a  bed  is  made,  the  sand  of  wdiich  is  washed,  and  according  to  the 
residue  found  after  w^ashing,  a  conjecture  is  formed  as  to  the  richness  of  the 
vein.  Sometimes,  indeed,  gold  is  found  at  once  in  the  surface  earth,  a  success, 
however,  but  rarely  experienced.  Recently,  for  instance,  in  the  reign  of  Nero, 
a  vein  was  discovered  in  Dalmatia,  which  yielded  daily  as  much  as  fifty  pound 
weight  of  gold.  The  gold  that  is  thus  found  in  the  surface  crust  is  known  as 
'talutium,'  in  cases  where  there  is  auriferous  earth  beneath.  The  mountains 
of  Spain,  in  other  respects  arid  and  sterile,  and  productive  of  nothing  whatever, 
are  thus  constrained  by  man  to  be  fertile,  in  supplying  him  with  this  precious 
commodity. 

"The  gold  that  is  extracted  from  shafts  is  known  by  some  persons  as  'canal- 
icium,'  and  by  others  'canaliense.'  It  is  found  adhering  to  the  gritty  crust  of 
marble,  and  altogether  different  from  the  form  in  which  it  sparkles  in  the 


280  History  of  the  Bench  and  Bar  of  California. 

sapphirus  of  the  East,  and  in  the  stone  of  Thebais  and  other  gems,  it  is  seen 
interlaced  with  the  molecules  of  the  marble.  The  channels  of  these  veins  are 
found  running  in  various  directions  along  the  sides  of  the  shafts,  and  hence 
the  name  of  the  gold  they  yield,  'canalicium.'  In  these  shafts,  too,  the  super- 
incumbent earth  is  kept  from  falling  in  by  means  of  wooden  pillars.  The  sub- 
stance that  is  extracted  is  first  broken  up  and  then  washed,  after  which  it  is 
subjected  to  the  action  of  fire  and  ground  to  a  fine  powder.  This  powder  is 
known  as  'apitascudes',  while  the  silver  which  becomes  disengaged  in  the  fur- 
nace has  the  name  of  'sudor'  given  to  it.  The  impurities  that  escape  by  the 
chimney,  as  in  the  case  of  all  other  metals,  are  known  by  the  name  of  'scoria.' 
In  the  case  of  gold,  this  scoria  is  broken  up  a  second  time  and  melted  over  again. 
The  crucibles  used  for  this  purpose  are  made  of  'tasconium,'  a  white  earth 
similar  to  potter's  clay  in  appearance,  there  being  no  other  substance  capable 
of  withstanding  the  strong  current  of  air,  the  action  of  the  fire,  and  the  intense 
heat  of  the  melted  metal. 

"The  third  method  of  obtaining  gold  surpasses  the  labors  of  the  giants  even. 
By  the  aid  of  galleries  driven  to  a  long  distance,  mountains  are  excavated 
by  the  light  of  torches,  the  duration  of  which  forms  the  set  times  tor  work, 
the  workmen  never  seeing  the  light  of  day  for  many  months  together.  These 
mines  are  known  as  'arrugi?e,'  and  not  unfrequently  the  clefts  are  formed  on 
a  sudden,  the  earth  sinks  in,  and  the  workmen  are  crushed  beneath ;  so  that  it 
would  really  appear  less  rash  to  go  in  search  of  pearls  and  purples  at  the  bottom 
of  the  sea,  so  much  more  dangerous  to  ourselves  have  we  made  the  earth  than 
the  water.  Hence  it  is  that  in  this  kind  of  mining,  arches  are  left  at  frequent 
intervals  for  the  purpose  of  supporting  the  weight  of  the  mountain  above. 
In  mining  either  by  shaft  or  by  gallery,  barriers  of  silex  are  met  with,  which 
have  to  be  driven  asunder  by  the  aid  of  fire  and  vinegar,  or  more  frequently,  as 
this  method  fills  the  galleries  with  suffocating  vapors  and  smoke,  to  be  broken 
to  pieces  with  bruising  machines  shod  with  pieces  of  iron  weighing  one  hundred 
and  fifty  pounds ;  which  done,  the  fragments  are  carried  out  on  the  men's 
shoulders,  night  and  day,  each  man  passing  them  on  to  his  neighbor  in  the 
dark,  it  being  only  those  at  the  pit's  mouth  that  ever  see  light.  In  cases  where 
the  bed  of  silex  appears  too  thick  to  admit  of  being  penetrated,  the  miner  traces 
along  the  sides  of  it,  and  so  turns.  And  yet,  after  all,  the  labor  entailed  by 
this  silex  is  looked  upon  as  comparatively  easy,  there  being  an  earth — a  kind 
of  potter's  clay  mixed  with  gravel — 'gangadia'  by  name,  which  it  is  almost 
impossible  to  overcome.  This  earth  has  to  be  attacked  with  iron  wedges  and 
hammers,  like  those  previously  mentioned,  and  it  is  generally  considered  that 
there  is  nothing  more  stubborn  in  existence — except,  indeed,  the  greed  for 
gold,  which  is  the  most  stubborn  of  all  things. 

"When  these  operations  are  completed,  beginning  at  the  last,  they  cut 
away  the  wooden  pillars  at  the  point  where  they  support  the  roof.  The  coming 
downfall  gives  warning,  which  is  instantly  perceived  by  the  sentinel,  and  by 


History  of  the  Bench  and  Bar  of  California.  281 

him  only,  who  is  set  to  watch  upon  a  peak  of  the  same  mountain.  By  voice  as 
well  as  by  signals,  he  orders  the  workmen  to  be  immediately  removed  from 
their  labors,  and  at  the  same  moment  takes  flight  himself.  The  mountain,  rent 
to  pieces,  is  cleft  asunder,  hurling  its  debris  to  a  distance  with  a  crash  which  it 
is  impossible  for  the  human  imagination  to  conceive;  and  from  the  midst  of 
a  cloud  of  dust,  of  a  density  quite  incredible,  the  victorious  miners  gaze 
upon  this  downfall  of  nature.  Nor  yet  even  then  are  they  sure  of  gold,  nor, 
indeed,  were  they  by  any  means  certain  that  there  was  any  to  be  found  when 
they  first  began  to  excavate,  it  being  quite  sufficient,  as  an  inducement  to 
undergo  such  perils  and  to  incur  such  vast  expense,  to  entertain  the  hope  that 
they  will  obtain  what  they  so  eagerly  desire. 

"Another  labor,  too,  quite  equal  to  this,  and  one  which  entails  even  greater 
expense,  is  that  of  bringing  rivers  from  the  more  elevated  mountain  heights, 
a  distance,  in  many  instances,  of  one  hundred  miles,  perhaps,  for  the  purpose  of 
washing  the  debris.  The  channels  thus  formed  are  called  'corrugi'  from  our 
word  'corrivatio,'  I  suppose;  and  even  when  these  are  once  made  they  entail 
a  thousand  fresh  labors.  The  fall,  for  instance,  must  be  steep,  that  the  water 
may  be  precipitated,  so  to  say,  rather  than  flow;  and  it  is  in  this  manner  that 
it  is  brought  from  the  most  elevated  points.  Then,  too,  the  valleys  and  cre- 
vasses have  to  be  united  by  the  aid  of  aqueducts,  and  in  another  place  impassa- 
ble rocks  have  to  be  hewn  away  and  forced  to  make  room  for  hollowed  troughs 
of  wood,  the  persons  hewing  them  hanging  suspended  all  the  time  with  ropes, 
so  that  to  a  spectator  who  views  the  operations  from  a  distance,  the  workmen 
have  all  the  appearance,  not  so  much  of  wild  beasts  as  of  birds  upon  the  wing. 
Hanging  thus  suspended  in  most  instances,  they  take  the  levels,  and  trace  with 
lines  the  course  the  water  is  to  take ;  and  thus,  where  there  is  no  room,  even 
for  man  to  plant  a  footstep,  are  rivers  traced  out  by  the  hand  of  man. 

"The  water,  too,  is  considered  in  an  unfit  state  for  washing  if  the  current 
of  the  river  carries  any  mud  along  with  it.  The  kind  of  earth  that  yields  this 
mud  is  known  as  'wrium,'  and  hence  it  is  that  in  tracing  out  these  channels, 
they  carry  the  water  over  beds  of  sile.x  or  pebbles,  and  carefully  avoid  this 
wrium.  When  they  have  reached  the  head  of  the  fall,  at  the  very  brow  of 
the  mountain,  reservoirs  are  hollowed  out  a  couple  of  hundred  feet  in  length 
and  breadth,  and  some  ten  feet  in  depth.  In  the  reservoirs  there  are  generally 
five  sluices  left,  about  three  feet  s(|uare;  so  that  the  moment  the  reservoir  is 
filled,  the  flood  gates  are  struck  away  and  the  torrent  bursts  forth  with  such  a 
degree  of  violence  as  to  roll  onward  any  fragments  of  rock  which  may  obstruct 
its  passage. 

"When  they  have  reached  the  level  ground,  loo,  there  is  still  anotlicr  lal)or 
that  awaits  them.  Trenches — known  as  'agogoe' — have  to  be  dug  for  the  pas- 
sage of  water;  and  these,  at  regular  intervals,  1ia\-e  a  layer  of  ulex  placed  at 
the  bottom. 

"This  ulex  is  a  plant  like  i-oscniai-y  in  apiJe.arance.  rough  and  ])rickly,  and 


282  History  of  the  Bench  and  Bar  of  California. 

well  adapted  for  arresting  any  pieces  of  gold  that  may  be  carried  along.  The 
sides,  too,  are  closed  in  with  planks,  and  are  supported  by  arches  when  carried 
over  steep  and  precipitous  spots.  Tiie  earth  carried  onw'ard  in  the  stream, 
arrives  at  the  sea  at  last,  and  thus  is  the  shattered  mountain  washed  away — 
causes  which  have  greatly  tended  to  extend  the  shores  of  Spain  by  these  en- 
croachments upon  the  deep.  It  is  also  by  the  agency  of  canals  of  this  descrip- 
tion that  the  material,  excavated  at  the  cost  of  such  immense  labor  by  the 
process  previously  described,  is  washed  and  carried  away,  for  otherwise  the 
shafts  would  soon  be  choked  up  by  it. 

"The  gold  found  by  excavating  with  galleries  does  not  require  to  be  melted, 
but  is  pure  gold  at  once.  In  these  excavations,  too,  it  is  found  in  lumps,  as 
also  in  the  shafts  which  are  sunk,  sometimes  exceeding  ten  pounds  even.  The 
names  given  these  lumps  are  'palagae,'  and  'palacurn?e,'  while  the  gold  found 
in  small  grains  is  known  as  'baluce.'  The  ulex  that  is  used  for  the  above  pur- 
pose is  dried  and  burnt,  after  which  the  ashes  of  it  are  washed  upon  a  bed  of 
grassy  turf,  in  order  that  the  gold  may  be  deposited  thereupon." 

The  giimpse  given  us  by  this  chapter  makes  all  the  keener  our  regret  that 
the  works  of  Theophrastus  and  Philo  on  metals  and  that  of  Strabo  on  machines 
and  methods  of  parting  metals,  are  unfortunately  lost  forever.  Had  the  library 
at  Alexandria  not  been  burned,  who  shall  say  that  we  might  not  have  found 
for  our  legal  doctrine  of  the  "extralateral  right"  in  quartz  mining  some  more 
ancient  prototype  than  the  earlier  mining  codes  of  Prussia  or  the  customs  of 
the  lead  mines  of  Derbyshire? 

DISCOVERY  OF  GOLD  IN  CALIFORNI.\. 

On  the  4th  day  of  May,  1846,  Thomas  O.  Larkin,  United  States  consul 
at  Monterey,  in  an  official  letter  to  James  Buchanan,  then  secretary  of  state, 
WTOte  as  follows  :  "There  is  no  doubt  but  that  gold,  silver,  quicksilver,  copper, 
lead,  sulphur,  and  coal  mines  are  to  be  found  all  over  California,  and  it  is 
equally  doubtful  whether,  under  their  present  owners,  they  will  ever  be 
worked."  On  the  7th  of  July,  1846,  sixty-four  days  later.  Commodore  Sloat 
raised  the  American  flag  at  Monterey. 

James  W.  Marshall  made  the  discovery  of  gold  in  the  race  of  the  saw^mill 
at  Coloma  in  the  latter  part  of  January,  1848.  Thereupon  took  place  an  incident 
of  history  which  demonstrated  that  Jason  and  his  companions  were  not  the 
only  Argonauts  who  ever  made  a  voyage  to  unknown  shores  in  search  of  the 
golden  fleece.  The  first  news  of  the  discovery  almost  depopulated  the  towns 
and  ranches  of  California  and  even  affected  the  discipline  of  the  small  army 
of  occupation.  The  first  winter  brought  thousands  of  Oregonians,  Mexicans, 
Kanakas  and  Chilenos.  The  extraordinary  reports  that  reached  the  East  were 
at  first  disbelieved,  but  when  the  private  letters  of  army  officers  and  men  in 
authority  were  publislied  an  indescribable  gold  fever  took  possession  of  the 
nation  east  of  the  Alleghanies.     All  the  energetic  and  daring,  all  the  physically 


History  of  the  Bench  and  Bar  of  California.  283 

sound  of  all  ages,  seemed  bent  on  reaching  the  new  El  Dorado.  The  old 
Gothic  instinct  of  invasion  seemed  to  survive  and  thrill  in  the  fibre  of  our  peo- 
ple, and  the  camps  and  gulches  and  mines  of  California  witnessed  a  social  and 
political  phenomenon  unique  in  the  history  of  the  world,  the  spirit  and  romance 
of  which  have  have  been  immortalized  in  the  pages  of  Bret  Harte.  Before  1850 
the  population  of  California  had  risen  from  15,000,  as  it  was  in  1847,  to 
100,000,  and  the  annual  average  increase  for  six  years  thereafter  was  50.000. 

A  COMMUNITY  WITHOUT  CIVIL  LAW. 

At  the  time  of  Marshall's  discovery  the  United  States  was  still  at  war 
with  Mexico,  its  sovereignty  over  the  soil  of  California  not  yet  recognized  by 
the  latter.  The  treaty  of  Guadalupe  Hidalgo  was  not  concluded  till  February 
2nd.  the  ratified  copies  thereof  not  exchanged  at  Oueretaro  till  May  30th,  and 
the  treaty  not  proclaimed  till  July  4th.  1848. 

On  the  1 2th  of  February,  1848,  ten  days  after  the  signing  of  the  treaty  of 
peace,  and  about  three  weeks  after  the  dis'cvovery  of  gold  at  Coloma,  Colonel 
Mason  did  the  pioneers  a  signal  service  by  issuing  as  Governor  the  proclama- 
tion concerning  the  mines,  which  at  the  time  was  taken  as  finality  and  certaintj 
as  to  the  status  of  mining  titles  in  their  international  aspect :  "From  and 
after  this  date,  the  Mexican  laws  and  customs  now  prevailing  in  California, 
relative  to  the  denouncement  of  mines,  are  hereby  abolished."  Although,  as  the 
law  was  fourteen  years  afterwards  expounded  by  the  United  States  Supreme 
Court  (U.  S.  vs.  Castellero,  2  Black,  18-371),  the  act  was  unnecessary  as  a  pre- 
cautionary measure,  still  the  practical  result  of  the  timeliness  of  the  procla- 
mation was  to  prevent  attempts  to  found  private  titles  to  the  new  discoveries 
of  gold  on  any  customs  or  laws  of  Mexico. 

Meantime,  and.  in  fact,  until  her  admission  into  the  Union  as  a  State. 
California  was  governed  by  military  authorities  (Cross  vs.  Harrison.  16 
How.  U.  S.  191).  Except  to  provide  for  the  delivering  and  taking  of 
mails  at  certain  points  on  the  Coast,  no  federal  act  was  passed  with  reference 
to  California  in  any  relation:  in  no  act  of  Congress  was  California  even  men- 
tioned after  its  annexation,  until  the  Act  of  March  3(1.  1849.  extending  the 
revenue  laws  of  the  United  States  "over  the  territory  and  waters  of  Upper  Cali- 
fornia, and  to  create  certain  collection  districts  therein."  Though  in  thi.s 
act  incidentally  the  new  acquisition  is  called  a  "territory."  no  act  of  congress 
was  ever  passed  erecting  a  territorial  form  of  government  in  California.  The 
Act  of  March  3d.  1849.  not  only  did  not  extend  the  general  laws  of  the  I'nited 
States  over  California,  but  did  not  even  create  a  local  tribunal  for  its  enforce- 
ment, but  provided  that  the  District  Court  of  Tonisiana  and  the  Supreme  Court 
of  Oregon  .should  be  courts  of  original  jurisdiction  to  take  cognizance  (~»f  all 
violations  of  its  provisions.  Not  even  the  Act  of  the  9th  of  September.  1850. 
admitting  California  into  the  Union,  extended  the  general  laws  of  the  ITnited 
States  over  the  State  bv  express  provision.     Not  until  the  Act  of  September 


284  History  of  the  Bench  and  Bar  of  California. 

28th,  1850.  establishing  a  District  Court  in  the  State,  was  it  enacted  by  con- 
gress "that  all  the  laws  of  the  United  States  which  are  not  locally  inapplicable 
shall  have  the  same  force  and  effect  within  the  said  State  of  California,  as  else- 
where within  tlie  United  States." 

FRKP;   MINING. 

Though  no  general  federal  laws  were  extended  by  the  Congress  over  the 
late  acquisitions  from  Mexico  for  more  than  two  years  after  the  end  of  the 
war,  the  paramcnint  title  to  the  public  lands  had  vested  in  tlie  federal  govern- 
ment bv  virtue  of  the  provisions  of  the  treaty  of  peace,  and  the  public  land 
itself  had  become  part  of  the  j)ublic  domain  of  the  United  States.  (The  Su- 
preme Court  of  California  did  afterward,  when  first  organized,  in  Hicks  vs. 
BqII.  3  Cal.,  219.  attempt  bv  certain  obiter  dicta  to  put  forth  the  doctrine 
of  the  paramount  title  being  in  the  State  of  California,  but  this  attempt 
at  judicial  legislation  was  soon  after  abandoned  and  reversed.)  The  army 
of  occupation,  howexer.  offered  no  opposition  to  the  invading  army  of  pros- 
pectors. The  miners  were  in  1849  twenty  years  ahead  of  the  railroad  and  the 
electric  telegraph  and  the  telephone  had  not  yet  been  invented.  In  the  parlance 
of  the  times,  the  prospectors  "had  the  drop  on  the  army."  In  Colonel  Mason's 
unifjue  report  of  the  situation  that  confronted  him,  discretion  waits  upon 
\-alor.  "The  entire  gold  district."  he  wrote,  "with  few  exceptions  of  grants 
made  some  years  ago  by  the  Mexican  authorities,  is  on  land  belonging  to  the 
United  States.  It  was  a  matter  of  serious  reflection  with  me  how  I  could  secure 
to  the  government  certain  rents  or  fees  for  the  privilege  of  procuring  this 
gold ;  but  upon  considering  the  large  extent  of  the  country,  the  character  of  the 
people  engaged,  and  the  small  scattered  force  at  my  command,  I  am  resolved 
not  to  interfere,  but  permit  all  to  work  freely."  It  is  not  recorded  whether 
the  resolute  Colonel  was  conscious  of  the  humor  of  his  resolution. 

"Persons  who  have  not  given  this  subject  special  attention,"  said  Senator 
Stewart  of  Nevada,  addressing  the  United  States  Senate  in  support  of  the 
Bill  of  1866,  "can  hardly  realize  the  wonderful  results  of  this  system  of  free 
mining.  The  incentive  to  the  pioneer  held  out  by  the  reward  of  a  gold  or  silver 
mine,  if  he  can  find  one,  is  magical  u^xdu  the  sanguine  temperament  of  the 
prospector.  For  near  a  quarter  of  a  century  a  race  of  men,  constituting  a 
majority  by  far  of  all  the  miners  of  the  West,  patient  of  toil,  hopeful  of  suc- 
cess, deprived  of  the  associations  of  home  and  family,  have  devoted  them- 
selves, with  untiring  energy,  to  sinking  deep  shafts,  running  tunnels  thousands 
of  feet  in  solid  granite,  traversing  deserts,  climbing  mountains,  and  enduring 
every  conceiva1)le  hardship  and  privation,  exploring  for  mines,  all  founded  upon 
the  idea  that  no  change  would  be  made  in  this  system  that  would  deprive  them 
of  their  hard-earned  treasure.  Some  of  these  have  found  valuable  mines,  and 
a  sure  prospect  of  wealth  and  comfort  when  the  appliances  of  capital  and  ma- 
chinery shall  be  brought  to  their  aid.  Others  have  received  no  compensation 
but  anticipation — no  reward  but  hope.     ...      I  assert,  and  no  one  familiar 


History  of  the  Bench  and  Bar  of  California.  285 

with  the  subject  will  question  the  fact,  that  the  sand  plains,  alkaline  deserts 
and  dreary  monuments  of  rock  and  sagebrush  of  the  great  interior,  would 
have  been  as  worthless  today  as  when  they  were  marked  by  geographers  as  the 
Great  American  Desert,  but  for  this  system  of  free  mining  fostered  by  our  own 
neglect,  and  matured  and  perfected  by  our  generous  inaction." 

CALIFORNIA  COMMON  LAW  OF  MINKS. 

The  prospectors  and  miners  were,  then,  at  the  start,  simply  trespassers  upon 
the  public  lands  as  against  the  government  of  the  United  States,  with  no  laws 
to  guide,  restrain  or  protect  them,  and  with  nothing  to  fear  from  the  military 
authorities.  They  were  equal  to  the  occasion.  "Finding  themselves  far  from 
the  legal  traditions  and  restraints  of  the  settled  East,"  says  the  report  of  the 
Public  Lands  Commission  of  1880,  "in  a  pathless  wilderness,  under  the  feverish 
excitement  of  an  industry  as  swift  and  full  of  chance  as  the  throwing  of  dice, 
the  adventurers  of  1849  spontaneously  instituted  neighborhood  or  district  codes 
of  regulations,  which  were  simply  meant  to  define  and  protect  a  brief  possessory 
ownership.  The  ravines  and  river  bars  which  held  the  placer  gold  were  value- 
less for  settlement  or  home-making,  but  were  splendid  stakes  to  hold  for  a 
few  short  seasons  and  gamble  with  nature  for  wealth  or  ruin. 

"In  the  absence  of  State  and  Federal  laws  competent  to  meet  the  novel  in- 
dustry, and  with  the  inbred  respect  for  equitable  adjustments  of  rights  between 
man  and  man,  which  is  the  inheritance  of  centuries  of  English  common  law, 
the  miners  only  sought  to  secure  equitable  rights  and  protection  from  robbery 
by  a  simple  agreement  as  to  the  maximum  size  of  a  surface  claim,  trusting,  with 
a  well-founded  confidence,  that  no  machinery  was  necessary  to  enforce  their 
regulations  other  than  the  swift,  rough  blows  of  public  opinion.  The  gold- 
seekers  were  not  long  in  realizing  that  the  source  of  the  dust  which  had 
worked  its  way  into  the  sands  and  bars,  and  distributed  its  precious  particles 
over  the  bed-rocks  of  rivers,  was  derived  from  solid  cjuartz  veins,  which  were 
thin  sheets  of  mineral  material  inclosed  in  the  foundation  rocks  of  the  country. 
Still  in  advance  of  any  enactments  by  legislature  or  congress,  the  common 
sense  of  the  miners,  which  had  proved  strong  enough  to  govern  with  wisdom 
the  ownership  of  placer  mines,  rose  to  meet  the  question  of  lode  claims,  and 
decreed  that  ownership  should  attach  to  the  thing  of  value,  namely,  the  thin, 
sheet-like  veins  of  quartz,  and  that  a  claim  should  consist  of  a  certain  horizontal 
block  of  the  vein,  however  it  might  run,  but  extending  indefinitely  dowmward 
with  a  strip  of  surface,  on  or  embracing  the  vein's  outcrop,  for  the  placing  of 
necessary  machinery  and  buildings.  Under  this  theory,  the  lode  was  the 
property,  and  the  surface  became  a  mere  easement. 

"This  early  California  theory  of  a  mining  claim,  consisting  of  a  certain 
number  of  running  feet  of  vein  with  a  stri])  of  land  covering  the  surface  length 
of  the  claim,  is  the  obvious  foundation  for  the  federal  legislation  and  present 
system  of  public  disposition  and  private  ownership  of  the  mineral  lands  west 
of  the  Missouri  River.     Contrasted  with  this  is  the  mode  of  disposition  of 


286  History  of  the  Bench  and  Bar  of  California. 

mineral-bearing"  lands  east  of  the  Missouri  River,  where  the  common  law  has 
been  the  one  rule,  and  where  the  surface  tract  has  always  carried  with  it  all 
minerals  vertically  below  it. 

"The  great  coal,  iron,  copper,  lead,  and  zinc  wealth  east  of  the  Rocky  moun- 
tains, have  all  passed  with  the  surface  titles,  and  there  can  be  little  doubt  that 
if  California  had  been  contiguous  to  the  eastern  metallic  regions,  and  its 
mineral  development  progressed  naturally  with  the  advance  of  home-making 
settlements,  the  power  of  common  law  precedent  would  have  governed  its 
whole  mining  history.  But  California  was  one  of  those  extraordinary  historic 
exceptions  that  defy  precedent  and  create  original  modes  of  life  and  law.  And 
since  the  developers  of  the  great  precious  metal  mining  of  the  far  West  have 
for  the  most  part  swarmed  out  of  the  California  hive,  California  ideas  have 
not  only  been  everywhere  dominant  over  the  field  of  industry,  but  have  stemmed 
the  tide  of  federal  land  policy  and  given  us  a  statute-book  with  English  common 
law  in  force  over  half  the  land  and  California  common  law  ruling  in  the  other." 

"The  discovery  of  gold  in  California,"  says  Justice  Field,  speaking  from  the 
Supreme  Bench  of  the  United  States,  "was  followed,  as  is  well  known,  by  an 
immense  immigration  into  the  State,  which  increased  its  population  within 
three  or  four  years  from  a  few  thousand  to  several  hundred  thousand.     The 
lands  in  which  the  precious  metals  were  found  belonged  to  the  United  States, 
and  were  unsurveyed  and  not  open  by  law  to  occupation  and  settlement.    Little 
was  known  of  them  further  than  that  they  were  situated  in  the  Sierra  Nevada 
mountains.     Into  these  mountains  the  emigrants  in  vast  numbers  penetrated, 
occupying  the  ravines,  gulches  and  canyons  and  probing  the  earth  in  all  direc- 
tions for  the  precious  metals,     \\nierever  they  went  they  carried  with  them 
the  love  of  order  and  system  of  fair  dealing  which  are  the  prominent  charac- 
teristics of  our  people.     In  every  district  which  they  occupied  they  framed 
certain  rules  for  their  government,  by  which  the  extent  of  ground  they  could 
severally  hold  for  mining  was  designated,  their  possessory  right  to  such  ground 
secured  and  enforced,  and  contests  between  them  either  avoided  or  deter- 
mined.    These  rules  bore  a  marked  similarity,  varying  in  the  several  districts 
only  according  to  the  extent  and  character  of  the  mines  ;  distinct  provision  being 
made  for  different  kinds  of  mining,  such  as  placer  mining,  quartz  mining,  and 
mining  in  drifts  or  tunnels.     TJiey  all  recognized  discovery,  followed  by  ap- 
propriation, as  the  foundation  of  the  possessor's  title,  and  development  by 
working  as  the  condition  of  its  retention.     And  they  were  so  framed  as  to 
secure  to  all  comers  within  practicable  limits  absolute  equality  of  right  and 
privilege  in  working  the  mines.     Nothing  but  such  equality  would  have  been 
tolerated  by  the  miners,  who  were  emphatically  the  law-makers,  as  respects 
mining  upon  the  public  lands  in  the  State.     The  first  appropriator  was  everv- 
where  held  to  have,  within  certain  well-defined  limits,  a  better  right  than  others 
to  the  claims  taken  up;  and  in  all  controversies,  except  as  against  the  gov- 
ernment, he  was  regarded  as  the  original  owner,  from  whom  title  was  to  be 


History  of  the  Bench  and  Bar  of  California.  287 

traced.  *  '''  *  These  regulations  and  customs  were  appealed  to  in  con- 
troversies in  the  State  Courts,  and  received  their  sanction;  and  properties  to 
the  vakie  of  many  milHons  rested  upon  them.  For  eighteen  years,  from  1848 
to  1866,  the  regulations  and  customs  of  miners,  as  enforced  and  molded  by 
the  Courts  and  sanctioned  by  the  legislation  of  the  State,  constituted  the  law 
governing  property  in  mines  and  in  water  on  the  public  mineral  lands." 
Jennison  vs.  Kirk,  98  U.  S.  453. 

ORIGIN  OF  RULES  .\ND  REGULATIONS. 

There  is  considerable  difference  of  opinion  whether  these  rules  and  regula- 
tions were  the  spontaneous  creation  of  the  miners  of  "  '49  and  the  spring  of 
'50."  Mr.  Gregory  Yale,  in  his  valuable  treatise  on  "Mining  Claims  and 
Water  Rights,"  contends  that  they  are  not,  and  claims  that  Senator  Stewart 
of  Nevada,  in  his  brilliant  letter  to  Senator  Ramsey,  of  Minnesota,  ascribes 
undeserved  merit  to  the  early  miners  in  pronouncing  them  the  authors  of  the 
local  rules  and  customs.  He  does  not,  however,  criticise  the  even  more  positive 
language  of  Chief  Justice  Sanderson  in  the  decision  of  the  case  of  Morton  vs. 
Solambo  Copper  Mining  Company.  He  calls  attention  to  the  similarity  be- 
tween these  rules  and  regulations  and  certain  features  of  the  Mexican  ordi- 
nances, of  the  Spanish  Code,  of  the  regulations  of  the  Stannary  Convocations 
among  the  tin  bounders  of  Devon  and  Cornwall,  and  of  the  High  Peak  Regu- 
lations for  the  lead  mines  of  Derby.  He  says  in  the  earlier  days  of  placer 
digging  in  California  the  large  influx  of  miners  from  the  western  coast  of 
Mexico  and  from  South  America  dictated  the  system  of  work  to  Americans : 
that  the  latter,  with  few  exceptions  from  the  gold  mines  of  North  Carolina  and 
Georgia,  and  from  the  lead  mines  of  Illinois  and  Wisconsin,  were  almost 
entirely  inexperienced  in  this  branch  of  industry;  that  the  Cornish  miners  soon 
spread  themselves  through  the  State,  and  added  largely  by  their  experience, 
practical  sense,  and  industrious  habits,  in  bringing  the  code  into  something  like 
shape.  With  all  deference  due  to  any  opinion  expressed  by  Mr.  Yale,  it 
appears  to  me  that  he  has  in  this  chapter  failed  sometimes  to  distinguish  be- 
tween the  practical  work  in  mining  taught  the  pioneers  by  their  Mexican, 
Chilenian  and  Cornish  associates  and  their  comrades  from  the  southern  gold, 
and  western  lead  states,  and  the  framing  of  rules  and  regulations.  The  hints 
and  suggestions  on  the  pan  and  rocker,  and  long  tom  and  sluice,  do  not 
necessarily  include  instructions  on  a  code  of  mining  in  a  situation  absolutely 
as  novel  to  the  persons  from  whom  they  learned  how  to  mine  as  it  was  to  the 
pioneers  them.selves.  The  mining  land  in  North  Carolina,  Georgia,  Illinois 
and  Wisconsin  is  all  held  under  principles  founded  on  the  common  law  of 
England.  Nor  is  it  necessary  to  hold  with  Mr.  Yale  and  General  Halleck 
that  the  Mexican  system  was  the  foundation  for  the  rules  and  customs  adopted, 
for  in  the  matter  of  lode  claims  that  system  is  the  direct  antithesis  of  the 
California  system,  the  former  recognizing  vertical  ])]anes  through  the  exterior 


288  History  of  the  Bench  and  Bar  of  California. 

boundaries  and  the  latter  recognizing  the  extra-lateral  right.  The  mere  fact 
that  the  Mexican  system  recognized  discovery  as  the  source  of  title  and  devel- 
opment as  the  condition  of  holding  it,  need  not  cause  us  to  jump  to  the  conclu- 
sion that  in  these  respects  the  rules  and  customs  of-  Californians  were  a  con- 
scious imitation  of  the  Mexican  system,  especially  whep  the  two  systems  are  so 
radically  dissimilar  in  other  points.  In  a  region  where  the  only  title  could  ba 
possessory,  and  possibly  temporary,  under  the  law,  what  other  arrangement 
in  these  respects  than  the  one  adopted  could  have  suggested  itself  to  the 
pioneers  ?  May  it  not  be  simply  another  illustration  of  the  fact  that,  with  the 
same  problem  and  the  same  environment,  the  human  mind  has  in  different 
ages  often  arrived  at  the  same  practical  solution.  Even  the  idea  of  the  story 
of  the  Jumping  Frog  of  Calaveras  need  not  necessarily  be  deemed  a  conscious 
imitation  of  its  Boeotian  prototype. 

The  California  pioneers  who  were  Americans  did  not  have  to  learn  the 
science  of  organization  from  their  foreign  associates.  The  instinct  of  organi- 
zation was  a  part  of  their  heredity.  Professor  Macy,  of  Johns  Hopkins  Uni- 
versity, once  wrote:  "It  has  been  said  that  if  three  Americans  meet  to  talk 
over  an  item  of  business,  the  first  thing  they  do  is  to  organize."  This  trait 
is  as  characteristic  as  the  one  of  periodically  saving  the  country  by  assembling 
in  mass  meeting  and  passing  resolutions.  Californians  were  not  the  first  Ameri- 
can early  settlers  upon  the  public  domain  of  the  United  States  who  were  left 
for  a  time  without  statutory  law,  federal  or  local.  The  institutional  beginnings 
of  more  than  one  western  state,  notably  of  Wisconsin  and  Iowa,  furnish  a 
most  interesting  parallel,  and  the  groundwork  of  their  rules  and  regulations, 
except  with  regard  to  the  extra-lateral  right  in  mining,  are  in  many  respects 
absolutely  identical.  The  lead  miners  of  Dubuque  who  on  the  17th  of  June, 
1830,  assembled  around  an  old  cottonwood  log,  stranded  on  an  island,  and 
appointed  a  committee  of  five  miners  to  draw  up  regulations  for  their  govern- 
ment, would  have  been  surprised  to  be  told  in  after  years  that  the  rules  they 
framed  had  any  other  source  for  their  inspiration  than  the  courage,  the  neces- 
sities and  the  resourcefulness  of  intelligent  frontiersmen. 

EARl.V    UriJCS   .\XI)  RKCU'LATIONS. 

"In  the  early  days  of  placer  mining,"  says  Mr.  Hittell,  in  his  'History  of 
California,'  Vol.  3,  Page  252.  "it  was  not  uncommon  to  fix  the  size  of  a  claim 
at  ten  feet  s(|uare;  but  it  was  only  in  very  rich  ground  that  this  quantity  was 
found  to  be  sufficient.  In  poorer  localities  or  where  ground  had  been  once  par- 
tially worked,  the  size  was  usually  one  hundred  feet  scjuare,  though  there  were 
many  variations  according  to  circumstances — the  idea  in  each  case  being  to 
afford  every  man  a  fair  chance  to  accumulate  wealth  and  with  this  object 
in  view  to  gi\e  him  as  much  ground  as  he  could  possibly  use.  The  next  pro- 
vision— and  a  remarkable  and  important  one — was  that  the  claim  could  only 
be  held  while  it  was  being  reasonably  worked.     It  was  usual  to  provide  that 


History  of  the  Bench  and  Bar  of  California.  289 

when  a  claim  was  taken  up,  stakes  should  be  dri\-en  at  the  corners  or  written 
notices  of  appropriation  posted  up  or  an  entry  made  in  a  record  book  open  to 
the  public ;  and  sometimes  several  of  these  modes  or  others  equally  efficacious 
in  giving  information  were  required ;  but  in  all  cases  the  fee  of  the  land  was 
regarded  as  belonging  to  the  government,  and  no  person  could  acquire  any 
ownership  beyond  the  mere  use  for  mining  purposes  and  that  only  while 
being  so  used.  A  very  common  condition  was  that  a  certain  amount  of  work 
should  be  done  within  a  specified  time,  sometimes  a  certain  amount  every  week 
during  the  mining  season ;  or  otherwise  that  the  claim  should  be  liable  to  be 
taken  up  by  anybody  else.  So,  also,  if  a  person  went  away  from  his  claim 
without  leaving  his  tools  or  some  other  understood  evidence  of  an  intention 
of  returning  and  resuming  work.  Here,  again,  it  w^as  the  same  principle  of  the 
equality  of  every  man  and  his  right  to  an  equal  chance  with  his  fellows;  on 
the  one  hand  securing  him  in  his  possession  and  the  fruits  of  his  labor,  but  on 
the  other  hand  offering  to  each  of  his  fellows  the  same  privilege,  if  he 
failed  to  make  use  of  them.  The  condition  under  which  claims  could  be  held  and 
the  circumstances  under  which  they  could  be  forfeited,  together  with  the  size 
of  the  claims  and  the  manner  of  settling  disputes,  constituted  the  chief  points 
embraced  in  what  were  known  as  the  mining  laws  or  mining  customs.  There 
were,  of  course,  variations  in  different  localities.  In  most  cases  the  first  dis- 
coverer or  locator  of  a  mining  region  was  entitled  to  more  ground  than  any 
other  miner,  generally  to  twice  as  much ;  and  in  many  cases,  special  provisions 
were  made  about  sales  and  purchase  of  claims  and  the  authentication  of  bills 
of  sale,  which  were  the  usual  instruments  by  which  claims  were  conveyed. 

"Obviously  no  customs  or  laws  could  be  adopted  without  some  kind  of 
consensus  or  assent  on  the  part  of  the  mining  community.  This  was  at  first  gen- 
erally merely  the  agreement  of  the  particular  company  or  camp,  which  might 
have  its  own  separate  and  distinct  rules  and  regulations  different  from  all  its 
neighbors;  but  by  degrees  meetings  of  the  miners  of  different  camps  and  at 
length  of  whole  neighborhoods  were  held,  until  finally  it  became  common 
to  form  what  are  knowm  as  mining  districts,  embracing  large  tracts  of  territory 
and  to  adopt  laws  applicable  to  and  effective  throughout  the  whole  territory 
so  included.  *  *  *  And  there  were  a  great  many  hundreds  of  them. 
Nearly  every  bar,  flat  and  gulch  had  its  separate  rules.  Their  jurisdictions 
were  frequently  changed,  some  consolidating  into  large  districts  and  others 
dividing  into  smaller  ones — the  changes  being  dependent  chiefly  upon  the 
character  as  to  homogeneousness  or  otherwise  of  the  mining  region  embraced 
and  the  convenience  for  the  miners  of  access  to  a  common  place  of  meeting." 

DKSCRU'TIOK   ()!•    Rfl.l'.S  AND  RKCri.ATlOXS. 

Mr.  Ross  Browne,  in  his  preliminary  report  on  the  Alincral  Resources  of 
the  West,  made  in  1867  (p.  226),  in  describing  tlie  nature  of  the.se  regulations, 
says : 

"It  is  impossible  to  obtain,  within  the  brief  time  allowed  for  this  preliminary 


290  History  of  the  Bench  and  Bar  of  California. 

report,  a  complete  collection  of  the  mining  regulations,  and  they  are  so  nu- 
merous that  they  would  fill  a  volume  of  a  thousand  pages.  There  are  not  less 
than  five  hundred  mining  districts  in  California,  two  hundred  in  Nevada,  and 
one  hundred  each  in  Arizona,  Idaho  and  Oregon,  each  with  its  set  of  written 
regulations.  The  main  objects  of  the  regulations  are  to  fix  the  boundaries  of 
the  district,  the  size  of  the  claims,  the  manner  in  which  claims  shall  be  marked 
and  recorded,  tlie  amount  of  work  which  must  be  done  to  secure  the  title,  and 
the  circumstances  under  which  the  claim  is  considered  abandoned  and  open 
to  occupation  hy  new  claimants.  The  districts  usually  do  not  contain  more  than 
a  hundred  square  miles,  frequently  not  more  than  ten,  and  there  are  in  places 
a  d(^zen  within  a  radius  of  ten  miles.  In  lode  mining,  the  claims  are  usually 
two  hundred  feet  long  on  the  lode;  in  placers  the  size  depends  on  the  character 
of  the  diggings  and  the  amount  of  labor  necessary  to  open  them.  In  hill 
diggings,  where  the  pay  dirt  is  reached  by  long  tunnels,  the  claim  is  usually 
a  hundred  feet  wide,  and  reaches  to  the  middle  of  the  hill.  Neglect  to  work 
a  placer  claim  for  ten  days  in  the  season  when  it  can  be  worked  is  ordinarily 
considered  as  an  abandonment.  The  regulations  in  the  different  districts  are 
so  various,  however,  that  it  is  impossible  to  reduce  them  to  a  few  classes 
comprehending  all  their  provisions." 

The  most  succinct  and  accurate  description  of  the  rules  and  regulations 
of  the  California  miners,  and  especially  of  the  manner  of  marking  the  bound- 
aries of  the  claims,  both  placer  and  lode,  is  from  the  pen  of  Chief  Justice  Beatty 
(Report  Public  Land  Commission,  p.  396)  : 

"When  placer  mining  began  in  California  there  was  no  law  regulating  the 
size  of  claims  or  the  manner  of  holding  and  working  them,  and  local  regula- 
tions by  the  miners  themselves  became  a  necessity.  They  were  adopted,  not 
because  the  subject  was  too  complicated  or  difficult  for  general  regulation,  but 
because  they  were  needed  at  once  as  the  sole  refuge  from  anarchy.  The  first 
and  most  important  matter  to  be  regulated  was  the  size  of  claims,  and  the 
earliest  miners'  rules  contained  little  else  than  a  limitation  f)f  the  maximum 
amount  of  mining  ground  that  one  miner  might  hold.  That  being  deter- 
mined, he  was  left  to  take  possession  of  his  claim  and  work  it  as  he  pleased. 
It  thus  appears  that  the  location  of  a  mining  claim  was  nothing  more  nor  less 
than  the  taking  into  actual  possession  of  a  limited  quantity  of  mining  ground, 
and  this  was  accomplished  by  simply  marking  its  boundaries  and  going  to 
work  inside  of  them.  But  in  taking  possession  of  their  claims  miners  some- 
times failed  to  mark  their  boundaries  as  distinct  or  to  do  as  much  work  on 
them  as  later  comers,  desirous  of  securing  claims  for  themselves,  thought 
essential  to  an  actual  possession.  Hence  arose  disputes  and  violent  conflicts. 
The  next  and  final  step  in  the  development  of  miners'  law  accordingly  was  the 
regulation  of  the  mode  of  marking  the  boundaries  or  otherwise  designating  the 
locality  and  extent  of  claims  and  the  quantum  of  work  that  must  be  done  to 
liold  them.  As  a  fence  around  a  claim  was  utterly  useless,  four  stakes  at  the 
corners  or  two  stakes  at  the  ends  of  the  river  boundary  of  a  placer  claim  were 


History  of  the  Bench  and  Bar  of  California.  291 

usually  allowed  to  be  a  sufficient  marking  of  its  extent;  but,  in  this  connection, 
a  written  notice,  descriptive  of  the  claim  and  containing  the  name  of  the  owner, 
was  sometimes  required  to  be  posted  on  the  ground  and  recorded  by  the  district 
recorder.  Then,  as  it  was  frequently  impossible  to  continue  work  upon  a 
claim  on  account  of  scarcity  or  superabundance  of  water,  and  as  miners  were 
frequently  driven  fron^  the  vicinity  of  their  claims  by  the  severity  of  the  winter 
season,  the  rules  went  on  to  prescribe  the  minimum  number  of  days'  work 
per  annum  by  wdiich  a  claim  could  be  kept  good,  or  the  maximum  of  time 
during  which  the  miner  might  absent  himself  from  his  claim  without  bein^ 
deemed  to  have  forfeited  or  abandoned  it.  In  rare  and  exceptional  instances 
miners  may  have  attempted  to  extend  their  regulations  to  other  matters  than 
those  mentioned,  but  I  risk  nothing  in  saying  that  the  above  satement  embraces 
the  essence  of  all  the  miners'  law  of  the  Pacific  Coast  relating  to  placer  claims. 
After  these  regulations  had  been  some  time  in  force  came  the  discovery  of  veins 
or  lodes  of  gold  bearing  rock  in  place,  and  to  them  the  law  of  the  placers  was 
adapted  with  the  least  possible  change. 

"First — The  size  of  claims  was  regulated  by  allowing  so  many  feet  along 
the  vein. 

"Second — The  mode  of  making  out  or  designating  the  claim  was  pre- 
scribed ;  and 

"Third — The  amount  of  work  necessary  to  hold  it. 

"The  principal  modification  of  the  placer-mining  law  as  adapted  to  lode 
claims  was  upon  the  second  point.  The  placers  were  located  as  surface  claims 
and  were  best  marked  by  stakes  at  the  corners;  notice  and  record,  when  re- 
quired, being  deemed  of  minor  importance.  In  lode  claims  these  conditions 
were  reversed.  The  exact  course  or  strike  of  a  lode  was  seldom  ascertainable 
from  the  croppings  at  the  point  of  discovery ;  and  as  the  claim  was  of  so  much 
of  the  lode  in  whatever  direction  it  might  be  found  to  run,  with  a  strip  of  the 
adjacent  surface,  taken  for  convenience  in  working  the  lode  and  as  a  mere 
incident  or  appurtenance  thereto,  it  was  found  to  be  impracticable  to  mark 
the  claim  by  stakes  on  the  surface,  and  hence  the  notice  and  record  came  to 
play  a  more  important  part  in  designating  the  claim.  They  came  in  fact  to 
be  all-important,  locations  of  lode  claims  being  commonly  made  by  posting  a 
notice  in  reasonable  proximity  to  the  point  at  which  the  lode  was  discovered 
or  exposed,  stating  that  the  undersigned  clamied  so  many  feet  of  the  vein  ex- 
tending so  far  and  in  such  direction  or  directions  from  the  discovery  point, 
together  w^th  the  amount  of  adjacent  surface  ground  allowed  by  the  rules  of 
the  district.  The  notice  so  posted  had  the  effect  under  the  rules  of  holding  the 
ground  described  a  certain  length  of  time,  commonly  ten  days,  within  which 
time  it  was  necessary  to  have  the  notice  recorded  in  the  district  records  in  order 
to  keep  the  claim  good.  This  was  all  that  was  required  under  the  head  of 
marking  or  designating  the  locality  and  extent  of  the  claim,  and  it  was  there- 
after held  by  simply  doing  the  prescribed  amount  of  work.  This  was  the  sum 
total  of  the  California  miners'  law." 


292  History  of  the  Bench  and  Bar  of  California. 

In  view  of  the  historical  importance  of  the  fugitive  records  of  the  local 
rules  and  regulations  of  the  various  mining  districts,  and  as  some  of  the  pro- 
visions of  many  of  them  are,  under  our  peculiar  federal  legislation,  still  in 
force,  I  have,  at  the  risk  of  being  statistical,  endeavored  to  collate  the  names 
of  the  different  districts  and  the  dates  of  adoption  of  the  several  codes  of  rules 
and  regulations,  and  to  point  out  where  authentic  records  thereof  are  extant. 
Where  I  have  not  specifically  referred  to  the  particular  work  from  which  the 
record  is  taken,  it  is  in  all  cases  to  be  found  in  the  invaluable  collection  of  the 
local  rules  and  regulations  of  the  miners  of  California  contained  in  the  official 
Report  of  the  United  States  Census  for  1880,  Vol.  XIV,  pages  271  to  345  in- 
clusive.   The  record  is  as  follows: 

EARLY  MINING  DISTRICTS  OF  CALIFORNIA. 
NEVADA  COUNTY— 

Nevada  county  quartz  regulations,  December  20,  1852.  Extend  over  all 
quartz  mines  and  quartz  mining  property  within  the  county. 

Gold  Mountain  mining  district,  December  30,  1850;  continued  March  17, 
1851 ;  amended  September  29,  1851 ;  last  amendment  repealed  October  5,  1851  ; 
regulations  extended,  September  29,  1852;  regulations  extended  December  15, 
1853- 

Union  Quartz  Mountain  mining  district,  February  30,  1851  ;  amended  May 
24,  1851. 

Kentucky  Hill  mining  district,  May  i,  1851. 

Prospect  Hill  mining  district,  May  i,  1851. 

Saunders  Ledge  mining  district,  June  6,  1851. 

Day's  Ledge  mining  district,  October  21,  1851. 

Lafayette  Hill  mining  district,  November  10,  1851. 

Indian  Springs  Hill  mining  district,  November  17,  1851. 

Jefferson  Hill  No.   i  mining  district,  December  16,   1851. 

Mary's  Diggings  mining  district,  December  31,   1851. 

Rebecca's  Hill  mining  district,  January  3,  1852. 

Wechawken  Hill  mining  district,  June   16,   1852. 

Rockwell  Hill  mining  district,  June  17,  1852. 

Brooklyn  Hill  mining  district,  June  22,  1852. 

Nebold  Hill  mining  district,  June  22,  1852. 

Mount  Olivet  mining  district,  June  25,  i8=;2. 

Union  Hill  No.  2  mining  district,  June  25,  1852. 

Buffalo  Hill  mining  district  (no  date)  ;  transferred  to  book  of  Township 
Recorder,  June  15,  1852. 

Caledonia  Hill  mining  district,  June  29,  1852. 

Pecker's  Hill  mining  district,  June  29,  1852. 

Poppysquash  Hill  mining  district,  June  30,  1852. 

Pierce's  Ledge   (formerly  Indian  Hill)  mining  district,  July  22,  1852. 

Sierra  Nevada  Hill  mining  district,  August  10,  1852. 

Blelhen  Hill  mining  district,  August  21,  1852. 

Mount  Pleasant  mining  district,  October   11,   1852. 

Constitution  Hill  mining  district,  October  12,  1852.  Jumped  and  called  Iowa 
Hill,  April  17,  1854. 

Cedar  Hill  mining  district,  October  17,  1852. 

Washington  Hill  mining  district,  November   15,   1852. 

Boston  Hill  mining  district,  November  21,  1852. 

Norton's  Hill  mining  district,  December  9,  1852. 


History  of  the  Bench  and  Bar  of  California.  293 

Empire  Hill  No.   i   mining  district,  1852. 

Kosciusko  Hill  mining  district,  January  i,  1853. 

Ben.  Franklin  Ledge  mining  district,  January  28,  1853. 

Jefferson  Ledge  mining  district,  February  25,   1853. 

Pyrenees  Hill  mining  district,  September  23,  1853. 

lone  Ledge  mining  district,  August  24,  1854. 

Madison  Quartz  Ledge  and  Hill  mining  district,  August  18,  1855. 

Hoosac  Hill  mining  district,   (no  date). 

Rhode  Island  Hill  mining  district  (no  date). 

Sebastopool  Ledge  mining  district   (no  date). 

Ashville  Hill  mining  district.     Same  regulations  as  Cedar  Hill. 

Oak  Hill  mining  district.     Same  regulations  as  Cedar  Hill. 

Sweetland  mining  district,  1850;  amended  in  1852;  divided  into  three  dis- 
tricts with  separate  regulations  (Hittell's  History  of  California,  Vol.  HI,  page 
260). 

North  San  Juan  Placer  regulations,  November  5,  1854.  (Ross  Browne's 
Mineral  Resources  of  the  West,  1867,  page  240.) 

Albion  Hill,  Gold  Hill  No.  2,  Independence  Ledge,  Kentucky  Fountain 
Ledge,  Lewis  Lead,  North  Point  Ledge,  Oro  Fino  Hill,  Ohio  Hill,  Pine  Hill 
Ledge,  Quimbaugh  Hill,  Richmond  Hill,  Squirrel  Creek  Hill,  St.  Louis  Ledge, 
Texas  Ledge,  and  Trenton  Ledge  mining  districts  are  all  governed  by  the 
county  laws. 

TUOLUMNE  COUNTY— 

Jackass  Gulch  mining  district  (including  Soldier  Gulch),  1848;  regulations 
put  into  writing  in  1851.  (Hittell's  History  of  California,  Vol.  Ill,  page  257; 
Shinn's  Mining  Camps,  page  237.) 

Jacksonville  mining  district,  January  20,  1850.  (The  Public  Domain,  1883, 
page  317;  Hittell's  History  of  California,  Vol.  HI,  page  130.) 

Jamestown  mining  district  (no  date);  laws  repealed  and  new  regulations 
adopted,  1853.     (Hittell's  History  of  California,  Vol.  Ill,  page  258.) 

Springfield  mining  district,  December,  1854.  (Yale's  Mining  Claims  and 
Water  Rights,  page  84;  Hittell's  History  of  California,  Vol.  HI,  page  258;  Shinn's 
Mining  Camps,  pages  238-242.) 

Shaw's  Flat  mining  district  (no  date).  (Hittell's  California,  Vol.  Ill,  page 
259.) 

Sawmill  Flat  mining  district  (no  date).  (Hittell's  California,  Vol.  HI,  page 
259. 

Brown's  Flat  mining  district  (no  date).     (Hittell's  California  Vol.  Ill,  page 

259-) 

Jackson  Flat  and  Tuttletown  mining  district,  November,  1855.  (Yale's 
Mining  Claims  and  Water  Rights,  page  84;  Hittell's  California,  Vol.  Ill,  page 
259;  Shinn's  Mining  Camps,  pages  240-242.) 

Columbia  district  placer  regulations.  (Ross  Browne's  Mineral  Resources 
of  the  West,  1867,  page  238.) 

New  Kanaka  Camp  placer  regulations.  (Ross  Browne's  Mineral  Resources 
of  the  West,  1867,  page  238.) 

Tuolumne  county  quartz  regulations,  in  force  September  i,  1858,  extending 
over  and  governing  all  quartz  mining  property  within  the  county.  (Ross 
Browne's  Mineral  Resources  of  the  West,  1867,  page  237.) 

MARIPOSA  COUNTY— 

Rules  adopted  at  convention  of  quartz  miners  at  Quarlzburg,  June  25,  1851. 
Coulterville  mining  district,  March  5,  1864. 

AMADOR  COUNTY— 

Drytown  mining  district,  June  7,  1851,  consisting  of  all  that  portion  of  the 


294  History  of  the  BoicJi  and  Bar  of  California. 

then  county  of  Calaveras  south  of  the  dividing  ridge  between  the  Cosumnes 
river  and  Dry  creek,  and  north  of  the  Mokelumne  river. 

Volcano  quartz  mining  district,  February  6,  1858.  J.  Tullock  and  F.  Reich- 
ling  the  committee  that  drafted  the  code. 

"Jackson  and  all  other  Veins  of  Metal  District,"  February  7,  1863;  amended 
May  22,  1863. 

Puckerviile  (now  Plymouth)  mining  district,  February  11,  1863.  B.  F. 
Richtmyer,  secretary.  E.  S.  Potter  elected  recorder;  new  regulations  adopted 
at  store  of  F.  Sheaver,  May  23,  1863. 

Clinton  mining  regulations.  (Ross  Browne's  Mineral  Resources  of  the 
United  States,  1868,  page  72>-) 

Pine  Grove  mining  regulations.  (Ross  Browne's  Mineral  Resources  of  the 
United  States,  1868,  page  73.) 

EL  DORADO  COUNTY— 

Grizzly  Flat  mining  district,  February  4,  1852;  amended  February  26,  1853; 
none  of  the  books  containing  records  made  under  the  first  laws  are  in  exist- 
ence ;  amended  and  name  changed  to  Mount   Pleasant  mining  district. 

French  Town  mining  district,  November  12,  1854;  amended  January  3,  1858; 
amended  April  6,  1859;  amended  March  20,  1863. 

Smith's  Flat  mining  district  (no  date  of  adoption  given)  ;  amended  Febru- 
ary 20,  1855 ;  amended  February  12,  1873. 

Spanish  Camp  quartz  mining  district,  April,  1862;  name  changed  to  Agra 
district,  June  14,  1866. 

Diamond  quartz  mining  district,  February  14,  1863. 

Placerville   mining  district,   March   21,    1863. 

El  Dorado  (Mud  Springs)  mining  district,  April  7,  1863. 

Big  Canyon  quartz  mining  district,  November  11,   1865. 

Henry's   Diggings  mining  district,  June,   1867. 

Kelsey  mining  district,  regulations  adopted  May  7,  1873,  in  conformity  with 
the  Mineral  Law  of  Congress  of  May  10,  1872. 

Greenwood  mining  district  (no  date).     No  written  regulations  now  in  force. 

CALAVERAS  COUNTY— 

Angels  mining  district,  July  20,  1855 ;  amended  March  24,  i860.  Record  of 
district  mining  locations  burned  in  1855. 

Murphy's  mining  district,  October  26,  1857. 

Lower  Calaveritas  mining  district,  November  7,  1857 ;  amended  June  28, 
1858;  amended  April  4,  1863. 

San  Andreas  mining  district,  March,  1866;  amended  Article  XVI  (no  date). 

Pilot  Hill  placer  regulations.  (Ross  Browne's  Mineral  Resources  of  the 
West,  1867,  page  241.) 

Copper  Canyon  regulations,  adopted  August  3,  i860.  (Ross  Browne's  Min- 
eral Resources  of  the  West,  1867,  page  242.) 

PLUMAS  COUNTY— 

Warren  Hill  mining  district,  October  22,  1853.     Creed  Haymond,  secretary. 

South  Placer,  quartz  regulations.  (Ross  Browne's  IMineral  Resources  of 
the  United  States,  1868,  page  108.) 

Canada  Hill  quartz  regulations.  (Ross  Browne's  Mineral  Resources  of  the 
United  States,  1868,  page  108.) 

Lone  Star  quartz  regulations.  (Ross  Browne's  Mineral  Resources  of  the 
United  States,   1868,  page  108.) 

SIERRA  COUNTY— 

■  Saint  Louis  mining  district,  July  6,  1856. 
Gibsonville  mining  district,  January  8,  1857. 
Wet  Ravine  mining  district  (no  date). 


History  of  the  Bench  and  Bar  of  California.  295 

Trigaski  Flat  mining  district.  (Yale's  Mining  Claims  and  Water  Rights, 
page  75;  Prosser  vs.  Parks,  18  Cal.,  47.) 

Sierra  county  quartz  mining  district,  June  6,  1859.  Extends  over  all  quartz 
mining  claims  in  the  county. 

BUTTE  COUNTY— 

Rich  Gulch  quartz  mining  district,  November  15,  1851  ;  further  regulations 
May  22,  1852. 

Con  Cow  mining  district,  August  28,  1880. 

Oregon  Gulch  mining  district,  December  29,  1855 ;  placer  regulations 
amended  June  17,  1861 ;  quartz  regulations  amended  August  13,  (no  year  speci- 
fied) ;  both  placer  and  quartz  regulations  amended  February  3,  1872. 

Helltown  and  Centerville  mining  district,  October  11,  1857;  amended  March 
23,  1878. 

Cherokee  Flat  mining  district,  November  19.  1861  ;  amended  September 
23,  1871. 

Forbestown  mining  district,  June  9,  1863. 

Lovelock  mining  district,  April  3,  1865 ;  amended,  probably  after  May  10,  1872. 

Greely  Flat  mining  district,  December  12,  1872. 

Live  Oak  Flat  mining  district,  July  5,  1872. 

Megalia  mining  district,  since  May  10,  1872.  Old  laws  of  the  district  lost 
and  abrogated  by  custom  and  usage  of  the  miners. 

Forks  of  Butte  mining  district,  June  i,  1878. 

Inskip  mining  district.  May  17,  1879. 

Bangor  quartz  regulations.  (Ross  Browne's  Resources  of  the  United  States, 
1868,  page  162.) 

Thompson's  Flat  mining  district,  1851.     The  books  were  lost  in  1857. 

Bidwell's  Bar  mining  district,  1850;  reorganized  1863.  Original  regulations 
and  records  destroyed  by  fire,  1854;  regulations  of  second  organization  also  lost. 

YUBA  COUNTY— 

Upper  Yuba  mining  district,  April  11,  1852. 

Sucker  Flat  mining  district,  January  22,  1855;  adjourned  meeting  January 
25,  1855;  amended  December  31,  1855;  amended  February  10,  1868. 

Ohio  Flat  mining  district,  March  8,  1856;  laws  adopted  March  15,  1856; 
amended  November  12,  1857.     By-laws  adopted  May  15,  1858. 

Odd  Fellows  mining  district.  On  account  of  record  book  containing  laws 
having  been  destroyed,  new  regulations  adopted  September  24,  1864. 

Indiana  Ranch  quartz  mining  district,  April  18,  1857 ;  amended  November 
7,  1857;  amended  March  13,  1864;  amended  April  25,  1878. 

Brownsville  mining  district,  April  7,  i860;  amended  April  7,  1862. 

Empire  mining  district,  January  22,  1863. 

Dobbin's  Creek  mining  district,  March  26,  1864;  approved  April  17,  1864. 

Oregon  Hill  mining  district  (no  date).     First  recording  February  17,  1864. 

Brown's  Valley  mining  district,  February  14,  1852;  repealed  and  new  regula- 
tions adopted  February  14,  1853;  amended  July  31,  1853;  amended  August  8,  1853; 
amended  January  4,  1864;  amended  January  2,  1865;  amended  January  8,  1866; 
amended  January  7,  1867.  (Ross  Browne's  Mineral  Resources  of  the  United 
States,  1868,  pages  155-156;  Shinn's  Mining  Camps,  page  249).  Reorganized, 
May  3,  1870.      (Tenth  Census  of  the  United  States,  1880,  Vol.  XIV,  page  319.) 

TRINITY  COUNTY— 

East  Fork  of  North  Trinity  mining  district,  February  17,  1852. 
Weaver  Creek  mining  district,  June  19,  1852. 
Weaverville  mining  district,  June  7,  1853. 
Democrat  Gulch  mining  district,  September  3.  1856. 


296 


History  of  the  Bench  and  Bar  of  California. 


SISKIYOU  COUNTY— 

Lower  Humbug  Creek  mining  district,  April  7,  1855. 
Oro  Fino  Diggings  mining  district,  February  6,  1856. 
Little  Humbug  Creek  mining  district,  April  8,  1856. 
ALiine  Little  Humbug  Creek  mining  district,  October  8,  1856. 
Hungry  Creek  Diggings  mining  district.  October  24,  1857  ;  amended  January 
27,  1858. 

Empire  mining  district.  February  15.  1864. 

PLACER  COUNTY— 

Illinoistown  mining  district.  March  21,  1863;  amended  Section  4   (no  date). 

Dutch  Flat  mining  district  (no  records  to  be  found). 

Auburn  mining  district  (no  date).  The  old  mining  laws  are  lost  or  de- 
stroyed. 

Yankee  Jim's  mining  district.  Copies  of  the  old  mining  laws  are  still  in 
existence. 

Bath  mining  district   (no  date).     The  old  mining  laws  are  not  to  be  found. 

Forest  Hill  mining  district  (no  date).  "The  district  is  bounded  on  the 
north  by  Shirt-Tail  canyon,  etc."     The  mining  laws  have  been  burned. 

Iowa  Hill  mining  district  (no  date).  The  mining  laws  have  not  been  in  use, 
nor  has  organization  been  kept  up  since  about  1865. 

SACRAMENTO  COUNTY— 

Folsom  quartz  mining  district,  January  22,  1857.  Adopted  at  the  house  of 
Colonel  Russ  on  Prospect  Hill,  in  the  town  of  Russville  (Ashland),  and  "extend 
over  all  quartz  mines  and  quartz  mining  property  within  the  county  of  Sacra- 
mento." 

MONO  COUNTY— 

Bodie  mining  district,  July  10,  i860;  amended  at  the  Taylor  cabin,  August 
10,  1861  ;  amended  at  Burnett's  cabin  June  7,  1862;  amended  at  Leach  and  Mon- 
roe's cabin  June  9,  1862;  amended  November  12,  1862;  amended  at  the  house 
of  J.  Elnathan  Smith.  Jr.,  March  4,  1864:  amended  at  the  house  of  Biderman 
and  Pooler,  October  24,  1864.  six  members  present ;  amended  at  Wand  &  Bar- 
ker's saloon,  October  5,  1865,  one  article  being  adopted  by  a  vote  of  five  to  four 
amended  at  house  of  E.  D.  Barker,  March  3.  1866;  amended  at  house  of  Robert 
Kernahan,  March  4,  1867;  amended  at  house  of  F.  Swenson,  November  13,  1867 
amended  in  saloon  of  J.  C.  Smith,  at  7  P.  M.,  December  30,  1876. 

Blind    Springs    mining    district,    March    23,    1865;    amended    May    4,    1865 
amended  July  8,    1865;   amended   November   18,   1865;   amended   November  25, 
1865  ;  amended  March  20,  1875 ;  amended  March  27.  1875. 

Homer   mining   district,    October   9,    1879;    "adopted   United    States    mining 
law  of  March  10,  1872." 
CONTRA  COSTA  COUNTY— 

Marsh   Creek   mining   district,   May  27,    1865. 
SAN  BERNARDINO  COUNTY— 

Borax  Lake  mining  district,  April  28,  1873. 

Brier  mining  district.  May  3,  1873. 

Cajon  mining  district,  March  19,  1874. 

Upper  Yreka  Creek  mining  district  (no  date). 
Some  of  the  provisions  of  these  rules  and  regulations,  outside  of  the  general 
provisions  already  referred  to,  are  interesting  and  instructive. 

SOME  CHARACTKRISTIC  PROVISIONS. 

In  the  Helltown  District,  in  Butte  County,  for  instance,  all  kinds  of  placer 


History  of  the  Bench  and  Bar  of  California.  297 

mining  existed,  and  the  rules  and  regulations,  among  other  things,  define  and 
prescribe  as  follows  : 

"First — Claims  shall  consist  of  four  classes:  (i)  River  claims.  (2)  Bar, 
bench  or  flat  claims.     (3)   Ravine  claims.     (4)  Hill  claims. 

"Second — River  claims  shall  be  all  that  is  drained,  except  such  parts  of 
the  ground  as  may  be  claimed  previous  to  giving  notice  of  intention  to  drain 
such  ground. 

"Third — Bar,  bench  or  flat  claims  shall  be  one  hundred  feet,  facing  the 
river,  and  shall  extend  at  right  angles  across  such  bar,  bench  or  flat,  across  the 
supposed  channel  to  the  final  raise  of  the  bed-rock. 

"Fourth — Ravine  claims  shall  extend  one  hundred  and  fiftj'  feet  up  or 
down  the  ravine,  and  not  exceed  forty  feet  in  width,  and  may  be  located  in 
the  center  or  on  either  side. 

"Fifth — Hill,  deep  or  coyote  diggings  shall  consist  of  one  hundred  feet  to 
the  man,  running  crosswise  of  the  hill,  through   it,  or  to  unlimited  extent. 

"Sixth — Claims  or  river  bars,  benches  or  flats  that  may  be  worked  by  the 
water  from  the  river  or  creek  shall  be  considered  as  wet  diggings,  and  ravines 
that  are  dependent  on  the  rainy  season  for  water  shall  be  considered  as  dry 
diggings. 

"Seventh — Any  one   holding  a  claim   or  claims   shall   work   the   same   when    . 
workable    as    often    as    one    day    in    each    week,    to    have    them    represented    by 
another,  or  forfeit  his  right  to  them  unless  prevented  by  sickness." 

The  following  taken  from  the  regulations  of  Little  Humbug  Creek  ]\Iining 
District,  in  Siskiyou  County,  throws  a  human  side-light  on  life  in  the  early 
mining  camps : 

"Art.  Vn — Resolved,  That  no  person's  claim  shall  be  jumpable  on  Little 
Humbug  while  he  is  sick  or  in  any  other  way  disabled  from  labor,  or  while  he  is 
absent  from  his  claim  attending  upon  sick  friends." 

The  ease  with  which  rules  and  regulations  could  be  repealed  or  amended 
is  illustrated  in  the  following: 

"Sec.  Vni — The  laws  may  be  altered  or  amended  at  any  meeting  by  a 
majority  present,  providing  there  shall  have  been  notice  of  such  an  alteration 
or  amendment  given  in  the  notice  of  the  meeting  calling  [^."—Regulations  of 
Ohio  Flat  District,  Yuba  County. 

"Article  XH— Any  person  at  any  time  feeling  aggrieved  by  any  of  the  above 
Rules  and  Regulations  and  desirous  to  have  said  Rules  and  Regulations  altered 
or  amended,  may  call  a  meeting  of  the  miners  by  giving  at  least  three  days' 
notice  of  such  intention  by  placing  up  at  least  two  notices  on  the  most  public 
places  in  Gibsonville." — Regulations,  Gibsonville  District,  Sierra  County. 

"Article  XH— No  amendments  or  alteration   shall   be  made   to   these   la\i's 
unless  a  meeting  of  the  miners  of  this  district  be  called  by  notice  posted  in 
three  public  places  within  this  district,  at  least  before  such  meeting  takes  place 
five  days."— £/  Dorado  {Mud  Springs')  District,  El  Dorado  County. 
One  of  the  gems  in  the  collection  is  to  be  found  among  the  regulations  of 
the  Mariposa  District,  in  185 1  : 

"Resolved,  That  we  consider  all  rights  claimed  in  quartz  veins,  subject  to 
the  debts  of  the  claimants  or  owners,  as  absolutely  as  may  be  other  property. 

"Resolved,  .  .  .  Tliat  a  copy  be  furnished  to  our  Senators  and  Repre- 
sentatives  in   Congress. 

"Resolved,  That  for  the  full  and  faithful  maintenance  of  these  Rules  anO 
Regulations  in  our  county  of  Mariposa  we  sacredly  pledge  our  honors  and  our 
lives." 


29  8  History  of  the  Bench  and  Bar  of  California. 

The  humor  of  the  last  resolution  consists  not  so  much  in  the  bombastic  yet 
earnest  imitation  of  the  Declaration  of  Independence  as  in  the  stern  sincerity 
of  the  omitted  word.  The  only  reason  they  did  not  pledge  their  fortunes  was 
because  they  did  not  have  any!    Fortunes  were  what  they  were  hunting. 

In  some  districts  the  penal  regulations  were  no  less  explicit  than  those  for 
the  location,  holding  and  working  of  claims  : 

"Article  XII — Any  person  who  shall  steal  a  mule,  or  other  animal  of  draught 
or  burden,  or  shall  enter  a  tent  or  dwelling  and  steal  therefrom  gold-dust,  money, 
provisions,  goods,  or  other  articles  amounting  in  value  to  one  hundred  dollars 
or  over,  shall,  on  conviction  thereof,  be  considered  guilty  of  felony,  and  suffer 
death  by  hanging. 

"Article  XIII — Should  any  person  wilfully,  maliciously  and  premeditatedjy 
take  the  life  of  another,  on  conviction  of  murder,  he  shall  suffer  death  by 
flanging. 

"Article  XIV — Any  person  convicted  of  stealing  tools,  clothing  or  other 
articles,  of  less  value  than  one  hundred  dollars,  shall  be  punished  and  disgraced 
by  having  his  head  and  eyebrows  close  shaved  and  shall  leave  the  encampment 
within  twenty-four  hours." — Jacksonville  District,  1850,  Tuolumne  County. 

One  of  the  most  instructive  records  of  miners'  meetings  is  that  of  the  meet- 
ing held  Dec.  13,  1853,  in  the  Weaverville  District,  in  Trinity  County: 

"Dr.  Ware  explained  the  object  of  the  meeting  in  a  few  pertinent  remarks. 
He  said  that  McDermot  told  him  on  yesterday  that  unless  he  gave  up  one- 
half  of  the  water  in  the  creek  aforesaid,  that  he,  McDermot,  would  take  a  body 
of  men  and  take  the  water  by  force  of  arms  and  hold  the  same  until  he  and  his 
men  were  whipped  off  the  ground.  His  party  as  above  mentioned  have  taken 
possession  of  the  water,  and  are  holding  it  by  force  of  arms.  In  this  dilemma 
Dr.  Ware  calls  upon  his  fellow-miners  to  assist  him  in  defending  his  rights, 
agreeable  to  the  old  miners'  laws.  They  said  that  this  w^as  a  serious  affair,  but 
they  were  willing  to  defend  the  old  and  established  miners'  laws  and  the  right." 

A  committee  of  five  was  appointed  to  investigate  the  nature  of  the  grievance 

and  examine  the  law  on  the  subject,  and  a  recess  taken.     The  minutes  then 

proceed : 

"Pursuant  to  adjournment  meeting  met  at  i  o'clock,  were  called  to  order 
by  the  chairman,  Mr.  Cameron.  Committee  reported  as  follows,  having  thor- 
oughly investigated  the  laws  and  customs  of  the  miners  of  Weaver :  We  fully 
concur  in  the  opinion  that  Dr.  Ware  is  fully  entitled  to  all  the  water  in  West 
Weaver,  except  four  tom-heads,  which  is  allowed  for  the  bed  of  the  stream ; 
also  that  the  burning  of  his  reservoir,  and  the  destruction  of  his  dam  and  other 
property  and  the  taking  of  his  water  from  his  race  by  force  of  arms  are  mali- 
cious acts,  and  should  not  be  submitted  to  by  those  who  are  in  favor  of  law  and 
order. 

"On  motion,  the  report  was  received  and  the  committee  discharged. 

"On  motion,  it  was  'Resolved,  That  we  assist  Dr.  Ware  in  turning  the  water 
into  his  race  and  that  we  sustain  him  to  the  last  extremity  in  keeping  it  in  the 
race. 

"On  motion,  the  meeting  then  adjourned  for  the  purpose  of  carrying  this 
resolution  into  effect." 

At  this  interesting  point  the  minutes  end,  and  the  reader  is  left  to  imagine 
what  usually  takes  ])lace  when  an  irresistible  force  meets  an  immovable  object. 

As  a  sample  of  regulations  concerning  the  locatidu  of  (juartz  claims,  that 
adopted  for  all  the  quartz  mines  in  Newida  County.  Dec.  20.  1852,  will  suffice: 


History  of  the  Bench  and  Bar  of  California.  299 

"Article  II — Each  proprietor  of  a  quartz  claim  shall  hereafter  be  entitled  to 
one  hundred  feet  on  a  quartz  ledge  or  vein ;  and  the  discoverer  shall  be  allowed 
one  hundred  feet  additional.  Each  claim  shall  include  all  the  dips,  angles  and 
variations  of  the  vein." 

In  Other  counties  the  length  of  a  claim  was  usually  greater  than  in  Nevada, 
but  tlie  dips,  spurs,  angles  and  variations  always  went  with  the  ledge,  and  if 
not  expressly  set  forth  in  the  rules  and  regulations  were  always  included  in 
the  "customs"  of  the  district.  This  was  also  true  of  the  use  of  sufficient  sur- 
face ground  for  the  convenient  working  of  the  claim. 

THE  DOCTRINE  OF  ^CUSTOMS." 

This  doctrine  of  "customs,"  in  its  technical  sense,  as  applied  to  early  Cali- 
fornia mining  operations,  must  not  he  confused  with  the  written  "rules  and 
regulations"  of  miners.  Though  very  serviceable  to  the  early  miner  for  ob- 
vious reasons,  its  possible  and  actual  misuse  at  a  later  day  often  came  back  to 
plague  him.  "These  (customs),"  says  Mr.  Yale,  "grow  up  by  self-creation, 
and  are  not  the  subjects  of  invention  or  provision.  They  may  be  superseded 
when  once  observed  as  obligatory,  and  the  customs  of  one  district  may  have 
controling  force  in  another.  They  are  not  the  ancient  customs  of  the  common 
law,  which,  to  have  force,  must  be  immemorial,  merely  traditional,  and  not  or- 
iginating within  living  memory.  But  they  are  the  usages  which  grow  out  of 
the  regulations  by  practice,  are  appurtenant  to  them,  and  must  be  regarded  and 
enforced  as  an  inherent  part  of  them,  as  explaining,  enlarging  and  defining 
them.  Their  force  is  greater  because  they  are  within  living  memory,  and  as 
no  generation  has  elapsed  since  they  have  existed,  are  as  ancient  as  circum- 
stances will  conveniently  admit."  Their  growth  in  a  community  where  pen, 
pencil  and  paper  were  not  exactly  implements  of  mining,  where  everyone  knew 
his  neighbor,  and  where  everyone  knew  what  transpired  in  camp  each  day, 
was  perfectly  natural ;  and  their  recognition  by  courts  into  whose  presence  the 
rules  and  regulations  of  the  miners  themselves  came  in  the  guise  of  custom, 
in  the  generic  sense  of  the  word,  was  equally  natural. 

STATE  EECxISEATIVE  RECOGNITION. 

In  1851  Stephen  J.  Field,  then  a  member  of  the  Assembly  from  Yuba 
County,  introduced  into  the  legislature  and  had  passed  what  is  commonly 
known  as  the  Practice  Act,  section  621  of  which  (since  re-enacted  as  section 
748  of  the  Code  of  Civil  Procedure)  was  as  follows:  "In  actions  respecting 
mining  claims,  proof  shall  be  admitted  of  the  customs,  usages  or  regulations 
established  and  in  force  at  the  bar  or  diggings  embracing  such  claims;  and  such 
customs,  uses  or  regulations,  when  not  in  conflict  with  the  constitution  and 
laws  of  this  State,  shall  govern  the  decision  of  the  action."  This  was  the  first 
statute  to  take  notice  of  these  customs,  usages  and  regulations,  and  its  enact- 
ment recognized  and,  in  a  sense,  adopted  them  as  the  common  law  of  mines 
and  mining  in  California. 

The  act  of  April  13,  i860,  relating  to  the  conveyance  of  mining  claims, 


300  History  of  the  Bench  and  Bar  of  California. 

also  expressly  recognizes  the  "lawful  local  rules,  regulations  or  customs  of  the 
mines  in  the  several  mining  districts  in  this  State."  This  is  the  only  other 
statutory  recognition  of  these  rules  and  customs  in  California  before  the  federal 
mining  law  of  1866. 

"These  usages  and  customs,''  said  Chief  Justice  Sanderson,  in  1864,  in  con- 
struing Section  621  of  the  Practice  Act,  in  the  case  of  Morton  vs.  Solambo 
Copper  Mining  Co.,  "were  the  fruit  of  the  times,  and  demanded  by  the  neces- 
sities of  communities  who,  though  living  under  common  law,  could  find  therein 
no  clear  and  well-defined  rules  for  their  guidance  applicable  to  the  new  condi- 
tions by  which  they  were  surrounded,  but  were  forced  to  depend  upon  remote 
analogies  of  doubtful  application  and  unsatisfactory  results.  Having  received 
the  sanction  of  the  legislature,  they  have  become  as  much  a  part  of  the  law 
of  the  land  as  the  common  law  itself,  which  was  not  adopted  in  a  more  solemn 
form." 

STATE   SUPREMK   COURT    RECOGNITION   AND   CONSTRUCTION. 

The  State  courts  gave  full  recognition  to  the  rules,  regulations  and  customs 
of  miners,  and  a  large  body  of  our  law  is  made  up  of  the  judicial  interpretation 
and  application  of  these  rules  and  customs,  a  summary  of  the  chief  points  of 
which  will  not  be  amiss.  The  elastic  construction  given  to  these  rules  and  regu- 
lations and  the  sympathetic  construction  given  to  the  customs  and  usages  were 
in  accord  with  the  spirit  of  their  creation,  and  effectively  promoted  justice  in 
the  Arcadian  days ;  but  some  of  the  principles  then  laid  down  became  in  later 
days,  under  other  circumstances,  a  very  Pandora's  box  of  troubles. 

To  ha\'e  the  force  of  law,  a  regulation  must  be  in  force  at  the  time  of  the 
location.  It  does  not,  like  a  statute,  acquire  validity  by  the  mere  enactment, 
but  from  the  customary  obedience  and  acquiescence  of  miners  following  its 
enactment.  It  likewise  becomes  void  by  disuse ;  this  disuse,  however,  must  be 
general ;  it  is  not  sufficient  that  the  rule  has  been  disregarded  or  violated  by  a 
few  persons.  Whether  it  has  fallen  into  disuse  is  a  question  of  fact,  and,  there- 
fore, must  go  to  the  jury. 

Where  a  regulation  has  fallen  into  disuse,  a  custom  reasonable  in  itself 
and  generally  observed,  though  contrary  to  the  regulation,  may  be  proved.  But 
the  written  rules  are  presumed  to  be  in  force,  and  proof  of  a  contrary  custom 
must  be  clear.  The  existence  of  mining  regulations  is  a  fact,  and  must  be 
proved  as  a  fact.  Judicial  notice  will  not  be  taken  of  them.  Upon  the  person 
relying  on  them  lies  the  burden  of  proving  them.  This  is  done  by  producing 
the  original  rules  when  in  writing.  When  it  is  proved  that  the  rules  were 
adopted  and  recognized,  they  become  admissible  in  evidence.  The  fact  that 
the  meeting  at  which  they  were  adopted  was  held  upon  a  day  different  from 
that  named  in  the  notice  thereof,  does  not,  in  the  absence  of  fraud,  render  them 
inadmissible.  And  an  alteration  in  one  article  of  the  regulations  after  their 
adoption  does  not  change  the  legal  effect  of  the  other  articles. 

When  the  written  regulations  are  deposited  with  some  authorized  officer, 


History  of  the  Bench  and  Bar  of  California.  301 

or  recorded  in  his  office,  they  may  not  he  proved  hy  parol  e\'idence.  Other 
evidence,  however,  besides  proof  of  the  written  record  or  of  the  acts  of  a 
miners'  meeting  is  admissible  as  tending  to  prove  the  existence  of  a  particular 
rule.  This  may  be  done  by  establishing  a  custom  or  usage  in  the  district.  The 
custom  of  recording  claims  in  a  district,  while  not  proving  absolutely  the 
existence  of  a  rule  requiring  such  a  record,  tends  to  establish  it.  So  on  a  sub- 
ject as  to  which  the  written  rules,  when  proven,  are  silent,  a  custom  prevailin_g 
in  the  district  may  be  proved;  but  regulations  or  customs  of  another  district 
are  not  admissible  to  vary  such  a  custom  or  the  written  rules. 

The  admissibility  of  mining  regulations  is  not  affected  by  the  shortness  of 
the  time  that  they  have  been  in  force.  The  common  law  rule  as  to  customs  has 
no  application  on  this  point.  A  single  extract  from  the  written  rules  of  a  dis- 
trict may  not  be  proved ;  the  whole  body  of  rules  of  a  district  must  be  offered 
in  evidence. 

When  regulations  have  been  proved,  their  construction,  like  that  of  other 
writings,  is  for  the  court.  But  where  good  faith  is  shown,  a  substantial  com- 
pliance with  them  is  sufficient.  There  is  a  distinction  between  the  local  rule 
made  by  a  few  miners  within  a  district  and  a  mining  regulation  enacted  by 
the  whole  district,  or  a  custom  in  universal  force  throughout  the  district.  The 
former  is  not  binding  upon  the  locator,  unless  he  had  actual  notice  of  its 
existence  or  assisted  in  its  enactment. 

Barringer  and  Adams  on  Mines,  pp.  281-190,  290. 

In  an  action  for  possession  of  a  mining  claim,  where  plaintiff  relied  upon 
a  location  under  certain  written  rules  adopted  by  the  miners  of  the  district, 
which  contained  no  requirements  that  notices  should  be  posted  on  the  claims 
at  the  time  of  the  location,  defendant  may  prove  a  custom  in  the  district  re- 
quiring such  posting  of  notices.  No  distinction  is  made  by  the  statute  (Practice 
Act,  sec.  621)  between  the  effect  of  a  "custom"  or  "usage,"  the  proof  of 
which  must  rest  in  parol,  or  a  "regulation,''  which  may  be  adopted  at  a  miners* 
meeting  and  embodied  in  a  \\ritten  local  law.  The  custom  or  regulation  must 
not  only  be  established,  but  must  1)e  in  force.  A  custom  reasonable  in  itself 
and  generally  observed  will  prevail  as  against  a  written  mining  law  which 
has  fallen  into  disuse.  Whether  the  hiw  is  in  force  at  any  o/rr//  tinie  is  for 
the  jury. 

Harvey  vs.  Ryan,  42  Cal.  626. 

FKDERAL  SUPREMIC  COURT  RKCOGXITION. 

The  Supreme  Court  of  the  United  States  gave  full  recognition  to  the  bind- 
ing force  of  the  local  rules,  regulations,  usages  and  customs  before  the  sanc- 
tion of  federal  statutory  enactment,  and  to  tlio  doctrine  thai  tlicy  constitute  the 
American  common  law  of  mines. 

Sparrow  vs.  Strong,  3  Wall.  97,  decided  in  1865. 

Jennison  vs.  Kirk,  98  U.  S.  453.  decided  in  1878. 


302  History  of  the  Bench  and  Bar  of  California. 

KFFKCT  OF  UXCERTAIIsTTY  OF  TFNURE. 

The  rules,  regulations  and  customs  of  the  miners  were  the  work  of  men 
who  were  prospectors,  and  w'ere  admirably  adapted  for  the  mining  operations 
that  called  them  into  being.  Each  man  and  his  partner  or  partners  worked 
their  own  claim.  When  the  early  placers  w^ere  w'orked  out,  however,  and 
die  development  of  the  mining  industry  demanded  not  so  much  accssi- 
bility  to  the  public  domain  as  capital  for  the  successful  exploitation  of  quartz 
mines,  security  of  title  and  a  declaration  of  federal  policy  with  reference  to  the 
public  mineral  lands  became  paramount.  The  uncertain  character  of  the 
tenure  of  the  land,  too,  reacted  upon  the  mining  population,  made  their  future 
uncertain  and  shifty,  and  prevented  the  home-building  so  essential  to  the 
settling  up  and  development  of  the  mining  sections  of  the  State.  "Their  enter- 
prises," says  Ross  Browne,  "generally  were  undertaken  for  the  purpose  of 
making  the  most  profit  in  a  brief  time.  There  was  no  proper  care  for  a  distant 
future ;  and  without  such  care  no  society  is  sound,  no  State  truly  prosperous. 
If  a  claim  could,  by  hastily  washing,  be  made  to  pay  $io  per  day  to  the  hand 
for  three  months,  or  $6  for  three  years  by  careful  washing,  the  hasty  washing 
was  preferred.  If  a  fertile  valley  that  W'Ould  have  yielded  a  revenue  of  $5 
per  acre  for  century  after  century  to  a  farmer  could  be  made  to  yield  $5  per 
day  to  a  miner  for  one  summer,  its  loam  was  washed  away,  and  a  useless  and 
ugly  bed  of  gravel  left  in  its  place.  The  flumes,  the  ditches,  the  dwellings, 
the  roads,  and  the  towais  were  constructed  with  almost  exclusive  regard  to 
immediate  w-ants.  *  *  *  The  claims  \vere  made  small,  so  that  everybody 
should  have  a  chance  to  get  one ;  but  the  pay-dirt  was  soon  exhausted,  and  then 
there  must  1)e  a  move.  In  such  a  state  of  affairs  miners  generally  could  nor 
send  for  their  families  or  make  elegant  homes.  Living  alone  and  lacking  the 
influences  and  amusements  of  home-life,  they  became  wasteful  and  wild.  Pos- 
sessing no  title  to  the  land,  they  did  nothing  to  give  it  value,  and  were  ready 
to  abandon  it  at  any  moment.  The  farmers,  merchants,  and  other  fixed  resi- 
dents of  the  mining  counties  were  agitated  and  frightened  nearly  every  year 
by  the  danger  of  migration  of  the  miners  to  some  distant  place.  One  year  it 
is  Peru;  another  it  is  British  Columbia,  Idaho,  Reese  River,  Pahranagat  or 
Arizona;  and  it  may  next  be  Brazil,  Liberia,  or  Central  y\frica,  for  all  we 
now. 

EXKCl'TU'K  RKCOM.Mi:XI)ATlOXS  FOR  CONGRKSSIONAL  .\CTlOX. 

Meanw^hile  congress  steadily  pursued  its  policy  of  "generous  inaction." 
The  great  battle  of  whether  California  should  be  admitted  as  a  slave  or  a  free 
state  had  to  l)e  fought  out,  and  all  things  else  had  to  wait.  It  took  longer  to 
admit  California  into  the  Union  than  to  fight  the  Mexican  War.  The  exec- 
utive branches  of  the  government,  however,  never  lost  sight  of  the  necessity 
of  some  definite  federal  legislative  action. 

On  December  4,   1849,  President  Taylor,  in  his  inaugural  message,  after 


History  of  the  Bench  and  Bar  of  California.  303 

stating  that  he  thought  the  establishment  of  a  branch  mint  in  CaHfornia  would 
afford  facilities  to  those  engaged  in  mining  "as  well  as  to  the  government  in 
the  disposition  of  the  mineral  lands,"  says : 

"In  order  that  the  situation  and  character  of  the  principal  mineral  deposits 
in  California  may  be  ascertained,  I  recommend  that  a  geological  and  mineral- 
ological  exploration  be  connected  with  the  linear  surveys,  and  that  the  mineral 
lands  be  divided  into  small  lots  suitable  for  mining,  and  be  disposed  of,  by  sale 
or  lease,  so  as  to  give  our  citizens  an  opportunity  of  procuring  a  permanent 
right  of  property  in  the  soil.  This  would  seem  to  be  as  important  to  the 
success  of  mining  as  of  agricultural  pursuits.'' 

These  recommendations,  so  simple  and  so  just,  were,  however,  not  the 
burden  of  the  official  report  of  Mr.  Ewing,  the  Secretary  of  the  Interior,  who 
had  evidently  had  some  smattering  of  the  Spanish  code  of  mining,  and 
according  to  whom  the  division,  disposition  and  management  of  the  mines 
would  require  much  detail.  It  was  due  to  the  nation,  he  claimed,  that  this 
rich  deposit  of  mineral  wealth  should  be  made  so  productive,  as,  in  time,  to 
pay  the  expense  of  its  acquisition.  He  advocated  the  expediency  of  the  gov- 
ernment furnishing  scientific  aid  and  directions  to  the  lessees  and  purchasers 
of  the  mines  and  establishing  a  mint  in  the  mines,  so  that  the  gold  collected 
could  be  delivered  into  the  custody  of  an  officer  of  the  mint,  and  out  of  the 
amount  so  collected  and  deposited  a  percentage  could  be  deducted,  and  the 
balance  paid  to  the  miner  in  coin,  stamped  bullion,  or  in  drafts  on  the  treasury, 
at  his  option.  "The  gold  in  the  mine,  after  it  is  gathered,  until  brought  into 
the  mint,  should  be  and  remain  the  property  of  the  United  States." 

Senator  Fremont,  five  days  after  the  admission  of  California  into  the  Union, 
introduced  the  first  federal  mining  bill  concerning  the  public  lands  of  the  new 
acquisition.  The  bill  was  a  complicated  one,  and,  in  principle,  contemplated 
the  granting  of  permits,  by  agents  appointed  by  the  government,  to  work 
mines  of  limited  and  specified  quantities,  upon  the  payment  of  a  stipulated 
sum.  The  bill  passed  the  Senate,  but  failed  of  passage  in  the  House.  Sena- 
tor Felch.  chairman  of  the  committee  on  public  lands,  in  the  course  of  the 
debate  on  the  Fremont  l^ill,  offered  a  substitute  which  championed  the  ])rin- 
ciples  of  free  mining,  but  it  was  defeated  in  the  Senate.  Both  in  the  permit 
to  be  obtained  under  the  Fremont  bill,  and  in  the  land  to  be  acquired  under 
the  Felch  bill,  a  placer  was  limited  to  thirty  feet  square,  and  a  mine  to  two 
hundred  and  ten  feet  square,  the  lines  to  be  cardinal  points. 

President  Taylor  died  in  the  fall  of  1850,  and  on  December  2,  1850,  Presi- 
dent Fillmore,  in  his  message  to  Congress,  said  :  "T  also  beg  leave  to  call  your 
attention  to  the  propriety  of  extending  at  an  early  day  our  system  of  land 
laws,  with  such  modifications  as  may  be  necessary,  over  the  State  of  California 
and  the  territories  of  Utah  and  New  Mexico.  The  mineral  lands  of  California 
will,  of  course,  form  an  exception  to  any  general  system  which  may  be  adopted. 
Various  methods  of  disposing  of  them  have  been  suggested.     I  was  at  first 


304  History  of  the  Bench  and  Bar  of  California. 

inclined  to  favor  the  system  of  leasing,  as  it  seemed  to  promise  the  largest 
revenue  to  the  government,  and  to  afford  the  best  security  against  monopolies ; 
but  further  reflection  and  our  experience  in  leasing  the  lead  mines  and  selling 
lands  upon  credit,  have  brought  my  mind  to  the  conclusion  that  there  would 
be  great  difficulty  in  collecting  the  rents,  and  that  the  relation  of  debtor  and 
creditor  between  the  citizens  and  the  government  would  be  attended  with  many 
mischievous  consequences.  I  therefore  recommend  that  instead  of  retaining 
the  mineral  lands  under  the  permanent  control  of  the  government,  they  be 
divided  into  small  parcels  and  sold,  under  such  restrictions  as  to  quantity  and 
time  as  will  insure  the  best  price  and  guard  most  effectually  against  combina- 
tions of  capitalists  to  obtain  monopolies." 

The  first  glimmer  of  congressional  action  with  reference  to  the  mineral 
lands  in  California  was  by  the  Act  of  March  3,  1853,  "for  the  survey  of  public 
lands  in  California,  the  granting  of  pre-emption  rights  therein,  and  for  other 
jnu'poses,"  directing  that  "none  other  than  township  lines  shall  be  surveyed 
A\  here  the  lands  are  mineral  or  are  deemed  unfit  for  cultivation,"  excluding  in 
express  terms  "mineral  lands"  from  the  pre-emption  act  of  4th  September, 
1 84 1,  and  further  interdicting  "any  person"  from  obtaining  "the  benefits  of 
this  act  by  a  settlement  or  location  on  mineral  lands." 

The  Secretary  of  the  Interior,  Caleb  B.  Smith,  in  his  annual  report  for 
1 86 1  (The  Public  Domain,  page  318),  called  the  attention  of  Congress  to 
the  subject  in  the  following  words : 

"The  valuable  and  extensive  mineral  lands  owned  by  the  government  in 
California  and  New  Mexico  have  hitherto  produced  no  revenue.  All  who 
chose  to  do  so  have  been  permitetd  to  work  them  without  limitation.  It  is 
believed  that  no  other  government  owning  valuable  mineral  lands  has  ever 
refused  to  avail  itself  of  the  opportunity  of  deriving  a  revenue  from  the  priA'i- 
lege  of  mining  such  lands.  They  are  the  property  of  the  whole  people,  and 
it  would  be  obviously  just  ancj  proper  to  require  those  who  reap  the  advan- 
tages of  mining  them  to  pay  a  reasonable  amount  as  a  consideration  of  the 
advantages  enjoyed." 

The  Commissioner  of  the  General  Land  Office,  in  his  annual  report  of  1862 
(The  Public  Domain,  page  318),  after  a  review  of  the  area  of  the  precious 
metal  1:)earing  territory  and  the  yield  from  the  mines,  gave  the  following 
opinion  : 

"An  immense  revenue  may  readily  be  obatined  by  subjecting  the  public 
mines  either  to  lease  under  quarterly  payments  or  quarterly  tax  as  seniorage 
upon  the  actual  product,  under  a  well-regulated  and  efficient  system,  which 
would  stimulate  the  energies  of  miners  and  capitalists  by  securing  to  such 
classes  an  undisputed  interest  in  localities  so  specified,  and,  when  the  condi- 
tions as  to  payment  for  the  usufruct  are  complied  with,  for  unlimited  periods, 
and  Avhile  effecting  this  beneficial  results  to  them  would  relieve  the  necessities 
of  the  Republic." 


History  of  the  Bench  and  Bar  of  California.  305 

In  1863,  the  Commissioner  of  the  General  Land  Office,  again  called  atten- 
tion to  the  mineral  lands  (The  Puhlic  Domain,  pages  318-319),  recommending 
legislation  for — "opening  the  mines  and  minerals  of  the  public  domain,  the 
property  of  the  nation,  to  the  occupancy  of  all  loyal  citizens,  subject,  as  far  as 
compatible  with  moderate  seigniorage,  to  existing  customs  and  usages,  conced- 
ing to  the  discoverer  for  a  small  sum  a  right  to  one  mine,  placer  or  lead 
(quartz),  with  a  pre-emptive  right  in  the  same  district  to  an  additional  claim, 
both  to  be  held  for  the  term  of  one  year,  for  testing  the  value."  Collectors  of 
internal  revenue  were  to  be  the  collectors  of  the  royalty. 

In  his  message  of  December  6,  1864,  President  Lincoln  called  the  attention 
of  Congress  to  the  mineral  lands : 

"As  intimately  connected  with  and  promotive  of  this  material  growth  of 
the  nation,  I  ask  the  attention  of  Congress  to  the  valuable  information  and 
important  recommendations  relating  to  the  public  lands  .  .  .  and  mineral 
discoveries  contained  in  the  report  of  the  Secretary  of  the  Interior,  which  is 
herewith  transmitted." 

The  Commissioner  of  the  General  Land  Office,  in  his  report  for  1865,  after 
referring  to  the  fact  that  the  organization  of  a  bureau  of  mining  was  recom- 
mended in  his  last  annual  report,  and  stating  that  there  can  be  no  sufficient 
reason  for  withholding  these  mineral  lands  from  the  market  (The  Public 
Domain,  in  1883,  page  319),  says  : 

"Congress  has  not  legislated  with  a  view'  to  securing  an  income  from  the 
product  of  the  precious  metals  from  the  public  domain.  It  is  estimated  that 
two  or  three  hundred  thousand  able-bodied  men  are  engaged  in  such  mining 
operations  on  the  public  lands,  without  authority  of  law,  wdio  pay  nothing  to 
the  government  for  the  privilege,  or  for  permanent  possession  of  property 
worth,  in  many  instances,  millions  to  the  claimants. 

"The  existing  financial  condition  of  the  nation  obviously  requires  that  all 
our  national  resources  and  the  product  of  every  industrial  pursuit,  should 
contribute  to  the  payment  of  the  public  debt.  The  wisdom  of  Congress  must 
decide  whether  the  public  interest  would  be  better  promoted  by  a  sale  in  fee 
of  these  mineral  lands,  or  by  raising  a  revenue  from  their  annual  product." 

In  the  annual  report  of  the  Secretary  of  the  Treasury  for  the  year  1865, 
the  substitution  of  an  absolute  title  in  fee  for  the  indefinite  possessory  rights 
or  claims  under  which  the  mines  were  held  by  ])rivate  parties  was  earnestly 
recommended  : 

"The  attention  of  Congress  is  again  called  to  the  importance  of  early  and 
definite  action  upon  the  subject  of  our  mineral  lands,  in  which  subject  are 
involved  questions  not  only  of  revenue,  but  social  questions  of  a  most  interest- 
ing character.  Copartnership  relations  between  the  government  and  the  miners 
will  hardly  be  proposed,  and  a  system  of  leasehold,  (if  it  were  within  the  consti- 
tutional authority  of  Congress  to  adopt  it,  and  if  it  were  consistent  with  the 
character  and  genius  of  our  people,)  after  the  lessons  which  have  been  taught 


306  History  of  the  Bench  and  Bar  of  California. 

of  its  practical  results  in  the  lead  and  copper  districts,  cannot  of  course  be 
recommended. 

''After  giving  the  subject  as  much  examination  as  the  constant  pressure 
of  official  duties  would  permit,  the  Secretary  has  come  to  the  conclusion  that 
the  best  policy  to  be  pursued  with  regard  to  these  lands  is  the  one  which  shall 
substitute  an  absolute  title  in  fee  for  the  indefinite  possessory  rights  or  claims 
now  asserted  by  miners.  The  right  to  obtain  'a  fee  simple  to  the  soil'  would 
invite  to  the  mineral  districts  men  of  character  and  enterprise;  by  creating 
homes  (which  will  not  be  found  where  title  to  property  cannot  be  secured),  it 
would  give  permanency  to  the  settlements,  and,  by  the  stimulus  which  owner- 
ship always  produces,  it  would  result  in  a  thorough  and  regular  development 
of  the  mines. 

"A  bill  for  the  subdivision  and  sale  of  the  gold  and  silver  lands  of  the 
United  States  was  under  consideration  by  the  last  Congress,  to  which  attention 
is  respectfully  called.  If  the  enactment  of  this  bill  should  not  be  deemed 
expedient,  and  no  satisfactory  substitute  can  be  reported  for  the  sale  of  these 
lands  to  the  highest  bidder,  on  account  of  the  possessory  claims  of  miners, 
it  will  then  be  important  that  the  policy  of  extending  the  principle  of  pre- 
emption to  the  mineral  districts  be  considered.  It  is  not  material,  perhaps, 
how  the  end  shall  be  attained,  but  there  can  be  no  question  that  it  is  of  tlie 
highest  importance  in  a  financial  and  social  point  of  view,  that  ownership  of 
these  lands,  in  limited  quanties  to  each  purchaser,  should  be  within  the  reach 
of  the  people  of  the  United  States,  who  may  desire  to  explore  and  develop 
them." 

FIRST  FEDERAL  LEGISIvATlVE  RECOGNITION. 

No  action  by  Congress  even  indirectly  recognized  the  conditions  under 
which  the  miners  had  taken  possession  of  the  mines  until  that  Act  of  February 
27,  1865,  providing  for  a  District  and  Circuit  Court  for  the  district  of  Nevada, 
the  ninth  section  of  which  provides  as  follows  : 

"No  possessory  action  between  individuals  in  any  of  the  courts  for  the 
recovery  of  a  mining  title,  or  for  damages  to  any  such  title,  shall  be  afifecte<l 
by  the  fact  that  the  paramount  title  to  the  land  on  which  such  mines  lie  is  in 
the  United  States,  but  each  case  shall  be  adjudged  by  the  law  of  possession." 

The  only  other  two  instances  before  the  general  law  of  1866,  where  Con- 
gress recognized  |X)ssessory  rights  or  rules  of  miners,  or  granted  a  fee  in 
mineral  lands,  were  local  in  their  character  and  application;  one  was  section  2 
of  the  Act  of  May  5,  1866,  (14  U.  S.  Stat,  at  Large,  43),  concerning  bounda- 
ries of  the  State  of  Nevada;  and  the  other  was  the  Act  of  July  25,  1866,  (  14 
U.  S.  Stat,  at  Large,  242),  commonly  known  as  the  Sutro  Tunnel  Act. 

INTRODUCTION  OF  LODE  LAW  OF   1 866. 

On  May  28,  1866,  Senator  Conness,  chairman  of  the  committee  on  mines 
and  mining  in  the  United  States  Senate,  reported  back  to  that  body  Senate 


I 


History  of  the  Bench  and  Bar  of  California.  307 

bill  No.  257,  entitled  "An  Act  to  regulate  the  occupation  of  mineral  lands, 
and  to  extend  the  right  of  pre-emption  thereto,"  and  recommended  the  passage 
of  a  substitute.  In  his  report,  he  took  strong  grounds  against  all  measures 
for  the  sale  of  the  mines  to  the  highest  bidders  and  for  the  taxation  of  those 
engaged  in  working  them.  He  claimed  that  it  was  the  first  duty  of  Congress 
to  set  at  rest  all  doubts  and  apprehensions  affecting  mining  property  by  the 
promulgation  of  a  policy  which  should  give  full  and  complete  protection  to 
all  existing  possessory  rights  upon  liberal  conditions,  w4th  full  and  complete 
legal  guarantees,  and  which  should  provide  the  most  generous  conditions  look- 
ing toward  further  explorations  and  developments.  He  especially  commends 
the  features  of  the  bill  recognizing  the  rules  and  regulations  of  the  miners : 

"Another  feature  of  the  bill  recommended,"  says  the  report,  "is,  that  it 
adopts  the  rules  and  regulations  of  the  miners  in  the  mining  districts  where 
the  same  are  not  in  conflict  with  the  laws  of  the  United  States.  This  renders 
secure  all  existing  rights  of  property,  and  will  prove  at  once  a  just  and  popular 
feature  of  the  new  policy.  Those  'rules  and  regulations'  are  well  understood, 
and  form  the  basis  of  the  present  admirable  system  in  the  mining  regions; 
arising  out  of  necessity,  they  became  the  means  adopted  by  the  people  them- 
selves for  establishing  just  protection  to  all. 

"In  the  absence  of  legislation  and  statute  law,  the  local  courts,  beginning 
with  California,  recognize  those  'rules  and  regulations,'  the  central  idea  of 
which  was  priority  of  possession,  and  have  given  to  the  country  rules  of 
decision,  so  equitable  as  to  be  commanding  in  their  national  justice,  and  to 
have  secured  universal  approbation.  The  California  reports  will  compare 
favorably,  in  this  respect,  with  history  of  jurisprudence  in  any  part  of  the 
world.  Thus  the  miners'  'rules  and  regulations'  are  not  only  well  understood, 
but  have  been  construed  and  adjudicated  for  now  nearly  a  quarter  of  a  century. 
It  will  be  readily  seen  how  essential  it  is  that  this  great  system,  established  by 
the  people  in  their  primary  capacities,  and  evidencing  by  the  highest  possible 
testimony,  the  peculiar  genius  of  the  American  people  for  founding  empire 
and  establishing  order,  shall  be  preserved  and  affirmed.  Popular  sovereignty 
is  here  displayed  in  one  of  its  grandest  aspects  and  simply  invites  us  m^t  to 
destroy,  but  to  put  upon  it  the  stamp  of  national  power  and  unquestioned 
authority." 

LEGISLATIVE  HISTORY  OE  THE  HILL. 

The  legislative  history  of  the  passage  of  this  bill,  which,  after  certain 
arriendments  went  upon  the  statute-book  as  the  general  lode  mining  law  of 
July  26,  1866,  under  a  very  anomalous  title,  is  the  history  of  a  battle  royal  in 
the  favor  of  the  lasting  interests  of  the  Western  gold-producing  regions.  I 
have  taken  the  account  of  it  from  Yale's  valuable  work  on  "Mining  Claims 
and  Water  Rights,"  pages  10  to  12.  but  have  not  had  the  opportunity  to  verify 
from  the  original  official  records  the  account  there  given. 

"The  miners  of  California,"  says  Mr.  Yale,  writing  in   1867,  "and  the 


308  History  of  the  Bench  and  Bar  of  California. 

States  and  Territories  adjacent  thereto,  have  but  a  very  inadequate  idea  of 
the  imminent  peril  in  which  the  pursuit  in  which  they  are  engaged  was  placed 
at  the  commencement  of  the  Thirty-ninth  Congress.  Two  years  ago  there 
was  a  strong  disposition  in  Congress  and  the  East,  generally,  to  make  such 
a  disposition  of  the  mines  as  would  pay  the  national  debt.  The  idea  of  reliev- 
ing the  nation  of  the  payment  of  the  enormous  taxes  which  the  war  has 
saddled  upon  us  by  the  sale  of  the  mines  in  the  far  distant  Pacific  Slope,  about 
which  few  ])eople  here  have  any  knowledge  whatever,  was  the  most  popular 
that  was  perhaps  ever  started — compelling  other  people  to  liquidate  our  obli- 
gations, has  l)een  in  all  ages  and  in  all  nations  a  highly  comfortable  and  popu- 
lar proceeding.  There  were  some  at  the  time  of  which  I  write  who  would 
not  be  satisfied  with  the  sale  of  the  mines.  They  held  that  even  after  the 
sale  the  government  should  be  made  a  sharer  in  the  proceeds  realized  from 
them.     The  first  bill  on  the  subject  was  introduced  in  the  Senate  by  Mr.  \ 

Sherman,  of  Ohio,  and  in  the  House  by  Mr.  Julian,  of  Indiana.     Both  of  ij 

these  bills  contained  the  most  odious  features.  Sherman's  bill  went  to  the 
committee  on  public  lands,  of  which  Mr.  Stewart  was  a  member.  After  much 
consideration,  it  was  understood  that  the  committee  would  report  adversely. 
Julian's  l)ill  received  a  much  more  favorable  consideration  in  the  House.  Tn 
fact,  the  House  went  so  far  as  to  pass  a  resolution  endorsing  legislation  sub- 
stantially of  the  character  contemplated  in  Julian's  bill.  After  much  canvass- 
ing, Mr.  Conness  and  Mr.  Stewart  came  to  the  conclusion  that  it  was  no  longer 
safe  to  act  on  the  defensive,  and  that  it  was  necessary  to  determine  what 
legislation  would  be  acceptable,  and  to  make  a  bold  move  to  obtain  it.  The 
Secretary  of  the  Treasury  was  then  one  of  the  strongest  advocates  of  the  sale 
of  the  mines,  and  appeared  to  be  under  the  impression  that  it  would  yield  a 
large  revenue.  The  movement  thus  far  had  been  encouraged  by  him,  and  it 
was  thought  that  a  partial  success  of  his  views  would  be  more  satisfactory  to 
him  than  an  entire  defeat.  Mr.  Conness  accordingly  suggested  to  him  to  have 
a  h\\\  prepared  in  his  department,  which  would  avoid  the  odious  provisions 
of  the  other  two  propositions,  and  get  some  Senator  to  introduce  it,  assuring 
him  that  a  liberal  measure  would  receive  the  favorable  consideration  of  the 
Pacific  delegation.  The  result  was  that  the  secretary  had  prepared  the  second 
bill,  introduced  by  Mr.  Sherman,  which  was  a  great  gain  on  the  first  bill. 
This  bill  went  to  the  committee  on  mines,  of  which  Mr.  Conness  was  chair- 
man and  Mr.  Stewart  a  member.  After  much  discussion,  these  two  Senators 
were  appointed  a  committee  to  draft  a  substitute,  which,  after  several  weeks 
of  close  study,  resulted  in  the  reporting  of  a  bill  substantially  the  same  as 
the  one  which  is  now  the  law.  At  this  time  it  was  not  expected  that  it  would 
be  possible  to  do  more  than  to  get  a  report  of  the  committee  in  favor  of  the 
measure,  wliich  it  was  thought  would  be  an  advanced  affirmative  position, 
from  which  the  granting,  selling  or  other  calamitous  disposition  of  the  mines 
could  be  successfully  withstood.  Upon  making  the  report,  however,  it  was 
determined  to  put  on  the  boldest  front  possible,  and  try  and  pass  it  through 


History  of  the  Bench  and  Bar  of  California.  309 

the  Senate.  It  came  up  on  the  i8th  day  of  June,  1866,  and  at  first  had  but 
two  warm  advocates — its  authors.  The  discussion  occupied  the  entire  day, 
Mr.  Stewart  supporting  the  bill.  Mr.  McDougall  first  favored  the  bill,  and 
then  made  a  speech  against  it.  Mr.  Williams,  of  Oregon,  was  opposed  to  all 
bills  of  the  kind.  Nesmith  contented  himself  with  voting  against  it.  Nye 
opposed  it,  and  said  it  would  be  good  policy  to  let  the  whole  subject  alone, 
and  not  legislate  upon  it  at  all.  This  speech  left  his  real  position  somewhat 
indefinite.  In  the  course  of  the  debate,  however,  it  became  manifest  from 
the  remarks  of  Senators  Sherman,  Buckalew  and  Hendricks,  that  the  real 
merits  of  the  bill  were  beginning  to  be  appreciated  by  the  Senate.  The  two 
authors  of  the  bill  congratulated  themselves  on  this  sign  of  progress,  and 
resolved  to  try  again.  It  was  called  up  again  on  the  28th  by  Mr.  Stewart,  and 
was  debated  by  Senators  Stewart,  Conness,  Sherman,  Hendricks  and  others. 
After  being  amended  slightly  by  Mr.  Stewart,  the  bill  passed  the  Senate. 
When  it  was  first  introduced,  the  bill  had  no  friends  in  the  House,  but  after 
it  passed  the  Senate  some  of  the  Pacific  delegation  began  to  regard  it  favor- 
ably. It  should  have  gone  in  the  House  to  the  committee  on  mines,  of  which 
Mr.  Higby  was  chairman;  but  Mr.  Julian,  who  is  an  old  member,  and  was 
then  chairman  of  the  committee  on  public  lands,  seized  on  the  bill  at  once,  and 
had  it  transferred  to  his  committee.  Then  the  struggle  came  to  get  it  out  of 
that  committee.  Mr.  Stewart  addressed  himself  to  the  members  of  it,  and 
got  every  one  of  them  but  Julian,  but  he  was  intractable.  He  wanted  his 
bill  to  go  first,  and  would  not  let  this  supersede  it.  The  House,  too,  was 
canvassed,  and  was  found  to  be  favorably  disposed,  but  there  was  no  way  of 
getting  at  the  bill.  In  the  meantime,  Higby  had  passed  a  bill  from  the  com- 
mittee on  mines  in  regard  to  ditches.  It  contained  only  three  provisions,  and 
bore  no  resemblance  to  the  bill  in  question,  but  it  related  to  the  same  subject. 
When  this  bill  came  into  the  Senate,  the  mining  bill  was  tacked  on  as  a  sub 
stitute,  and  was  passed.  It  was  then  sent  back  to  the  House,  and  went  on  the 
Speaker's  table.  In  that  condition  it  required  a  majority  to  refer  it.  To  get 
this  majority,  Julian  exerted  all  his  strength,  but  failed.  The  bill  was  passed 
in  the  House  without  amendment,  and  became  a  law.  This  accounts  for  its 
being  entitled  'An  Act  granting  the  right  of  way  to  ditch  and  canal-owners 
through  the  public  lands,  and  for  other  purposes.'  I  had  been  particular 
a])out  hunting  up  all  the  facts  bearing  upon  this  struggle,  for  the  reason  that 
tlie  bill  evolved  from  it  is  the  most  important,  so  far  as  California  is  con- 
cerned, that  has  ever  been  passed  by  Congress.  .  .  .  The  result  of  the 
whole  fight  is  the  grant  of  all  the  mines  to  the  miners,  with  some  wholesc^me 
regulations  as  to  the  manner  of  holding  and  working  them,  which  are  not  in 
conflict  with  the  existing  mining  laws,  but  simply  give  uniformity  and  consist- 
ency to  tlic  whole  system.  The  escape  from  entire  confiscation  was  nuich 
more  narrow  than  the  good  people  of  California  ever  suppo.'^ed.  If  either  of 
the  bills  originally  introduced  had  been  passed,  the  Pacific  States  and  Terri- 
tories would  have  received  a  blow  from  which  thev  would  ne\er  have  recov- 


31U  History  of  the  Bench  and  Bar  of  California. 

eretl.     The  government  could  only  have  receded  after  the  most  irreparable 
and  widespread  damage  had  been  done." 

The  passage  of  this  law  was  heralded  by  the  press  of  the  whole  Pacific 
slope  as  the  greatest  legislative  boon  conferred  upon  it  by  congress  since  the 
admission  of  California  into  the  Union.  The  passage  of  the  bill  certainly 
marked  an  epoch  in  the  history  of  the  State.  Probably  the  most  just  and  sen- 
sible comment  upon  it  is  that  of  the  San  Francisco  Bulletin  in  its  issue  of 
July  31st: 

'"No  measure  of  equal  consequence  to  the  material  and,  we  may  add,  to 
the  moral  interests  of  the  Pacific  states,  was  ever  before  passed  by  congress. 
*  *  *  The  passage  of  the  bill,  whatever  defects  it  may  develop  when 
more  critically  examined  and  enforced,  marks  a  change  in  the  public  land 
policy  equal  in  importance  to  the  adoption  of  the  pre-emption  and  homestead 
system ;  indeed,  its  practical  effect  will  be  to  extend  the  now  unquestionable 
benefits  of  that  system  to  the  vast  field  of  the  mineral  regions  which  have 
hitherto  been  largely  excluded  from  those  benefits.  *  *  *  jj-  ^^^g  ^j-jg 
of  the  greatest  evils  of  the  negative  policy  of  congress  regarding  the  mineral 
lands  that,  while  it  prevented  our  own  people  from  acquiring  titles  to  them,  it 
opened  their  treasures  freely  to  the  transient  adventurers  from  abroad,  who 
only  came  to  take  them  away  without  leaving  any  equivalent.  As  a  measure 
calculated  to  give  homogeneity  and  fixedness  to  our  population,  security  to 
titles,  and  encouragement  to  capital  and  labor,  the  new  mining  law  is  full 
of  promise.  We  believe  it  will  have  the  effect  also  to  stimulate  exploration 
and  production  in  the  mining  districts.  Its  good  features  are  apparent;  its 
bad  ones  will  appear  in  time  and  can  be  easily  remedied." 

I.ODE  LAW  OF  1866. 

The  most  salient  features  of  the  Lode  Law  of  1866  are  contained  in  its 
first  two  sections : 

"Sec.  I.  That  the  mineral  lands  of  the  public  domain,  both  surveyed  and 
unsurveyed,  are  hereby  declared  to  be  free  and  open  to  exploration  and  occu- 
pation by  all  citizens  of  the  United  States,  and  those  who  have  declared  their 
intentions  to  become  citizens,  subject  to  such  regulations  as  may  be  prescribed 
by  law,  and  subject  also  to  the  local  customs  or  rules  of  miners  in  the  several 
mining  districts,  so  far  as  the  same  may  not  be  in  conflict  with  the  laws  of  the 
United  States. 

"Sec.  2.  That  whenever  any  person,  or  association  of  persons  claim  a  vein 
or  lode  of  quartz,  or  other  rock  in  place,  bearing  gold,  silver,  cinnabar,  or  copper, 
having  previously  occupied  and  improved  the  same  according  to  the  local  cus- 
toms or  rules  of  miners,  in  the  district  where  the  same  is  situated,  and  having 
expended  in  actual  labor  and  improvements  thereon  an  amount  of  not  less 
than  one  thousand  dollars,  and  in  regard  to  whose  possession  there  is  no  con- 
troversy or  opposing  claim,  it  shall  and  may  be  lawful  for  said  claimant,  or 
association  of  claimants,  to  file  in  the  local  land  office  a  diagram  of  the  same, 
so  extended  laterally  or  otherwise  as  to  conform  to  the  local  laws,  customs  and 
rules  of  miners,  and  to  enter  such  tract  and  receive  a  patent  therefor,  granting 
such  mine,  together  with  the  right  to  follow  such  vein  or  lode,  with  its  dips, 
angles,  and  variations,  to  any  depth,  although  it  may  enter  the  land  adjoining, 
which  land  adjoining  shall  be  sold  subject  to  this  condition." 


I 


History  of  the  Bench  and  Bar  of  California.  311 

The  remaining  sections,  for  the  most  part,  prescribe  methods  for  giving 
effect  to  the  above,  and  in  Section  4  it  is  provided  that  "the  surveyor-general 
may,  in  extending  the  surveys,  vary  the  same  from  rectangular  form  to  suit 
the  circumstances  of  the  country  and  the  local  rules,  laws  and  customs  of 
miners;  provided,  that  no  location  hereafter  made  shall  exceed  two  hundred 
feet  in  length  along  the  vein  for  each  locator,  with  an  additional  claim  for 
discovery  to  the  discoverer  of  the  lode,  with  right  to  follow  such  vein  to 
any  depth,  with  its  dips,  variations  and  -angles,  together  with  a  reasonable 
quantity  of  surface  for  the  convenient  working  of  the  same,  as  fixed  by  the 
local  rules;  and  provided,  further,  that  no  person  may  make  more  than  one 
location  on  the  same  lode,  and  no  more  than  three  thousand  feet  shall  be 
taken  in  any  one  claim  by  any  association  of  persons." 

This  law  of  1866  was  more  important  as  marking  an  era  in  the  land  policy 
of  the  government  than  as  an  effective  means  of  settling  mining  titles.  In 
fact,  we  are  sometimes  tempted  to  believe  that  was  the  only  good  that  came 
of  it.  It  banished  forever  the  specters  of  governmental  licenses,  leases,  taxes 
on  industry,  royalties,  and  confiscation.  The  miner  drew  a  long  breath. 
Where  before  he  had  been  legally  a  trespasser  he  was  now  free  to  explore  and 
occupy  the  public  domain  and  had  a  free  right  to  mine.  All  the  rights  which 
he  had  acquired  under  his  system  of  local  rules,  regulations  and  customs  were 
explicitly  recognized  as  property,  as  the  possessory  right  to  mine,  and  were 
confirmed  to  him.  The  local  rules,  regulations  and  customs  which  limited, 
defined  and  accompanied  all  the  rights  he  claimed  were  adopted.  And  he 
could,  whenever  he  desired,  transform  this  possessory  right  to  mine  (except 
as  to  placers)  into  a  perpetual  estate  in  the  mineral  lodes  themselves,  together 
.with  sufficient  land,  for  the  convenient  working  thereof. 

The  method  provided  for  obtaining  a  patent  w^as  simple  enough.  No  pro- 
vision, however,  was  made  as  to  how  a  mining  claim  should  be  located,  no 
uniform  rule  established  as  to  what  work  should  be  done  to  hold  possession 
of  a  claim.  Those  matters,  as  well  as  the  amount  of  surface  ground,  were  to 
be  fixed  by  the  local  rules  and  customs.  The  extra-lateral  right  was  given 
without  mention  of  top  of  apex  of  the  vein  or  lode.  No  mention  was  made 
of  end  lines.  Were  any  needed,  and,  if  so,  how  must  they  be  drawn?  Was 
there  any  relation  between  the  surface  granted  for  working  and  the  boinidaries 
of  the  lode?  If  patent  could  issue  for  only  one  lode,  what  comprised  the  IckIc? 
Ignorance  of  geology  sometimes  on  the  part  of  the  land  department,  some- 
times on  the  part  of  the  judiciary,  and  sometimes  on  the  part  of  the  miner, 
had  more  to  do  with  the  confusion  that  came  of  the  law  of  1866  than  perhaps 
any  other  cause. 

ONK-I/)DE  AND  M.\NY-I,OnK  TIIKORIKS. 

What  is  the  lode?  The  fights  between  the  champions  of  the  one-lode 
theory  and  the  many-lode  theory,  both  before  and  after  the  passage  of  the 
act  of  1866.  have  caused  the  expenditure  of  millions  of  dollars  in  the  most 


312  History  of  the  Bench  and  Bar  of  California. 

vexatious  litigation.  The  incorporation  of  tliat  one  word  "lode"  into  the 
statute  of  1866  brought  with  all  the  undetermined  controversies  concerning 
it.  One  of  the  main  sources  of  the  lawsuits  was  the  doubt  whether  the  Com- 
stock  lode  had  at  its  side  a  number  of  branches,  or  whether  it  was  one  of 
a  series  of  independent  and  ])arallel  lodes  within  a  distance  of  two  hundred 
yards.  The  one-lode  theory  finally  prevailed.  The  definition  of  a  lode  given 
in  the  Eureka-Richmond  case  (4  Sawy.  302),  a  case  involving  the  construc- 
tion of  rights  accruing  under  the  law  of  1866,  is  as  follows:  "We  are  of 
the  opinion  that  the  term  [lode]  as  used  in  the  acts  of  congress  is  applicable 
to  any  zone  or  belt  of  mineralized  rock  lying  within  boundaries  clearly  sepa- 
rating it  from  the  neighl)oring  rock.  It  includes  *  *  *  all  deposits 
of  mineral  matter  found  through  a  mineralized  zone,  or  belt,  coming  from  the 
same  source,  impressed  with  the  same  forms,  and  appearing  to  have  been 
created  by  the  same  process."  When  the  width  of  the  Mother  Lode  of  Cali- 
fornia varies  from  that  of  a  knife-blade  to  eight  hundred  feet,  and  more, 
we  realize  what  kind  of  an  inconstant  variable  instead  of  a  straight  line  a 
surveyor  has  to  deal  with,  something  of  which  the  land  department  did  not 
seem  to  have  had  the  slightest  conception. 

Under  section  three  of  the  act  no  patent  could  in  any  case  issue  for  more 
than  one  vein  or  lode.  As  there  was  nothing  in  the  statute  to  prevent  another 
from  locating  within  a  certain  distance  of  the  original  locator,  there  w'as  no 
legal  method  of  preventing  the  presence  of  undesirable  neighbors.  A  black- 
mailer might  locate  an  adjacent  outcrop  of  the  same  lode,  and  the  original 
locator  might  have  upon  his  shoulders  a  suit  involving  all  the  horrors  of  a 
one-lode  and  many-lode  contest.  The  only  alternative  would  be  to  buy 
out  the  subsequent  locator.  The  original  locator  might,  through  ill  luck, 
locate  some  spur  of  a  valuable  lode  and  thus  attract  to  make  a  location  in  his 
immediate  neighborhood  some  one  who  would  otherwise  never  dream  of 
locating  there.  The  latter  might  show  by  underground  workings  his  to  be 
the  lode  proper  and  the  original  location  only  a  spur,  and  then,  under  some 
facile  proof  of  local  rule  or  custom  giving  him  all  "spurs"  as  well  as  dips, 
angles  and  variations,  oust  the  prospector  but  for  whose  discovery  he  would 
himself  never  have  located.  There  being  no  provision  for  side  lines,  this 
clause  of  the  law  of  1866  was  also  an  open  invitation  to  men  with  wealth  and 
without  conscience  to  locate  in  the  immediate  neighborhood  alongside  of  a 
valuable  ledge  located  by  a  man  who  was  poor,  offer  him  their  own  price  for 
his  claim,  and,  if  he  refused  to  accept,  deliberately  sink  a  shaft  more  or  less 
vertical  to  take  what  did  not  belong  to  them,  and  while  they  were  enriching 
themselves  offer  to  give  up  the  ledge  upon  the  geological  proof  of  its  owner- 
ship which  the  law  required  and  which  they  knew  was  utterly  beyond  the 
financial  power  of  their  victim  to  supply. 

RICLATION  OF  SURF.\CE  TO  I.ODK. 

The  law  of  1866  intended  to  carry  out  the  idea  of  the  early  rules  and 
customs  that  the  lode  was  the  principal  thing  and  the  surface  a  mere  incident. 


History  of  the  Bench  and  Bar  of  California.  ;^13 

It  provided,  however,  that  the  patent  should  issue,  among  other  things,  "upon 
the  payment  to  the  proper  officer  of  five  dollars  per  acre."  That  word  "acre" 
is  the  first  shadow  of  the  cloud  no  bigger  than  a  man's  hand.  If  the  statute 
had  prescribed  that  the  lode  was  to  be  a  gift,  and  that  five  dollars  an  acre 
must  be  paid  for  any  incident  surface  ground,  or  if  it  had  placed  a  fixed  price 
upon  every  so  many  linear  feet  of  lode,  together  with  so  many  dollars  an 
acre  on  any  incident  surface  ground,  it  would  have  disclosed  a  more 
conscious  purpose  to  keep  the  two  properties  absolutely  distinct.  But  to 
prescribe  that  the  mine  should  be  paid  for  at  five  dollars  an  acre  was  to  bring 
an  English  common-law  habit  of  thought  unnoticed  into  a  strange  environ- 
ment. Inasmuch  as  there  was  no  relationship  whatever  between  the  surface 
and  the  dimensions  of  the  lode,  most  of  the  district  rules  had  no  provisions 
whatever  for  the  size  of  the  tract  of  surface  land  to  be  used.  By  custom 
or  rules  in  most  districts  the  miner  simply  used  what  surface  he  needed  and 
claimed  a  possessory  right  to  only  so  much  as  he  actually  occupied.  The  land 
department  honestly  made  an  attempt  to  carry  out  this  provision  of  the  law, 
and  in  doing  so,  while  itself  showing  an  ignorance  of  the  topography  of  the 
country  in  its  instructions  concerning  end  lines,  laid  down  a  rule  for  the 
computation  of  areas  that  would  have  required  every  deputy  miner  surveyor 
to  be  an  expert  geologist.  The  instructions  provided  for  the  establish- 
ment of  end  lines  at  right  angles  to  the  ascertained  or  apparent  general  course 
of  the  lode,  and  permitted  the  applicant  to  apply  for  patent  to  a  lode  without 
any  inclosing  surface,  the  estimated  quantity  of  superficial  area  in  such  cases 
being  equal  to  a  horizontal  plane,  bounded  by  the  given  end  lines  and  the 
walls  on  the  side  of  the  lode.  Why  at  right  angles,  gentlemen  ?  Simply  to 
faciltate  an  arithmetical  calculation. 

As  a  result  of  these  instructions,  patents  were  issued  describing  a  small 
area  of  surface,  which  was  occupied  by  the  miner  in  connection  with  his 
improvements,  within  which  area  a  portion  of  the  lode  was  included,  the 
remainder  of  linear  feet  claimed  being  indicated  by  a  straight  line  extending 
beyond  the  defined  surface  and  in  the  direction  and  to  the  extent  claimed. 
The  patents  issued  for  the  Idaho  mine  at  Grass  Valley,  and  the  Maximillian 
mine  at  Sutter  Creek  are  examples.  The  patents,  like  the  statute,  did  not 
provide  for  bounding  planes  at  the  end  of  the  lode, — they  simply  ignored  the 
difficulty.  When  the  courts  of  last  resort  came  to  construe  these  patents, 
however,  they  ignored  the  jealousy  with  which  the  nn'ncr  always  divorced 
property  in  the  lode  from  any  relation  to  the  measurements  of  surface  areas 
occupied,  ruled  that  both  end  and  side  surface  lines  were  contemplated  by 
the  provisions  of  the  law  of  1866,  and  that  the  miner  luidcr  the  patent  was 
not  permitted  to  follow  the  vein  on  its  strike  beyond  the  surface  boundaries. 
The  cloud  had  already  grown  considerably  larger  than  a  man's  hand.  Under 
this  ruling  the  direction  of  the  .surface  end  lines  became  of  enormous  interest 
to  the  locator,  because  through  them  hereafter  were  to  be  drawn  his  end-line 


314  History  of  the  Bench  and  Bar  of  California. 

boundary  planes.     The  miner  had  been  learning  something  of  lode  mining 
himself  in  the  meantime,  and  had  come  to  realize  the  extreme  importance 
to  him  of  the  direction  of  those  end-line  boundary  planes  as  the  only  means 
of  saving  the  "rake"  of  his  ore  shoots,  while  here  was  a  land  department 
placidly  directing  its  surveyors  to  establish  end  lines  at  right  angles  to  the 
lode,  in  seeming  utter  geologic  ignorance  of  the  very  existence  of  rake  or 
ore-shoot.       Under   instructions    from   the   land   department,    and,    in   many 
instances,   through   the   ignorance   of   the  miners   themselves,   patents   were 
under  the  law  of  1866  issued  in  many  a  fantastic  shape,  from  that  of  a  horse- 
shoe to  that  of  an  isosceles  triangle,  with  heroic  attempts  in  many  instances 
to  draw  the  end  lines  not  simply  at  right  angles  to  the  general  course  of  the 
lode,  but  at  right  angles  to  the  local  trend  at  the  respective  ends  of  the  linear 
measurement  on  the  lode.     In  the  case  of  such  patents  the  resultant  extreme 
convergence,  or  unthinkable  divergence,  of  the  end  lines  produced  constrained 
the  courts,  although  they  granted  extra-lateral  rights  in  all  other  ordinary 
cases  of  divergence,  to  deny  extra-lateral  rights  altogether.     The  same  result 
took  place  where  the  miner,  through  mistake,  as  in  the  case  of  the  Flagstaff 
mine  in  Utah,  made  his  location  across,  instead  of  with,  the  strike  of  his  lode. 
Under  the  decisions  of  the  courts,  the  extent  of  the  surface  tract  became  of 
an  importance  never  dreamed  of  at  the  time  of  the  passage  of  the  act.      It 
is  idle  to  speculate  now  whether  it  was  ever  necessary  at  all  on  the  part  of 
the  courts  to  establish  any  relation  between  the  surface  and  the  extent  of  the 
lode  in  order  to  give  the  miner  the  full  benefit  of  the  terms  of  the  act.     For 
good  or  for  evil,  the  judicial  legislation  had  been  (l«me.     It  is  very  doubtful 
whether  the  significance  of  what  had  been  done  was  fully  realized  at  the  time. 
The  size  of  the  tract  was  still,  however,  under  the  terms  of  the  act,  dependent 
upon  the  local   rules  and  customs,  and,   under  the  circumstances,   the  very 
facility  with  which  these  could  be  changed  or  wiped  out  altogether,  which 
had  been  one  of  their  main  recommendations  in  the  days  of  shifting  placer 
and  early  lode  mining,  now  became  one  of  the  chief  dangers.     Customs  could 
be  established  to  affect  the  very  size  of  the  tracts  asked  to  be  patented.     All 
provisions  about  how  a  mining  claim  could  be  located  at  all  were  still  depend- 
ent on  these  transient  and  unstable  rules  and  customs.     It  was  one  thing  to 
recognize  by  law  the  locations  already  made  and  the  rights  already  accrued 
under  these  rules  and  customs  operating  naturally,  but  it  was  quite  another 
thing  to  make  them  the  basis  for  future  locations  to  be  recognized  by  the  law. 
"What   are   these   mining   customs   to   which   the   law   pays   such   sweeping 
respect?"  bursts  out  Dr.  Raymond  in  1869  (Mineral  Resources,  page  221). 
"They  are  edicts  passed  at  twenty-four  hours'  notice  by  mass  meetings  of  from 
five  to  five  hundred  men;  it  requires  no  more  formalities  to  abolish  or  amend 
them  than  it  did  to  make  them — a  notice  posted  on  a  door,  a  'mass  meeting' 
next  day,  and  the  thing  is  done.     The  records  of  titles  are  kept  by  an  officer 
called  the  recorder,  not  known  to  the  law,  nor  ansv^^erable  for  malfeasance 


History  of  the  Bench  and  Bar  of  California.  315 

in  office,  except  that  if  he  were  known  to  tamper  with  the  books  in  his  charge 
his  Hfe  might  be  taken  by  the  party  wrongefl.  Tlie  records  are  kept  in  a 
few  districts  in  fire-proof  offices  and  in  suitable  form,  but  more  frequently 
in  small  blank-books,  pocket-books,  or  scraps  of  paper,  stowed  away  under 
the  counter  or  behind  the  flour-barrel  or  the  stove  of  a  store  or  bar-room." 

NO  UNIFORMITY  OF  CONDITIONS  OF  POSSESSION. 

Moreover,  there  was  no  uniformity  of  the  conditions  upon  which  posses- 
sory titles  depended,  especially  in  the  matter  of  the  necessary  work  to  be  done 
to  hold  the  claim.  This  again  was  all  made  to  depend  on  the  local  rules  and 
customs,  and  they  were,  upon  this  subject,  very  lax  and  of  all  varieties.  The 
report  of  a  committee  made  to  the  Senate  of  the  State  of  Nevada  on  February 
23,  1866,  as  accurately  described  the  situation  in  California  as  that  in  Nevada : 

"In  one  district  the  work  required  to  be  done  to  hold  a  claim  is  nominal ; 
in  another  exhorbitant ;  in  another  abolished;  in  another  adjourned  from  year 
to  year.  A  stranger,  seeking  to  ascertain  the  law,  is  surprised  to  learn  that 
there  is  no  satisfactory  public  record  to  which  he  can  refer;  no  public  officer 
to  whom  he  may  apply  who  is  under  any  bond  or  obligation  to  furnish  him 
information  or  guarantee  its  authenticity.  Often  in  the  newer  districts,  he 
finds  there  is  not  the  semblance  of  a  code,  but  a  simple  resolution,  adopting 
the  code  of  some  other  district,  which  may  be  a  hundred  miles  distant." 

PLACER  EAW  OF  JULY   26,    1 866. 

Obviously,  the  law  of  1866  needed  amending  in  many  particulars,  if  it 
was  to  be  of  any  other  practical  good  than  the  declaration  of  a  governmental 
policy.  There  was  in  the  statute  no  provision  providing  for  the  patenting 
of  placer  claims.  The  first  amendment  was  the  statute  of  Jnly  9,  1870,  pro- 
viding for  the  patenting  of  placer  claims.  This  amendment  consisted  in  add- 
ing six  new  sections  to  the  Act  of  July  26,  1866.  The  first  section  of  the 
amendment  contains  the  pith  of  the  new  Act : 

"That  claims  usually  called  'placers,'  including  all  forms  of  deposit,  except- 
ing veins  of  quartz,  or  other  rock  in  place,  shall  be  subject  to  entry  and  patent 
under  this  act,  under  like  circumstances  and  conditions,  and  upon  similar  pro- 
ceedings as  are  provided  for  vein  or  lode  claims;  provided,  that  where  the  lands 
have  been  previously  surveyed  by  the  United  States,  the  entry,  in  its  exterior 
limits,  shall  conform  to  the  legal  subdivision  of  the  public  lands,  no  further 
survey  or  plat  in  such  case  being  required,  and  the  lands  may  be  paid  for  at 
the  rate  of  two  dollars  and  fifty  cents  per  acre;  provided,  further,  that  legal 
subdivisions  of  forty  acres  may  be  subdivided  into  ten-acre  tracts;  and  that  two 
or  more  persons,  or  association  of  persons,  having  contiguous  claims  of  any 
size,  although  such  claims  may  be  less  than  ten  acres  each,  may  make  joint 
entry  thereof;  and,  provided  further,  that  no  location  of  a  placer  claim  here- 
after made,  shall  exceed  one  hundred  and  sixty  acres  for  any  one  person  or 
association  of  persons,  which  location  shall  conform  to  the  United  States  sur- 
veys ;  and  nothing  in  this  section  contained  shall  defeat  or  impair  any  bona-fide 
pre-emption  or  homestead  claim  upon  agricultural  lands,  or  authorize  the  sale 
of  the  improvements  of  any  bona  fide  settler  to  any  purchaser." 


316  History  of  the  Bench  and  Bar  of  California. 

The  further  sections  of  the  amendment  simply  provide  for  the  efifective 
carrying  out  of  these  purposes.  The  land  is  patented  under  the  "square  loca- 
tion" theory,  including  all  contained  within  planes  drawn  vertically  through 
the  exterior  boundaries.  No  difficulties  of  construction  have  ever  been  expe- 
rienced under  this  law,  or  any  of  its  amendments.  (The  provisions  of  this 
amendment  were  by  the  Federal  Act  of  February  ii,  1897,  expressly  extended 
over  public  lands  containing  petroleum  and  other  mineral  oils,  in  order  to 
overcome  the  incorrect  rulings  of  Secretary  of  the  Interior  Hoke  Smith, 
excluding  such  lands  from  its  operation). 

LODK  LAW  OF   MAY    lO,    1 872. 

There  was  no  amendment  of  the  Lode  Law  of  1866  with  reference  to  lode 
claims,  however,  until  the  general  mining  law  of  May  10,  1872,  entitled  "An 
Act  to  promote  the  development  of  the  mining  resources  of  the  United  States." 
This  statute  re-enacted,  with  slight  change,  the  provisions  concerning  placer 
mines.  The  idea  sleeping  in  that  inadvertent  word  "acre"  had  borne  fruit, 
however,  and  in  the  matter  of  lode  claims  the  new  law  made  a  radical  depar- 
ture. The  new  legislation  was  afterwards,  1878,  codified  in  sections  2318  to 
2346  inclusive,  of  the  Revised  Statutes,  and  in  that  form  it  constitutes  the 
present  mining  law  of  the  United  States  with  reference  to  the  public  domain. 

The  salient  features  of  the  law  are  contained  in  three  sections  and  a  portion 
of  a  fourth : 

.  "Sec.  2319.  All  valuable  mineral  deposits  in  lands  belonging  to  the  United 
States,  both  surveyed  and  unsurveyed,  are  hereby  declared  to  be  free  and  open 
to  exploration  and  purchase,  and  the  lands  in  which  they  are  found  to  occupa- 
tion and  purchase,  by  citizens  of  the  United  States  and  those  who  have  declared 
their  intention  to  become  such,  under  regulations  prescribed  by  law,  and  accord- 
ing to  the  local  customs  or  rules  of  miners  in  the  several  mining  districts,  so 
far  as  the  same  are  applicable  and  not  inconsistent  with  the  laws  of  the  United 
States. 

"Sec.  2320.  Mining  claims  upon  veins  or  lodes  of  quartz  or  other  rock  in 
place  bearing  gold,  silver,  cinnabar,  lead,  tin,  copper  or  other  valuable  deposits, 
heretofore  located,  shall  be  governed  as  to  length  along  the  vein  or  lode  by 
the  customs,  regulations,  and  laws  in  force  at  the  date  of  their  location.  A  mining 
claim  located  after  the  tenth  of  May,  eighteen  hundred  and  seventy-two, 
whether  located  by  one  or  more  persons,  may  equal,  but  shall  not  exceed,  one 
thousand  five  hundred  feet  in  length  along  the  vein  or  lode;  but  no  location  of 
a  mining  claim  shall  be  made  until  the  discovery  of  the  vein  or  lode  within  the 
limits  of  the  claim  located.  No  claim  shall  extend  more  than  three  hundred  feet 
on  each  side  of  the  middle  of  the  vein  at  the  surface,  nor  shall  any  claim  be 
limited  by  any  mining  regulation  to  less  than  twenty-five  feet  on  each  side  of  the 
middle  of  the  vein  at  the  surface,  except  where  adverse  rights  existing  on  the 
tenth  day  of  May,  eighteen  hundred  and  seventy-two,  render  such  limitation 
necessary.     The  end  lines  of  each  claim  shall  be  parallel  to  each  other. 

"Sec.  2322.  The  locators  of  all  mining  locations  heretofore  made  or  which 
shall  hereafter  be  made,  on  any  mineral  vein,  lode  or  ledge,  situated  on  the 
public  domain,  their  heirs,  and  assigns,  where  no  adverse  claim  exists  on  the 
tenth  day  of  May,  eighteen  hundred  and  seventy-two,  so  long  as  they  comply 
with  the  laws  of  the  United  States,  and  with  State,  territorial  and  local  regula- 


History  of  the  Bench  and  Bar  of  California.  317 

tions  not  in  conflict  with  the  laws  of  the  United  States  governing  their  posses- 
sory title,  shall  have  the  exclusive  right  of  possession  and  enjoyment  of  all  the 
surface  included  within  the  lines  of  their  locations,  and  of  all  veins,  lodes,  and 
ledges  throughout  their  entire  depth,  the  top  or  apex  of  which  lies  inside  of  such 
surface  lines  extended  downward  vertically,  although  such  veins,  lodes,  or  ledges 
may  so  far  depart  from  a  perpendicular  in  their  course  downward  as  to  extend 
outside  the  vertical  side  lines  of  such  surface  locations.  But  their  right  of  pos- 
session to  such  outside  parts  of  such  veins  or  ledges  shall  be  confined  to  such 
portions  thereof  as  lie  between  vertical  planes  drawn  downward  as  above 
described,  through  the  end  lines  of  their  locations,  so  continued  in  their  own 
direction  that  such  planes  will  intersect  such  exterior  parts  of  such  veins  or 
ledges.  And  nothing  in  this  section  shall  authorize  the  locator  or  possessor 
of  a  vein  or  lode  which  extends  in  its  downward  course  beyond  the  vertical 
lines  of  his  claim  to  enter  upon  the  surface  of  a  claim  owned  or  possessed 
by  another. 

"Sec.  2324.  The  miners  of  each  mining  district  may  make  regulations  not 
in  conflict  with  the  laws  of  the  United  States,  or  with  the  laws  of  the  State  or 
territory  in  which  the  district  is  situated,  governing  the  location,  manner  of 
recording,  amount  of  work  necessary  to  hold  possession  of  a  mining  claim, 
subject  to  the  following  requirements:  The  location  must  be  distinctly  marked 
on  the  ground  so  that  its  boimdaries  can  be  readily  traced.  All  records  of  mining 
claims  hereafter  made  shall  contain  the  name  or  names  of  the  locators,  the  date 
of  the  location,  and  such  a  description  of  the  claim  or  claims  located  by  reference 
to  some  natural  object  or  permanent  monument  as  will  identify  the  claim.  On 
each  claim  located  after  the  tenth  day  of  May,  eighteen  hundred  and  seventy- 
two,  and  until  a  patent  has  been  issued  therefor,  not  less  than  one  hundred 
dollars'  worth  of  labor  shall  be  performed  or  improvements  made  during  each 
year.     ..." 

RADICAL  DEPARTURE  FROM    LAW   OF    1 866. 

The  expressions  "all  valuable  mineral  deposits  and  the  lands  in  which  they 
are  fonnd"  in  section  2319,  and  "all  the  surface  included  within  the  lines 
of  their  locations,"  and  of  "all  veins,  lodes,  and  ledges  throughout  their  entire 
depth,  the  top  or  apex  of  zvhich  lies  inside  of  such  surface  lines  extended  dozvn- 
■icard  vertically/'  in  section  2322,  disclose  the  radical  change,  which  leaves 
no  (juestion  of  the  relationship  between  surface  and  extent  of  lode,  Init  in 
express  language  in  the  statute  rivets  iheni  together.  It  is  not  merely  that 
"lead,  tin  or  other  valuable  deposits"  are  added  to  the  list  of  minerals;  that 
the  maximum  length  of  vein  or  lode  is  1500  linear  feet,  and  the  maximum 
width  of  surface  300  feet  on  each  side  of  the  middle  of  the  vein;  that  the  loca- 
tion must  be  marked  on  the  ground  so  that  it  can  be  readily  traced ;  that  it  is 
prescribed  what  the  record  shall  contain  when  recording  is  recjuired  under 
the  local  rules;  that  not  less  than  one  hundred  dollars'  worth  of  labor  shall 
be  performed,  or  improvements  made  on  each  claim  each  year.  These  changes 
are  important,  and  cured  many  of  the  troubles  encountered  under  the  law  of 
1866,  but  their  significance  is  not  to  be  compared  with  that  introduced  by 
the  doctrine  of  apex.  There  was  now  no  longer  any  question  of  the  absolute 
dependence  of  the  extent  of  the  lode  upon  the  conformation  of  the  surface 
lines.  The  language  is  (section  2320)  :  "No  claim  shall  extend  more  than 
three  hundred  feet  on  each  side  of  the  center  of  the  vein."  not  "no  incidental 


318  History  of  the  Bench  and  Bar  of  California. 

surface  shall  extend,  etc."  "The  end  lines  of  each  claim  shall  be  parallel  to 
each  other,"  and  the  courts  have  since  decided  that  the  miner  would  lose  all 
extra-lateral  rights  of  the  lode  on  the  dip  unless  the  end  lines  are  parallel. 
That  settled  the  question  of  a  relation  between  surface  and  lode.  There  could 
be  no  mistaking-  the  cloud  now. 

By  this  law  all  patentees  of  one-lode  under  the  law  of  1866  became  the 
owners  of  all  other  lodes  within  the  surface  area  of  their  claims,  with  the  same 
extra-lateral  rights  as  to  such  adjacent  lodes  as  could  have  been  accjuired  under 
the  new  law.  The  danger  of  blackmail,  through  lateral  locations,  too,  w^as 
removed  to  a  distance  of  300  feet.  What,  however,  were  to  be  the  rights 
of  a  locator  on  a  lode  whose  width  was  actually  more  than  six  hundred  feet 
allowed  as  the  surface  width  of  a  claim?  Is  the  adherence  to  the  doctrine 
of  the  relation  of  surface  area  to  the  lode  to  be  so  absolute  as  to  actually  shut 
off  a  portion  of  the  lode  itself,  or  in  such  case  is  the  effect  of  the  courses  of 
the  boundary  lines  to  be  limited  simply  to  the  question  of  the  end-line  planes? 

THE  LAW  OF  THE  APEX. 

I  am  not  going  to  discuss  the  doctrine  of  the  apex  or  attempt  to  point  out 
any  great  number  of  new  and  important  questions  that  have  come  up,  and 
must  yet  necessarily  come  up  for  construction  under  it,  arising  out  of  the 
geological  and  other  conditions  that  will  have  to  be  met.  That  would  mean 
an  exposition  of  the  law,  instead  of  a  history  of  it.  A  full  discussion  of  the 
law  itself  will  be  found  in  Dr.  R.  W.  Raymond's  masterly  monograph  on  "The 
Law  of  the  Apex,"  and  Judge  Curtis  H.  Lindley's  conscientious  and  scholarly 
treatise  on  "The  Law  of  Mines."  I  am  trying  to  point  out  the  historical  fact 
that  there  was  a  change,  and  the  historical  significance  of  that  change.  In 
other  words,  to  obtain  any  rights  under  the  law  of  1872,  a  prospector  must 
not  simply  find  or  attempt  to  locate  a  lode.  The  apex  of  that  lode  must  be 
within  his  surface  boundaries,  or  he  gets  no  rights  whatever,  and  whenever, 
through  his  mistake,  no  matter  how  natural,  the  apex  crosses  any  of  the 
surface  boundaries,  he  loses  rights  that  he  would  otherwise  own.  The  posi- 
tion of  the  apex  with  reference  to  the  bounding  lines  becomes  the  touchstone 
of  almost  all  his  rights. 

In  view  of  these  facts,  it  will  not  be  without  profit  to  note  some  of  the 
immediate  difficulties  that  were  inevitable  from  the  working  of  the  law,  when 
it  is  remembered  that  in  the  early  workings  of  a  lode  it  is,  in  many  instances, 
impossible  at  once  to  determine  the  top  or  apex,  course  or  strike,  or  angle  or 
direction  of  the  dip,  of  the  lode.  The  apex,  as  intended  to  be  understood 
in  the  Revised  Statutes,  is,  roughly  speaking,  the  end  or  edge  of  the  vein  on 
or  nearest  the  surface.  In  the  ideal  lode  the  locator  would  have  no  trouble, 
provided  he  get  his  apex  inside  his  boundary  lines  and  his  side  lines  follow 
the  general  course  of  the  lode.  This  general  course,  however,  he  cannot 
always  determine  exactly,  and.  under  the  short  time  allowed  for  locating, 
especially  if  he  must  hurry  to  head  off  other  possible  locators,  he  must  often 


History  of  the  Bench  and  Bar  of  California. 


319 


take  for  granted 


The  apices  of  a  narrow  lode,  especially  in  certain  confor- 
mations of  country,  often  deviate  considerably  from  a  straight  line,  and  it  is 
often  easy  at  first  to  mistake  their  course,  which  is  such  as  to  pass  bevond 
the  side  lines  of  a  claim.  W'e  would  then  not  have  to  look  far  for  complica- 
tions. 


SOME  PROBLEMS  OF  LAW  OE  APEX. 

Chief  Justice  W.  H.  Beatty,  than  whom  no  one  in  the  United  States  is 
more  entitled  to  be  listened  to  with  the  highest  respect  in  questions  of  this  kind, 
early  suggested  a  number  of  such  difficulties,  many  of  which  were  not  long  in 
coming.  Writing  upon  this  point  in  his  testimony  before  the  public  lands 
commission,  November  21,  1879,  while  still  Chief  Justice  of  Nevada,  he  said 
(Report,  page  402)  : 

"Mining  locators  are  granted  the  exclusive  right  of  possession  of  their 
surface  claims,  and  all  veins,  etc.,  the  tops  or  apexes  of  which  lie  inside  of  their 
surface  lines  extended  downward  vertically,  although  such  veins  in  their 
downward  course  may  extend  beyond  the  side  lines  of  the  surface  claim.  No 
locator,  however,  has  the  right  to  go  outside  of  vertical  planes  conforming  to 
his  end  lines,  notwithstanding  the  true  dip  of  his  lode  would  carry  him  beyond. 
In  every  patent  of  mining  ground  a  right  is  reserved  to  other  locators  to 
follow  their  lodes  on  their  downward  course  into  the  ground  so  conveyed. 
(Revised  Statutes,  section  2322.) 


"This  being  the  law,  the  annexed  diagram  illustrates  a  few  of  the  number- 
less difficulties  that  will  occur  in  applying  it  to  surface  locations  that  have  not 
been  made  in  exact  conformity  to  the  true  and  ultimately  ascertained  course 
of  the  lode.     The  line    O  P    represents  the  course  of  a  lode  extending  due 


320  History  of  tJie  Bench  and  Bar  of  California. 

north  and  south,  and  is  supposed  to  be  drawn  between  its  extremities  at  the 
depth  of  a  thousand  feet  from  the  surface.  The  dip  of  the  lode  is  to  the 
west,  and  the  outcrop  appears  at  two  points  x  and  3'.  The  top  or  apex  of 
the  lode  where  it  does  not  reach  the  surface  is  indicated  by  the  dotted  line 
connecting  x  and  3'  and  extending  beyond  in  either  direction.  Long  before 
any  better  means  exist  of  ascertaining  the  true  course  of  the  lode  than  is  fur- 
nished by  its  outcrop  A  makes  a  location  at  x  marked  a  a  a  a,  and  B  makes 
a  location  at  a'  marked  b  b  b  b.  In  due  time  their  claims  are  patented.  Then 
C  discovers  the  lode  at  n  and  makes  his  location  c  c  c  c,  and  later  still  D  and  E 
make  locations  as  indicated,  north  of  A  and  south  of  B  respectively.  The 
straight  dotted  lines  A  a  A  'm  Bb  and  B  'b  indicate  the  sections  of  the  lode 
the  tops  or  apexes  of  which  are  inside  of  the  surface  lines  of  A,  B  and  C 
respectively.  The  dotted  lines  d  a  and  c  a  and  f  b  and  g  b  show  the  sections 
of  the  lode  which  are  included  by  vertical  planes  conforming  to  the  end  lines 
of  A  and  B  respectively. 

"Now  come  the  difficulties.  According  to  my  definition  of  top  or  apex 
of  a  lode,  and  under  what  appears  to  me  the  only  admissible  construction  of 
the  law,  C,  although  he  locates  after  the  patent  to  A  and  B,  is  nevertheless 
the  owner  of  all  that  section  of  the  lode  included  by  the  lines  A  'ni  and  B  b, 
indefinitely  prolonged,  notwithstanding  it  is  mainly  included  from  the  very 
top  in  the  prolongation  of  the  end  lines  of  A  and  B.  C  is  the  owner  because 
he  has  located  the  top  or  apex,  and  A  and  B  are  not  owners  for  the  reason  that 
their  claims  do  not  include  the  top  or  apex  of  this  section.  Supposing  the 
lode  to  be  valuable,  it  can  readily  be  seen  what  controversies  will  arise  as  the 
progress  of  development  begins  to  show  the  true  course  of  the  vein,  and 
enlightens  the  parties  as  to  their  boundary  rights.  Even  without  the  inter- 
vention of  C,  A  and  B  would  come  in  conflict  at  h  in  regard  to  the  widening 
section  /  h  e.  But  in  the  case  supposed,  C  would  restrict  A  to  the  line  A'  m  as 
his  southern  boundary,  and  B  to  the  line  B  ^  as  his  northern  boundary.  By  this 
means  A  and  B,  being  restricted  by  their  end  lines  from  mining  on  the  widening 
section  A  a  d  and  g  b  B',  would  be  completely  cut  off — A  at  2000  and  B  at 
3000  feet  from  the  surface.  Then  this  further  difficulty  w^ould  arise,  that  the 
entire  top  or  apex  of  the  lode  being  included  in  the  various  surface  locations 
of  A,  B,  C,  D  and  E,  there  would  be  no  means  under  the  law^  by  which  the 
widening  sections  A  a  d  and  g  b  B'  could  be  located  or  granted.  The  only 
remedy  would  be  to  cancel  the  patents  of  A  and  B,  and  allow  them  to  readjust 
their  surface  lines.  Before  this,  how^ever,  another  controversy  would  have 
arisen  between  B  and  C,  and  still  another  between  B  and  D,  in  regard  to  the 
excessive  claim  of  B  on  the  course  of  the  lode,  wdiich  it  will  be  seen  extends 
to  a  length  of  about  1600  feet,  w'hereas  the  law  allows  him  at  the  utmost  but 
1500  feet.  These  hints  will  suffice  to  indicate  the  nature  of  the  task  which 
the  commission  have  before  them;  and  having  no  plan  to  suggest  for  meeting 
the  difficulties  in  their  way,  T  take  my  leave  of  the  subject." 


History  of  the  Bench  and  Bar  uf  California.  321 

REASONABLE  TIME   NEEDED   I'OR    MAKKlXr,. 

In  the  provision  for  the  marking  of  exterior  boundaries  upon  the  ground, 
under  the  present  provisions  of  the  law  of  1872,  the  rights  of  the  discoverer 
of  a  vein  are  not  fully  protected.  Unless  he  be  given  a  reasonable  time  to 
mark  his  boundaries  upon  the  ground,  either  under  a  State  statute,  or  a  local 
rule,  or  the  decision  of  the  Supreme  Court  of  the  United  States,  he  may  make 
many  mistakes  vital  to  his  interests.  As  a  matter  of  fact,  the  trend  of  the 
California  decisions  on  this  point  is  against  him,  though  at  the  same  time 
against  the  trend  of  the  decisions  of  almost  all  the  other  States  and  territories 
except  Oregon  (Lindley,  sections  339,  371,  372),  and  of  the  Supreme  Court 
of  the  United  States  (Erhardt  vs.  Boaro,  113  U.  S.,  527).  \Miat  is  a  reason- 
able time?  Even  the  decision  of  the  United  States  Supreme  Court  favoring 
a  reasonable  grant  of  time  is  for  but  a  short  grace  at  best.  A  statute  of  this 
State  was  passed  in  1897,  the  best  point  in  which  was  that  the  discoverer  was 
granted  sixty  davs  after  his  preliminary  location  in  which  to  mark  his  bound- 
aries, but  it  contained  other  provisions,  which  were  considered  cumbersome 
in  practical  working,  and,  under  pressure  of  the  sentiment  in  the  mining 
counties,  was  repealed  in  the  session  of  1899.  As  the  marking  of  his  bound- 
aries is  a  part  of  the  act  of  location,  without  zvhich  the  act  of  location  is  not 
complete,  can  the  discoverer  afford  to  wait,  lest  some  one  else  effect  a  com- 
plete location  before  him?  It  has  been  shown  that  unless  he  is  given  a  reason- 
able time  he  may  mistake  the  position  of  his  apex  and  the  course  of  his  vein. 
But  how  much  would  be  a  reasonable  time  to  ascertain  the  rake  of  his  pay 
shoots,  in  order  that  he  might  slant  his  end  lines  so  as  to  save  as  much  of 
them  as  possible?  Many  a  mine  has  developed  a  pay-shoot  near  either  end, 
and  that  was  all  there  was  of  the  mine,  and  unless  the  discoverer  had  a  chance 
to  draw  his  end  lines  properly,  he  might  lose  the  whole  of  it  in  a  few  hundred 
feet.  Whatever  is  wanting  in  law  in  this  respect  can  be  cured  by  amend- 
ment of  the  statute  itself. 

ABOLITION  OF  RULES,  REGI'LATIONS  AND  CUSTO.MS  ADNOCATED. 

"The  principal,  the  vital  defect  in  the  existing  law,"  says  Chief  Justice 
Beatty  (Report,  page  396),  "is  this  permission  to  make  local  rules.  There 
are,  I  have  reason  to  believe,  other  important  defects  in  the  la\\',  but  as  to  most 
of  these  there  are  more  competent  judges,  and  I  leave  it  to  them  to  point  out 
the  evil  and  suggest  a  remedy.  But  as  to  the  practical  workings  of  the  local 
rules  and  customs  of  miners,  when  allowed  the  force  of  law,  1  have  very  decided 
opinions,  which  I  feel  that  my  means  of  knowledge  justify  me  in  stating  with 
.some  confidence  in  their  correctness.  I  believe  that  the  whole  subject  of 
mining  locations  is  an  extremely  simple  one,  which  may  easily,  and  certainly 
therefore  ought  to  be  regulated  by  one  general  law,  the  terms  and  existence 
of  which  shall  be  established  by  public  and  authentic  records,  and  not  left 
to  be  proved  in  every  case  by  the  oral  testimony  of  witnesses,  or^  by  writing 


322  History  of  the  Bench  and  Bar  of  California. 

contained  in  loose  papers  or  memorandum-books,  such  as  are  often  dignified 
bv  the  name  of  'mining  records.'  I  am  convinced,  moreover,  that  the  tainting 
of  every  mining  title  in  the  land  at  its  very  inception  with  the  uncertainty 
which  results  from  the  actual  or  possible  existence  of  rules  affecting  its  valid- 
ity, perfectly  authentic  evidence  of  which  is  nowhere  to  be  found,  is  a  stupen- 
dous evil.  Experience  has  demonstrated  that  such  an  uncertain  state  of  the 
law  is  a  prolific  source  of  litigation,  and  no  experience  is  required  to  convince 
any  man  of  ordinary  intelligence  that  it  must  have  the  effect  of  depreciating 
the  value  of  all  unpatented  claims  by  deterring  the  more  prudent  class  of  capi- 
talists from  investing  in  them.  That  the  subject  is  simple  enough  to  be 
embraced  in  one  general  law  is  proved  by  the  fact  that  the  laws  of  the  various 
districts,  although  differing  in  details,  are  in  substance  identical,  and  are  sub- 
stantially contained  in  the  existing  acts  of  Congress. 

"What  room  is  left,  then,  for  any  local  regulations  upon  the  only  points 
that  the  miners  have  ever  assumed  to  regulate?     Just  this :    The  miners  may : 

"First — Restrict  themselves  to  smaller  claims  than  the  Act  of  Congress 
allows. 

"Second — Require  claims  to  be  more  thoroughly  marked  than  would  be 
absolutely  necessary  to  satisfy  the  terms  of  the  Act. 

"Third — Recjuire  more  work  than  the  law  requires. 

"Fourth — Provide  for  the  election  of  a  recorder  and  the  recording  of 
claims. 

"As  to  the  first  three  points,  it  may  be  safely  assumed  that  no  such  regu- 
lations will  be  adopted  in  any  district  hereafter  organized.  Mining  districts 
are  organized  by  those  who  discover  valuable  ore  bodies  outside  of  the  limits 
of  existing  districts,  and  these  first  comers  will  be  sure  to  take  all  the  law 
allows  them  to  take,  and  will  do  nothing  on  their  part  to  increase  the  difficulty 
of  holding  what  they  have  got.  Later  comers,  not  being  able  to  deprive  their 
predecessors  of  rights  already  vested,  will  find  their  advantage  in  claiming 
any  new  discoveries  on  terms  as  liberal  as  others  have  enjoyed,  and  it  will 
inevitably  happen  that  the  privileges  of  the  law  will  be  in  no  wise  abridged. 
Permission  to  abridge  them  is  therefore  wholly  superfluous. 

"In  some  of  the  older  organized  districts  the  local  rules  do  restrict  the 
size  of  claims ;  but  in  no  case  within  my  knowledge  do  they  exact  as  much  as 
the  statute  in  regard  to  marking  and  working  claims.  Under  the  regulations 
restricting  the  size  of  claims  in  these  old  districts  rights  have  vested  which 
ought  to  be  protected ;  but  in  amending  the  law,  with  a  view  to  its  prospective 
operation  in  old  as  well  as  new  districts,  nothing  is  to  be  gained  by  permitting 
miners  any  longer  to  regulate  either  the  size  of  claims  or  the  mode  of  mark- 
ing them,  or  the  amount  of  work  to  be  done  on  them.  The  only  effect  of  such 
permission  is  to  make  the  terms  of  the  law  upon  these  important  points  ever- 
lastingly uncertain,  without  the  least  prospect  of  its  ever  being  improved. 

"The  fom-th  i)oint  at  i)resent  left  open  to  regulation  by  the  miners  remains 
to  be  noticed.     All  the  district  rules  with  which  I  am  acquainted  provide  for 


History  of  the  Bench  and  Bar  of  California.  323 

mining  recorders  and  the  recording  of  claims ;  but  under  existing  legislation 
such  rules  are  worse  than  useless.  The  statute,  it  will  be  observed,  does  not 
make  any  notice  or  record  obligatory,  or  define  their  effect.  If  the  miners 
themselves  made  no  regulation  on  the  subject,  claims  would  be  located  by 
simple  compliance  with  the  terms  of  the  statute,  which  contains  in  itself  ample 
provision  for  everything  essential  to  a  location;  i.  e.,  size  of  claim  and  mark- 
ing and  working.  Under  the  statute  the  vein  is  located  by  means  of  a  surface 
claim,  which  not  only  can  be,  but  must  be,  marked  on  the  ground.  When 
this  is  done  all  that  the  notice  and  record  were  ever  intended  or  expected  to 
accomplish  is  effected  in  a  manner  far  more  satisfactory  and  complete.  In 
place  of  a  very  imperfect  and  often  misleading  description  of  the  claim,  there 
is  a  plain  and  unambiguous  notice  to  the  world  of  its  exact  position  and  extent. 
No  reason  exists,  therefore,  for  retaining  in  the  law  a  provision  under  which 
it  may  be  made  obligatory,  by  local  regulations,  to  post  and  record  a  notice 
in  addition  to  the  marking  of  the  ground.  The  monuments  on  the  ground 
do  well  and  completely  what  the  notice  and  record  do  only  imperfectly  and 
in  part. 

"It  may  be  asked  why,  if  this  is  so,  do  the  miners,  who  ought  to  under- 
stand their  own  business,  persist  in  requiring  a  notice  and  record.  The  answer 
is,  that  marking  locations  by  such  means  has  with  a  majority  of  miners  become 
an  inveterate  habit;  and  the  custom,  like  many  other  customs,  outlives  the 
causes  which  called  it  into  existence.  For  twenty  years — from  1852  to  1872 
— lode  claims  were  located  without  reference  to  surface  lines,  and.  as  above 
explained,  their  locality  and  extent  could  only  be  indicated  by  means  of  a 
notice.  Notice  and  record  were  therefore  an  essential  part  of  the  system. 
Now,  however,  since  the  law  has  applied  the  system  of  surface  locations  to 
lode  claims,  they  have  ceased  to  be  of  any  importance  as  independent  and 
substantial  requirements.  But  the  miners  have  generally  failed  to  perceive 
that  there  has  been  any  radical  change  in  the  system  of  making  locations. 
They  cannot  divest  themselves  of  the  notion  that  the  surface  is  still  a  mere 
incident  to  the  vein,  and  that  they  must  hold  by  means  of  their  notice  fifteen 
hundred  feet  of  the  vein,  wherever  it  is  found  to  run,  notwithstanding  their 
surface  lines,  as  marked  on  the  ground,  may  not  include  so  much. 

"But  another  evil  remains.  In  the  nature  of  things  there  must  always 
exist  the  necessity  in  the  assertion  of  any  mining  title  of  proving  compliance 
with  the  law  prescribing  the  conditions  upon  which  it  may  be  acquired ;  but 
there  is  no  necessity  for  leaving  the  terms  and  existence  of  the  law  itself  to 
be  the  subject  of  proof  by  evidence,  the  best  of  which  is  always  open  to  dis- 
pute. As  long  as  there  are  local  regulations  anywhere,  and  as  loaig  as  there 
may  be  local  regulations  everywhere  affecting  the  validity  of  mining  titles, 
no  man  can  ever  know  the  law  of  his  title  until  the  end  of  a  trial  in  which  it 
is  involved.  In  districts  where  the  rules  are  in  writing,  where  they  have  been 
some  time  in  force  and  generally  recognized  and  respected,  the  law  may  be 
tolerably  well  settled.      Rut  there  is  often  a  question  whether  the  rules  have 


324  History  of  the  Bench  and  Bar  of  California. 

l)een  regularly  adopted  or  generally  recognized  by  the  miners  of  a  district. 
There  may  be  two  rival  codes,  each  claiming  authority  and  each  supported 
by  numerous  adherents;  evidence  may  be  offered  of  the  repeal  or  alteration 
of  rules,  and  this  may  be  rebutted  by  evidence  that  the  meeting  which  under- 
took to  effect  the  repeal  was  irregularly  convened  or  was  secretly  conducted 
in  some  out-of-the-way  corner,  or  was  controlled  by  uncjualified  persons;  cus- 
toms of  universal  acceptance  may  be  proved  which  are  at  variance  with  the 
written  rules;  the  boundaries  of  districts  may  conflict,  and  within  the  lines 
of  conflict  it  may  be  impossible  to  determine  which  of  two  codes  of  rules 
is  in  force;  there  may  be  an  attempt  to  create  a  new  district  within  the  limits 
of  an  old  one;  a  district  may  be  deserted  for  a  time,  and  its  records  lost  or 
destroyed ;  and  then  a  new  set  of  locators  may  recognize  it  and  relocate  the 
claims.  This  does  not  exhaust  the  list  of  instances  within  my  own  knowledge 
in  which  it  has  been  a  Cjuestion  of  fact  for  a  jury  to  determine  what  the  law 
was  in  a  particular  district.  Other  instances  might  be  cited,  but  I  think 
enough  has  been  said  to  prove  that  local  regulations  being  of  no  use  ought 
to  be  abolished. 

"The  magnitude  of  the  evil  resulting  from  the  uncertainty  of  mining  titles 
will.  ])erhaps,  be  appreciated  when  I  say  that  after  a  residence  of  seventeen 
years  in  the  State  of  Nevada,  with  the  best  opportunity  for  observing,  I  can- 
not at  this  moment  recall  a  single  instance  in  which  the  owners  of  really  valu- 
able mining  ground  have  escaped  expensive  litigation,  except  by  paying  a 
heavy  blackmail."  This  defect  in  the  law,  like  the  one  concerning  a  want  of 
a  reasonable  time  to  mark  boundaries  in  making  a  location,  can  be  cured  by 
an  amendment  of  the  law  itself,  and,  in  this  instance  all  that  is  necessary  is  a 
j)nnision  that  all  future  occupation,  location,  or  purchase  of  public  mineral 
lands  shall  be  governed  by  laws  of  Congress,  to  the  exclusion  of  all  local 
customs,  rules  and  regulations  and  State  and  territorial  law. 

THK    KXTRA-L.\TKRAI.   RIGHT    .\NI)   TllK   SOIWRE    LOCATION. 

A  discussion  of  any  remedy  for  the  remaining  source  of  litigation  result- 
ing from  the  provisions  of  the  statute  would  bring  us  to  the  parting  of  the 
ways.  Probably  any  system  that  allows  the  miner  the  right  to  follow  his  lode 
on  the  dip  outside  vertical  planes  drawn  through  the  surface  lines  of  his  loca- 
tion must  bring  in  its  train  more  or  less  litigation.  Where  the  miner  who 
has  sunk  upon  his  lode  has  become  the  defendant  at  the  instance  of  some  one 
who  has  located  upon  his  dip,  he  ought  generally  without  difficulty  by  means 
of  his  underground  workings  to  be  able  to  prove  his  title  to  his  lode,  though 
the  expense  is  often  great  on  account  of  the  necessity  of  reopening  old  works. 
Where,  however,  he  has  opened  his  mine  through  a  vertical  shaft  and  cross- 
cut to  his  lode,  he  might,  in  such  a  case,  be  compelled  to  expend  thousands 
and  thousands  of  dollars  in  work  that  is  utterly  useless  to  him  for  all  other 
purposes,  simply  to  prove  the  identity  of  the  lode  he  is  working  beneath  liis 
neighbor's  surface  with  the  one  he  located.     He  cannot  escape  the  burden  of 


History  of  the  Bench  and  Bar  of  California.  325 

this  positive  proof  for  the  judicial  construction  that  has  brought  us  the  law 
of  the  surface  has  brought  with  it  the  English  common-law  accompaniment 
that  each  locator  has  the  prima  facie  right  to  all  vertically  beneath  his  sur- 
face. Where  another  is  mining  upon  the  dip  of  his  lode,  and  he  is  seeking 
affirmative  relief  against  the  conscious  or  unconscious  trespasser,  he  may  not 
be  able  in  the  environment  of  his  own  operations  to  make  the  satisfactory 
proof,  but  will  have  to  push  on,  against  his  other  plans  and  interests,  and  do 
an  immense  amount  of  "dead"  work  until  he  breaks  in  upon  the  trespass.  On 
account  of  peculiar  surface  boundaries  he  might  be  compelled,  on  the  analogy 
of  a  bill  of  discovery,  to  apply  to  the  court  for  permission  to  enter  the  works 
of  the  trespasser  and,  at  his  own  cost,  make  ruinously  expensive  upraises  to 
the  surface,  a  permission  in  many  jurisdictions  impossible  to  obtain,  in  order 
to  prove  the  identity  of  the  lode.  I  have  made  no  mention  of  the  vexatious 
delays,  delays  which  are  sometimes  used  by  the  scoundrelly  corporation  tres- 
passing to  manifest  its  consciousness  of  guilt  by  efforts  of  reorganization  and 
the  like,  nor  to  the  enormous  damage  often  caused  by  the  cessation  of  opera- 
tions in  other  portions  of  the  mine  rendered  necessary  by  the  expense  of  the 
abnormal  amount  of  dead  work  useful  alone  for  the  purposes  of  the  litigation. 
The  expenses  rendered  necessary  by  these  cases  and  by  those  arising  from  mis- 
takes in  the  location  of  the  apex  and  of  the  strike  of  the  lode  are  mounting 
into  millions.  Only  the  wealthy,  whether  corporations  or  individuals,  can 
indulge  in  this  luxury. 

These  considerations  have  brought  despair  to  many  mining  men  and  doubt 
as  to  advisability  of  any  system  providing  for  "the  extra-lateral  right.''  They 
point  to  the  tranquillity  under  the  English  common  law  titles  of  the  lead  and 
copper  mines  east  of  the  Rocky  mountains  and  of  the  placer  mines  in  our  own 
State,  where  an  exact  adjustment  of  rights  depends  simply  upon  exact  sur- 
veying. The  increasing  familiarity  of  many  of  our  prominent  mining  men 
with  the  "square  location"  system  of  Alexico  and  its  results  has  had  much  to 
do  with  fostering  a  sentiment  in  its  favor.  The  agitation  has  already  begun 
for  the  adoption  of  the  system  of  "square  locations."  As  early  as  1880,  B.  C. 
Whitman,  of  Nevada  and  Judge  Hallett,  of  Colorado,  openly  advocated  it. 
and  the  public  land  commission  urged  it  upon  Congress,  while  Chief  Justice 
Reatty  and  Dr.  R.  W.  Raymond,  though  ]:)ointing  out  where  the  ])resent  law 
must  be  amended,  strenuously  contended  for  the  extra-lateral  right,  at  any 
rate  until  the  era  of  active  prospecting  shall  have  actually  passed  away  (Report 
public  land  commission,  of  1880). 

I  do  not  intend  to  enter  into  the  merits  of  the  controversy  between  the 
champions  of  the  extra-lateral  right  and  square  locations.  In  an  article  upon  the 
History  of  Mining  Law  in  California  we  would  be  led  too  far  apace.  Tf. 
possibly  under  conditions  analogous  to  those  lliat  obtained  in  Prussia  at  the 
time,  the  extra-lateral  right  sh.all  be  abolished,  then  its  abolition  will  be 
historv. — ^but  not  till   then.      The  extra-lateral   right  is.   moreover,   a   vested 


326  History  of  the  BencJi  and  Bar  of  California. 

right  at  ijresent  in  all  lode  patents  fulfilling  the  conditions  of  the  present  law, 
and  in  all  the  numl)erless  locations  duly  made  under  the  lode  rules,  customs 
or  regulations.  No  amendment  can  take  that  vested  right  away.  In  all  lode 
mines  that  at  present  exist  where  compliance  has  been  had  with  the  condition 
of  substantial  parallelism  of  end  lines,  the  extra-lateral  right  is  indefeasible, 
unless  the  abandonment  of  the  possessory  ownership  by  the  owner  shall  throw 
the  mine  itself  back  into  the  public  domain.  And  legislation  on  the  subject, 
could  at  most,  then,  only  afifect  future  locations. 

After  all.  no  matter  how  honestly  the  advocates  of  the  two  systems  con- 
tend, the  conclusions  reached  depend  largely  upon  the  point  of  view.  The 
large  mine  operator,  who  buys  and  opens,  but  who  does  not  discover  or  locate 
mines,  upon  whose  shoulders  falls  the  burden  of  the  costs  of  litigation, — he, 
with  his  lawyers  and  his  surveyors  and  his  experts,  usually  leans  toward  the 
"square  location."  The  prospector  and  the  discoverer  feels  in  his  every  fibre, 
no  matter  what  factitious  sacredness  judicial  construction  or  the  statute  may 
have  thrown  about  the  idea  of  the  surface,  that  the  lode  itself  is  the  only 
real  property,  as  it  is  the  only  thing  he  has  been  hunting,  and  when  he  finds 

the  lode  his  desire  "to  stay  with  it  till  it  reaches "  is  a  passion  that 

can  not  be  understood  by  one  who  has  never  owned  a  lode  mine  and  worked 
in  it  or  who  has  never  lived  in  a  mining  community.  The  discoverer  is  not  of 
the  class  that  has  usually  had  to  bear  the  costs  of  mighty  law-suits  and  there- 
fore he  loses  no  sleep  over  the  possible  litigation.  And,  even  if  he  does  take 
the  chance  of  losing  the  mine,  he  is  willing  to  do  so  with  the  same  cheerfulness 
with  which  he  spent  the  greater  part  of  his  life  on  the  chance  of  finding  it.  As 
long-as  the  law  recognizes  his  right,  he  is  willing  to  take  his  chances  of  being 
able  to  hold  on  to  the  lode.  He  has  long  learned  to  look  upon  mining  with  the 
same  game  philosophy  with  which  John  Oakhurst  looked  upon  life,  as  at  best 
an  uncertain  game,  and  to  "recognize  the  usual  percentage  in  favor  of  the 
dealer." 


y 


SUGGESTED  AMENDM?:nTS  OF  LAW  OF  18/2. 


The  act  of  1872,  with  further  congressional  amendment  putting  all  matters 
concerning  location  in  the  terms  of  the  act  itself,  abolishing  all  local  rules, 
regulations  and  customs  and  superseding  all  State  and  territorial  enactments, 
arranging  for  the  discoverer  to  have  a  reasonably  liberal  time  within  which 
to  mark  his  boundaries  before  he  shall  be  bound  by  them,  and  regulating 
effectively  the  performance  of  the  work  necessary  to  hold  the  possessory 
right  to  the  claim,  will  be  immensely  improved.  The  mistakes  incident  to 
hurried  location  and  consef|uent  ignorance  of  the  details  to  give  it  effectiveness 
will  be  reduced  to  a  minimum.  The  law  has  already  stood  many  a  severe 
geological  test.  It  has  had  to  undergo  the  test  of  the  flat  wavy  veins  of  the 
neighborhood  of  Nevada  City.  It  may  have  to  deal  with  lodes  like  the  Royal 
Consolidated  in  Calaveras  Covmtv,  where  one  can  walk  down  the  shaft,  or 


History  of  the  Bench  and  Bar  of  California.  327 

with  the  abnormal  width  of  the  mother  lode  in  some  portions  of  Amador 
Connty.  The  law  that  conld  stand  Carson  City-Xorth  Star,  South  Scotia- 
New  Idea,  Wyoming-Champion,  Providence-Champion  and  many  another 
problem  already  solved,  will  have  no  trouble  in  California.  The  mountains 
and  gulches  of  California  will  probably  never  try  it  with  anything  so  hard 
as  Lead^'ille. 

CERTAIN  STATK  MINING  LEGISLATION. 

It  would  be  manifestly  beyond  the  scope  of  an  article  of  this  kind  to  stop  to 
point  out  all  the  different  laws  that  were  passed  and  repealed  in  California  with 
reference  to  the  exclusion  of  Chinese  from  the  mines,  and  the  attempts  to  levy 
and  collect  a  Foreigners'  Tax.  There  would  be  no  use  in  relating  the  history 
of  the  enactment  of  any  acts,  whether  in  general  or  codified  form,  providing 
under  the  law  of  eminent  domain  for  the  condemnation  of  sites  for  tunnels, 
ditches,  flumes,  pipes,  and  dumping  places  for  working  mines,  or  for  outlets, 
natural  or  otherwise,  for  the  flow,  deposit,  or  conduct  of  tailings  or  refuse 
matter  from  the  mines,  for  the  reason  that  in  all  instances  where  any  attempt 
has  been  made  under  the  provisions  of  the  act,  the  Supreme  Court  of  this 
State  has  foiled  the  atempt  by  holding  that  mining  is  not  a  public  use.  The 
act  establishing  a  system  of  mine  bell  signals  introduced  by  Senator  Voorheis, 
of  Amador  County,  and  approved  March  8,  1893,  cannot  be  said  to  belong  to 
the  law  of  mining  in  California,  in  the  sense  in  which  I  have  been  discussing 
that  subject.  It  is  significant,  how^ever,  as  indicating  the  immense  strides  in 
the  industry  of  lode  mining,  and  the  large  scale  of  lode  mining  operations  as 
distinguished  from  its  small  beginnings,  that  such  a  system  of  bell  signals 
was  found  necessary  and  convenient.  Likewise,  the  act  for  the  protection  of 
stockholders  in  mining  companies,  approved  April  23.  1880.  and  its  amendment, 
more  properly  belongs  to  the  law  of  corporaticMis  than  that  of  mining.  The 
peculiar  associations,  too.  known  as  mining  ])artnerships,  which  arise  where 
several  owners  of  a  mine  engage  in  the  actual  working  of  it,  belong  properly 
to  a  treatise  on  partnership,  though  their  law  of  t(~»day  is  but  the  statutory 
enactment  of  a  distinctive  California  common  law.  which,  though  in  many 
respects  similar  to  the  "cost-book  system"  of  Cornwall  and  Devon,  blossomed 
out  of  the  tenderest  relationship  of  the  days  of  '49,  the  days  of  Tennessee  and 
his  "pardner."  They  s|)read  out  into  all  the  states  and  territories  where  went 
the  California  law  of  mining  properly  so-called,  were  early  crystallized  in  de- 
cisions of  the  courts,  and  enacted  into  statutes  which  were,  with  all  their  fea- 
tures distinctive  from  ordinary  partnership,  rc-cnacted  intu  the  Civil  Code, 
Sections  251 1,  2520,  in  1872. 

IIVDRAUIJC    MINING    AND    C.VEIEORNI.V    l)i:i'.RIS    COMMISSION    ACT. 

One  of  the  most  interesting  phases  of  the  mining  law  in  California  is 
the    federal    statute    creating    the  California  Debris  Commission,    following 


328  History  of  the  BeiicJi  and  Bar  of  California. 

the  closing  down  of  the  hydraulic  mines  in  the  Sacramento  and  San  Joaquin 
watershed  as  a  result  of  the  federal  injunction  in  the  test  case  of  Woodrufif 
vs.  The  North  Bloomfield.  The  act  was  the  work  of  Mr.  Caminetti,  of  Jack- 
son, then  congressman  from  the  Second  District,  and  deserves  a  more  detailed 
notice  than  I  shall  be  able  to  give  it  in  this  article,  as  it  is  a  unique  example  of 
govermental  intervention.  The  go\-ernment  had  sold  the  agriculturalists  in 
the  valley  their  land  and  the  miners  in  the  mountains  their  placer  claims, 
had  given  each  patents  with  equal  covenants  "to  have  and  to  hold,"  and  had 
collected  from  each  side  the  fees  for  the  land  at  the  land  office  with  absolute 
impartiality.  It  had  been  decided  in  the  North  Bloomfield  case  that  the 
debris  from  that  mine,  the  result  of  mining  by  the  well-known  hydraulic 
process,  was  injuring  the  lands  adjacent  to  the  navigable  streams  below.  The 
magnitude  of  the  extent  of  hydraulic  mining  had  been  its  undoing.  The 
choking  up  of  the  overtaxed  channels  of  the  rivers,  the  covering  up  of  valuable 
adjacent  lands,  and  the  injury  to  navigation  brought  all  parties  down  upon  the 
offending  industry.  Private  individuals  invoked  the  doctrine  ";//  nan  lacdas," 
the  State  protested  against  interference  with  its  water  highways,  and  the  fed- 
eral government,  despite  the  covenant  in  the  deed,  objected  to  the  obstruction 
to  navigation.  The  bitter  feeling  engendered  between  the  interests  injured 
and  the  industry  was  so  great  that  for  some  years  no  effort  was  made  towards 
any  rehabilitation  of  hydraulic  mining. 

Tn  the  decision  of  the  Woodruff-North  Bloomfield  case,  brought  by  an 
individual,  and  the  People  vs.  Gold  Run  case,  brought  by  the  State,  the  hy- 
draulic process  in  and  of  itself  had  not  been  declared  unlawful,  but  hydraulic 
mining  as  theretofore  conducted  where  it  contributed  or  threatened  to  con- 
tribute in  a  material  degree  to  the  filling  up  of  river  channels,  injuring  naviga- 
tion, or  covering  the  lands  adjacent  to  the  navigable  streams  with  debris,  was 
declared  a  public  nuisance  and  prohibited.  Judge  Saw^yer,  who  decided  the 
Woodruff-Bloomfield  case,  realized  the  awful  damage  to  entire  sections  of 
the  State  by  the  closing  dowm  of  these  mines,  and  left  a  fair  opening,  making 
certain  .suggestions  of  possible  conditions  under  which  the  injunction  might 
be  dissolved.  The  North  Bloomfield  Company  constructed  the  suggested  im- 
pounding works,  and  the  United  States  then  brought  its  action  for  an  injunc- 
tion against  the  North  Bloomfield  Company.  The  injunction  was  denied,  the 
Court  holding  that  by  reason  of  the  impounding  w^orks  constructed  the  light 
matter  floating  over  the  dam  was  harmless,  that  danger  to  be  apprehended 
from  the  0])eration  of  the  North  Bloomfield  mine,  w-ith  its  impounding  reser- 
voirs as  constructed  and  used  and  intended  to  be  used  w^as  too  remote  to  justify 
the  Court  in  issuing  an  injunction. 

Thereafter,  the  California  Debris  Commission  Act  was  passed.  The 
government  could  not  afford  to  admit  any  moral  responsibility  and  it  did  not 
desire  avowedly  to  pass  any  legislation  in  aid  of  any  special  industry,  but  it 
could,  on  the  theory  of  aiding  navigation,  carry  out  a  certain  patrol  of  the 


History  of  the  Bench  and  Bar  of  California.  329 

navigable  streams.  The  Act  was  approved  March  i,  1893,  -iiid  provides  for 
the  creation  of  a  commission  of  three  members,  to  be  known  as  the  CaHfornia 
Debris  Commission,  and  to  be  selected  by  the  President,  by  and  with  the 
advice  and  consent  of  the  senate,  from  ofificers  of  the  Corps  of  United  States 
Army  engineers,  which  commission  has  its  authority  and  exercises  its  powers 
under  the  supervision  of  the  chief  of  engineers  antl  direction  of  the  Secretary 
of  War.  The  jurisdiction  of  the  commission  with  reference  to  hydraulic 
mining  extended  to  all  such  mining  in  the  territory  drained  by  the  Sacramento 
and  San  Joaquin  Rivers.  Hydraulic  mining,  as  defined  in  section  eight 
thereof,  directly  or  indirectly  injuring  the  navigability  of  said  river  systems 
carried  on  in  said  territory  other  than  as  permitted  under  the  provisions  of 
this  act,  was  prohibited  and  declared  unlawful. 

It  was  made  the  duty  of  the  commission  to  mature  and  adopt  such  plans 
as  would  improve  the  navigability  of  all  the  rivers  comprising  the  system, 
deepen  their  channels,  and  protect  their  banks,  with  a  view  of  making  the 
same  effective  as  against  the  encroachment  of,  and  damage  from,  debris 
resulting  from  mining  operations,  natural  erosion,  or  other  causes,  and  per- 
mitting mining  by  the  hydraulic  process  to  be  carried  on,  provided  the  same 
might  be  accomplished  without  injury  to  the  navigability  of  the  rivers,  or  to 
the  lands  adjacent  thereto.  The  commission  was  also  empowered  to  examine, 
survey,  and  determine  the  utility  and  practicability  of  storage  sites  for  .the 
storage  of  debris,  with  a  view  to  the  ultimate  construction  of  impounding  dams 
and  reservoirs,  and  permitting  hydraulic  mining  to  be  carried  on  behind  them. 
It  prescribed  a  complete  system  for  application  of  those  desiring  to  submit 
themselves  to  the  jurisdiction  of  the  commission,  of  the  necessary  notices, 
publication,  examinations,  hearings,  etc.  The  works  are  to  be  constructed 
under  the  direct  supervision  of  the  commission,  but  at  the  expense  of  the 
])arties,  and  the  jjcrmit  to  commence  mining  is  not  issued  until  after  inspection 
and  approval  of  the  completed  work.  This  permission  may,  for  cause,  be 
revoked,  or  its  terms  modified  from  time  to  time. 

Under  the  provisions  of  this  act  a  number  of  permits  have  been  granted 
and  a  iinniber  of  mines  have  started  again.  The  courts  are  being  again  ap- 
pealed lo,  ho\ve\'er.  for  injunctions,  and  the  Red  Dog  hydraulic  mine  has 
alreadv  been  closed  flown  by  injunction  from  the  Superior  Court  of  Sutter 
Countv,  and  suits  have  been  begun  and  arc  threatened  against  many  other 
mines  operating  under  the  jurisdiction  of  the  commission.  Tt  will  be  ni.ticed 
how  absolutely  hydraulic  mining  is  placed  under  the  thumb  of  the  com- 
mission. The  terms  of  the  act  contain,  moreover,  the  drastic  i)rovision  that 
the  petition  to  the  commission  t(^  be  permitted  to  mine 

"shall  be  accompanied  by  an  instrnnienl  duly  execnled  and  acknowledged,  as 
required  by  the  law  of  the  said  State,  \vherel)y  the  owner  or  owners  of  such 
mine  or  mines  surrender  to  the  United  States  the  right  and  privilege  to  regulate 
by  law,  as  provided  in  this  act,  or  any  law  that  may  hereafter  be  enacted,  or  by 


330  History  of  the  Bench  and  Bar  of  California. 

such  rules  and  regulations  as  may  be  prescribed  by  virtue  thereof,  the  manner 
and  method  in  which  the  debris  resulting  from  the  working  of  said  mine  or 
mines  shall  be  restrained,  and  what  amount  shall  be  produced  therefrom." 

W'liile  this  act  was  pending  in  congress  there  was  being  crowded  through 
the  legislature  of  California  an  act  introduced  by  Attorney  General  Tirey  L. 
Ford,  then  State  senator  from  Sierra,  Plumas  and  Nevada  counties,  which,  as 
Sections  1424  and  1425  of  the  Civil  Code,  was  approved  March  24.  1893,  the 
terms  of  which  are  as  follows  : 

"1424.  The  business  of  hydraulic  mining  may  be  carried  on  within  the  State 
of  California  wherever  and  whenever  the  same  can  be  carried  on  without  mate- 
rial injury  to  the  navigable  streams,  or  the  lands  adjacent  thereto. 

"1425.  Hydraulic  mining,  within  the  meaning  of  this  title,  is  mining  by 
means  of  the  application  of  water,  under  pressure,  through  a  nozzle,  against  a 
natural   bank." 

Section  1424,  it  will  be  seen,  is  in  direct  conflict  with  tlie  provisions  of  the 
l^ebris  Commission  Act.  It  is  also  in  conflict  with  the  judical  interpretation 
gi\'en  to  the  provisions  of  that  act.  and  is,  therefore,  probably  nugatory  in  the 
Sacramento  and  San  Joaquin  w^atershed.  Section  1425  will  be  of  value  as 
defining  the  sense  in  which  the  words  "hydraulic  mining"  were  used  in  Cali- 
fornia prior  to  its  enactment  only  in  case  it  is  really  the  codification  of  a  defini- 
lion  actually  accepted  at  the  time  and  before  the  federal  act  was  passed. 

The  North  Bloomfield  Company,  as  has  been  seen,  had  constructed  its 
restraining  works  before  the  creation  of  the  commission  and  those  restraining 
works  had  been  decided  in  a  case  by  the  United  States  against  the  Company 
in  the  United   States  Circuit  Court  to  be  sufficient  and  application  of  the 
government  for  an   injunction  denied.      It.   therefore,  did  not  submit  itself 
to  the  jurisdiction  of  the  commission.     Several  years  after  the  act  was  passed 
the  government  again  brought  an  action  against  the  North  Bloomfield  Com- 
pany, adding  to  the  old  allegations  supplemental  averments  of  the  passage 
of  the  Debris  Commission  Act  and  the  failure  of  the  company  to  submit  itself 
to  the  jurisdiction  of  the  commission  and  secure  from  it  a  permit  to  conduct 
its  mining  operations  behind  its  dam.     Conceding  that  the  mine  w^as  being 
operated  without  injury  to  the  navigable  streams,  as  fotmd  at  the  former  trial, 
Judge  Ross  nevertheless  granted  the  injunction,  holding  that  until  the  debris 
commission  appointed  under  the  act  should  find   that  such  mining  can  be 
carried  on  without  causing  the  prohibited  injury,  all  hydraulic  mining  within 
the  territory  drained  by  the  Sacramento  and  San  Joaquin  River  systems,  is 
unlawful.     Here  was  the  constitutionality  of  the  act  as  a  quasi  police  regula- 
tion upheld  in  favor  of  the  government  and  against  a  mine. 

Such  a  test  of  the  constitutionality  of  the  measure  on  the  point  indicated 
is.  however,  of  no  benefit  to  the  miners.  Why  the  issue  is  postponed  is  incom- 
prehensible. The  constitutionality  of  the  act  should  be  tested  in  some  case 
against  a  company  operated  under  a  duly  obtained  permit  from  the  cominis- 
.sion,  not  in  a  case  against  a  company  not  operating  under  such  a  permit.     The 


'~~  History  of  the  Bench  and  Bar  of  California.  381 

miners  ought  to  be  as  anxious  as  the  farmers  to  ascertain  whether  they  are 
moving  in  a  fool's  paradise  or  on  the  solid  earth.  It  seems  unfair  to  have 
men  go  to  the  enormous  risk  and  expense  of  constructing  such  impounding 
works  as  will  satisfy  the  commission  until  the  constitutionality  of  the  act  is 
fairly  tested.  Is,  or  is  not,  the  act  contrary  to  the  provisions  of  the  hfth 
amendment  of  the  constitution  of  the  United  States?  Does  or  does  not  the 
act,  directly  or  indirectly,  deprive  any  person  of  property  without  due  process 
of  law?  Is  the  State  deprived  by  it  of  any  right  guaranteed  it  in  the  constitu- 
tion of  the  United  States  to  protect  the  navigability  of  its  streams?  If  the 
act  shall  be  held  to  be  constitutional  and  the  miners  are  satisfied  to  take  their 
chances  under  it,  then  they  must  submit  to  the  jurisdiction  of  the  commission,, 
for  otherwise  their  hydraulic  mining,  no  matter  how  little  injurious,  will  be 
unlawful.  They  would  then  at  least  have  a  feeling  of  security  in  expending 
the  moneys  necessary  to  take  advantage  of  its  provisions,  that  the  act  itself 
will  not  be  declared  unconstitutional  over  their  heads.  If  the  act  shall  be 
held  unconstitutional,  then  those  who  have  already  submitted  themselves  to  its 
jurisdiction  will  cease  expending  further  money  under  it  and  can  apply  for 
the  cancellation  of  their  surrenders  on  the  ground  that  they  were  given  with- 
out consideration.  Whatever  the  result,  the  question  of  the  constitutionality 
of  the  act  should  be  immediately  settled,  one  w^ay  or  the  other,  once  for  all. 

JOHN  F.  DAVIS. 

Jackson,  Amador  County,  Cal.         ^       _ 


THE  CELEBRATED 
**T  R  U  S  T  WILL" 
OF  JAMES  G.  FAIR 

BY  THE  EDITOR 


James  G.  Fair 


e^c|3(&!%i&t%«^oib^^ 


HISTORY  of  the 
BENCH  and  BAR 
of  CALIFORNIA 


-^  <??  *'  "^p ' 


The  CELEBRATED  "TRUST  WILL"  of 
JAMES  G.  FAIR 


James  Graham  P'air,  who  threw  off  his  miner's  shirt  to  enter  th,e  United 
States  senate,  was  a  typical  Californian.  He  was  not  still  working  with  pick 
and  shovel  when  chosen  a  federal  senator;  he  had  become  possessed  of  great 
wealth,  but  he  was  still  superintendent  of  the  mines  owned  by  himself  and 
partners,  and  in  that  capacity  he  personally  inspected  all  the  underground 
operations,  going  through  tunnels  and  levels,  and  up  and  down  shafts  at  all 
seasons,  and  so  carrying  his  life  in  his  hand  by  day  and  by  night. 

He  w^as  born  in  Clogher,  Ireland,  in  December.  1831.  His  parents  be- 
longed to  an  old  Tyrone  County  family  of  Scotch  descent.  When  twelve  years 
of  age  he  came  to  America  with  liis  father,  who  left  him  with  friends  at  Geneva, 
111.,  while  he  returned  for  the  remainder  of  his  family.  Impatient  at  his  father's 
delayed  return,  he  set  out  with  perfect  self-reliance  to  make  his  fortune. 

Beginning  in  Chicago  and  doing  whatever  presented  itself,  he  remained 
there  until  the  excitement  following  the  gold  discovery  in  California  turned 
the  tide  of  immigration  to  the  Pacific  coast.  In  company  with  many  associates, 
since  known  as  prominent  pioneers  and  business  men,  young  Fair  began  the 
tedious  journey  across  the  plains  in  the  early  fall  of  1849.  arriving  in  Cali- 
fornia in  iVugust  of  the  following  year.  He  at  once  went  to  the  diggings  and 
began  work  in  the  placers  at  Long  Bar,  on  the  Feather  River,  in  Butte  county. 

The  well-built  figure  and  merry  wit  of  the  young  prospector  made  him 
friends  and  gained  him  many  advrnitages.  but  despite  his  cheerful  spirU  and 
great  zeal  his  hard  labor  yielded  him  but  scanty  returns. 

He  became  discouraged  for  a  time  and  abandoned  gravel  for  cjuartz 
mining,  his  next  venture  being  at  Angels,  in  Calaveras  county.  The  change 
greatly  improved  his  pros]:)ects.  and.  adhering  to  (|uartz  nn'ning  as  his  specialty. 


336  History  of  the  Bench  and  Bar  of  California. 

his  efforts  in  Calaveras  and  other  parts  of  tlie  great  mineral  belt  resnlted  in 
quite  substantial  returns. 

At  Shaw's  Flat,  in  Calaveras  county,  may  be  found  still  standing  the  cabin 
in  which  ]\lr.  Fair  lived  from  185 1  to  1853.  It  is  a  two-story  structure  that 
spreads  o\er  as  much  ground  as  a  modern  dwelling  of  twenty  rooms.  It  is 
almost  as  immovable  as  the  rocks.  This  was  the  scene  of  Fair's  first  big 
strike,  which  was  made  in  his  back  yard.  Fair  and  Talton  Caldwell  lived 
and  nnncd  together  without  any  marked  success  until  the  former  took  to 
trailing  a  party  of  natives  and  Chilenos  who  occasionally  passed  through  the 
grounds  surrounding  the  house,  and  after  an  absence  of  a  few  hours  invariably 
returned  with  sufficient  dust  to  get  drunk.  Following  them  Fair  soon  came 
to  the  remarkable  diggings  they  were  working,  on  the  edge  of  the  grounds 
where  a  little  garden  had  been  planted.  Fair  and  Caldwell  quit  gardening  and 
took  out  $180,000  in  dust  and  nug\gets  in  a  few  weeks. 

After  Fair's  clean-up  at  Shaw's  Flat  he  moved  to  Angels,  and  from  that 
camp  courted  and  married  Mrs.  Theresa  Rooney,  the  proprietress  of  the 
most  flourishing  boarding-house  in  Carson  Hills.  The  house  in  which  he 
was  married  is  still  in  good  condition. 

Finally  his  rapidly  acquired  insight  into  the  possibilities  of  the  State's 
great  industry  led  him  to  Virginia  City,  Nevada,  where  he  expected  sub- 
stantial developments  from  the  Comstock  lode.  He  prospected  a  number  of 
locations  with  varying  fortune,  and  in  1865  his  executive  ability  attracted  the 
attention  of  the  directors  of  the  famous  Ophir,  and  he  was  tendered  its  super- 
intendency.  He  was  so  successful  in  that  position  that  two  years  later  he  took 
the  management  of  the  Hale  &  Norcross  mine.  Shortly  after  this  he  formed 
his  first  business  connection  with  John  W.  Mackay,  and  later  they  formed  a 
partnership  with  Flood  and  O'Brien,  which  became  known  as  the  world-famous 
Bonanza  firm,  of  which  Mr.  Mackay  is  now  the  sole  survivor. 

This  quartet  of  financiers  and  experienced  miners  was  probably  the 
strongest  association  of  the  kind  ever  formed.  They  soon  obtained  practical 
control  of  the  Hale  &  Norcross,  which,  under  the  management  of  Fair,  .soon 
fortified  the  capital  of  the  partners  with  an  additional  half  million  dollars. 

This  was  the  preliminary  step  towards  the  consummation  of  their  project 
of  developing  the  great  lode.  They  soon  acquired  the  control  of  what  was 
then  known  as  the  California,  the  Kinney,  and  White  and  Murphy,  called  the 
"Central  Nos.  i  and  2"  mines.  These  properties  were  consolidated  under  the 
title  of  Consolidated  California  and  Virginia,  and  the  work  of  discovering  and 
unlocking  the  great  main  coffer  of  the  "Mother  Lode"  began  in  earnest. 
Failure  would  have  reduced  the  quartet  to  poverty,  but  they  resolutely  con- 
tinued their  gigantic  work. 

Their  wonderful  "find,"  the  location  and  ])roduction  of  these  vast  deposits, 
added  at  least  $150,000,000  to  the  wealth  of  the  coast  in  three  years,  and  made 
the  partners  richer  than  their  wildest  dreams. 


History  of  the  Bench  and  Bar  of  California.  337 

Many  other  mining  investments  and  profitable  ventures  enlisted  Mr.  Fair's 
energies  up  to  the  time  when  he  turned  his  attention  from  mining  to  the 
diversified  field  of  business  investment.  About  1869  Mr.  Fair  began  his  pur- 
chases of  real  estate,  chiefly  in  San  Francisco  and  vicinity.  He  continued 
those  investments  for  many  years  with  a  sagacity  that  added  many  millions  to 
his  original  capital.  He  was  one  of  the  largest  holders  of  profitable  realty  in 
San  Francisco. 

But  there  were  other  directions  of  enterprise  wherein  his  ability  and  fore- 
sight were  noticeable.  About  the  year  1880  he  projected,  built  and  equipped 
the  South  Pacific  Coast  Railroad  and  its  ferry  system  in  the  face  of  obstacles 
and  opposition  that  would  have  discouraged  the  ordinary  man,  no  matter  how 
financially  strong.  This  was  the  road  from  San  Francisco  to  San  Jose  and 
terminating  at  Santa  Cruz.  Its  location  and  ferry  properties,  with  ultimate 
prospects  of  Eastern  connection,  made  it  practically  the  key  to  the  railroad 
situation,  so  that  its  absorption  by  the  Southern  Pacific  became  a  virtual 
necessity,  and  it  was  sold  to  that  corporation  in  1887  for  $6,000,000. 

In  1880  Mr.  Fair  was  chosen  as  a  Democrat  by  the  Nevada  legislature  to 
represent  that  state  in  the  United  States  senate.  During  his  term  he  was 
industrious  in  endorsing  and  forwarding  anti-Chinese  legislation.  He  served 
a  full  term  from  March  4,  1881  to  March  4,  1887. 

In  September,  1887,  he  succeeded  James  C.  Flood,  resigned,  as  president  of 
the  "Nevada  Bank  of  San  Francisco,"  and  then  fixed  his  residence  at  San 
Francisco. 

Those  concerned  will  find  Mr.  Fair's  views  on  Adolph  Sutro,  the  Sutro 
tunnel,  and  the  silver  question,  in  the  San  Francisco  Bulletin  of  March  12, 
1893.  And,  as  a  closing  act  of  his  career,  he  endeavored  to  control  the  wheat 
market,  and,  at  the  time  of  his  death,  he  had  upwards  of  one  hundred  and 
sixty-five  thousand  tons  purchased  and  owned  outright  by  him,  and  stored 
in  the  various  warehouses,  and  was  still  buying.  The  ownership  of  the  wheat 
being  revealed  by  the  litigation  Over  his  estate,  it  became  necessary  to  sell  it 
at  a  loss  of  over  a  million  dollars. 

On  the  28th  day  of  December,  1894,  James  G.  Fair  died  at  his  apartments 
in  the  Lick  House  in  San  Francisco.  The  day  following  his  death  there  was 
filed  in  the  office  of  the  county  clerk  of  that  city  and  county,  his  last  will  and 
testament,  bearing  date  the  21st  day  of  September,  1894,  together  with  a 
petition  by  Thomas  G.  Crothers,  a  nephew  of  deceased,  for  the  probate  thereof, 
and  the  issuance  of  special  letters  of  administration  to  himself  and  James  S. 
Angus,  Louis  C.  Bresse  and  \V.  S.  Goodfellow,  who  were  nominated  therein 
as  executors  thereof.  The  unusual  haste  in  the  filing  of  the  will  can  best  be 
explained  by  a  statement  that  it  was  Senator  Fair's  express  command  that  his 
will  be  filed  immediately  upon  his  demise,  the  logic  of  which  has  l)een  justified 
by  subsequent  proceedings  instituted  by  various  persons  against  his  estate. 


338  History  of  the  Bench  and  Bar  of  California. 

The  will,  after  be(|iiests  to  charities,  amonntinq^  to  two  hundred  thousand 
dollars,  and  devises  to  relatives  aggregating  eight  hundred  thousand  dollars, 
devised  the  rest  and  residue  of  his  estate  to  trustees  therein  named  to  be  by 
I  hem  managed  and  controlled  during  the  lives  of  his  three  children,  Theresa 
A.  Oelrichs.  Charles  L.  Fair  and  \^irginia  Fair,  the  income  thereof  to  be 
paid  over  to  hig  said  children  monthly,  in  equal  proportions,  and  upon  the 
death  of  either  of  said  daughters,  to  pay  over  the  one-third  of  said  income  to 
which  she.  if  living  would  be  entitled,  to  her  children  or  descendants,  if  any 
there  be.  (Otherwise  to  his  sur\i\ing  daughter,  and  upon  the  death,  during  the 
life  of  said  son,  of  said  surviving  daughter,  leaving  children  or  descendants, 
then  to  her  said  children  or  descendants  (providing  for  an  admittedly  illegal 
accumulation)  :  and  upon  the  death  of  the  son  to  pay  over  the  one-third  of 
said  income  to  which  he  if  living  w'ould  l)e  entitled,  to  said  two  daughters  in 
equal  proportions  or  to  the  survivor  of  them.  Upon  the  death  of  his 
three  children  or  the  survivor  of  them,  the  trustees  are  to  convey  to  the  chil- 
dren or  descendants  of  his  daughter  Theresa,  the  one-fourth  part  of  said 
trust  i)roperty  and  estate,  and  to  the  children  or  descendants  of  said  daugh- 
ter, Virginia,  the  one-fourth  part  of  said  trust  property  and  estate,  and  the 
remaining  one-half  of  said  trust  property  and  estate  to  transfer  and  con- 
vey in  ec|ual  shares  to  his  brothers  and  sisters,  and  to  the  children  of  any 
deceased  brother  or  sister  by  right  of  representation.  In  case  either  of  said 
daughters  die  leaving  no  children  or  descendants  the  one-fourth  part  of  said 
trust  property  and  estate  herein  directed  to  be  transferred  and  conveyed 
to  her  children  or  descendants  shall  be  transferred  and  conveyed  to  the  chil- 
dren or  descendants  of  his  other  daughter,  and  if  there  l)e  none  the  same  shall 
be  transferred  and  conveyed  to  his  brothers  and  sisters  and  to  the  children  of 
any  deceased  brother  or  sister  by  right  of  representation  as  aforesaid. 

The  effect  of  this  will  was  to  provide  his  three  children  with  the  income 
from  his  estate  during  their  lives,  giving  the  care  of  the  estate  to  four  trustees. 

Thus  w^as  created  what  has  .since  been  termed  the  celebrated  trust  will, 
and  which  has  so  far  withstood  the  attacks  of  the  l)est  lawyers  in  the  State. 
The  will,  in  addition  to  restricting  the  children's  enjoyment  to  the  income 
of  the  estate,  was  so  worded  that  the  son's  issue  was  not  to  participate  in  their 
father's  estate,  but  upon  his  death,  his  third  of  the  income  was  to  cease  and 
determine,  and  his  interest,  wdiich  he  received  during  his  life,  was  to  be 
divided  l)etween  his  sisters,  if  living.  This  trust  clause  has  been  the  basis 
for  one  of  the  greatest  and  most  persistent  legal  battles  this  State  has  known, 
the  courts  alone  not  being  apjjcaled  to,  but  the  legislature  as  well — and  in 
the  citation  of  authorities  sup])orting  the  different  contentions  and  theories, 
in  additi(ni  to  the  thousand  and  one  modern  cases  cited,  old  English  law 
and  cases,  as  far  back  as  the  Year  Books,  were  submitted.  The  trust  ques- 
tion involved  is  of  unusual  importance,  not  alone  on  account  of  the  millions 
involved  in  the  estate,  but  on  account  of  the  interest  of  every  savings  bank 


History  of  the  Bench  and  Bar  of  California.  339 

in  the  State,  which  has  issued  a  deed  of  trust,  the  questions  involved  here, 
being  directly  applicable  thereto. 

After  the  appointment  of  the  special  administrators  and  the  assigning  of 
the  matter  to  Department  No.  lo,  which  was  presided  over  at  that  time  by 
the  Hon.  Chas.  W.  Slack,  and  as  a  forerunner  of  what  was  to  come  on  the 
i6th  day  of  January.  1895.  Charles  L.  Fair  petitioned  the  court  for  an  order 
requiring  the  production  of  all  instruments  in  writing  purporting  to  be  last 
wills  of  James  G.  Fair,  which  order  was  granted,  but  afterwards  was  modified 
to  the  extent  that  said  executors  were  ordered  to  show  cause  on  a  certain 
day  w-hy  they  should  not  produce  such  papers.  Said  order  to  sliow  cause  was 
heard  on  the  23d  of  January,  1895,  ^^'^  denied.  A  motion  for  inspection  of 
all  wills  was  thereafter  made  by  said  Charles  L.  Fair  and  also  denied. 

On  the  28th  day  of  January,  1895,  it  was  discovered  that  the  original 
will  had  been  stolen  from  the  county  clerk's  office  between  the  afternoon  of 
PViday,  January  25th  and  the  afternoon  of  Monday,  January  28th.  Diligent 
search  was  made  for  said  lost  will,  but  without  success,  and  the  same  has 
never  been  recovered.  No  reward  has  ever  been  offered  for  its  return. 
Fortunately,  a  copy  of  the  will  had  been  preserved,  which  was  afterwards 
decreed  to  be  a  copy  of  the  original  and  admitted  to  probate  as  such. 

On  the  1 8th  of  March,  1895.  an  instrument  entirely  written  in  pencil,  and 
purporting  to  be  the  last  w'ill  of  Senator  Fair,  bearing  date  September  24, 
1894,  was  filed,  together  with  a  petition  by  Charles  L.  Fair,  Theresa  A.  Oel- 
richs  and  Virginia  Fair,  for  its  probate.  The  sponsor  of  this  will  w^as  Nettie 
R.  Craven,  a  principal  in  one  of  the  public  schools  of  San  Francisco,  and  the 
only  way  wherein  it  differed  materially  from  the  will  previously  filed  was 
that  the  objectionable  trust  clause  was  eliminated,  and  it  also  provided  for  a 
legacy  of  fifty  thousand  dollars  for  the  Teachers'  Pension  Fund. 

Senator  Fair,  as  stated,  died  on  the  28th  day  of  December.  1894.  and  the 
trust  will  was  filed  on  the  29th  day  of  December,  1894;  this  pencil  will  was 
not  filed  until  the  i8th  day  of  March,  of  the  year  following.  The  cause  of 
this  delay  was  explained  thus  by  Mrs.  Craven :  Senator  Fair  on  the  day  the 
will  bears  date,  Sept.  24.  1894,  had  called  upon  her  at  her  home.  No.  2007 
California  street,  and  had  then  and  there,  at  her  dictation  and  in  her  presence, 
and  in  the  presence  of  a  Mrs.  Elizabeth  Haskins,  written  his  will,  in  lead 
pencil,  and  then  had  copie<l  the  same  in  ink  on  two  sides  of  one  piece  of  paper. 
That  he  tlien  gave  both  copies  to  her  for  safe  keeping,  and  she  had  done  the 
ink  copy  up  into  a  package  and  sent  it  to  her  daughter  in  New  York.  That 
after  the  Senator's  death,  she  went  to  New  York  to  get  the  will  and  return 
with  it  for  the  pur]:)Ose  of  filing  it,  and  did  so  get  it  and  started  back ;  when  at 
Chicago  a  man  addressed  her  in  tlie  train,  stated  that  he  was  the  man  to 
whom  she  was  to  give  the  package  (an  understanding  having  been  had  to  this 
effect  between  herself  and  her  friend  Mulholland  before  leaving  New  York) 
and  that  she  gave  the  will  to  him  and  from  that  time  on  she  had  not  seen 


H40  History  of  the  Bench  and  Bar  of  California. 

him  or  the  will  either.  Therefore  the  pencil  copy  was  called  into  requisition 
and  filed  on  the  i8th  day  of  March,  1895. 

On  the  25th  of  March.  1895,  Dr.  Marc  Levingston,  named  in  said  pencil 
will  as  executor,  petitioned  for  its  probate.  As  co-executors  of  this  pencil  will 
were  James  S.  Angus  and  Thos.  G.  Crolhers,  who  were  named  in  both  wills 
as  executors.  On  the  15th  of  April  w-ritten  opposition  on  behalf  of  Margaret 
T.  Crothers  and  others  was  filed  to  the  probate  of  the  pencil  will. 

.\t  about  this  time  it  was  deemed  advisable  by  the  administrators  to  dispose 
of  the  hundred  thousand  and  odd  tons  of  wdieat  that  Senator  Fair  had  pur- 
chased shortly  before  his  death.  It  was  not  known  to  the  public  by  wdiom 
this  immense  amount  of  wheat  was  controlled  and  the  difficulty  of  unloading 
such  a  vast  quantity  upon  the  market  can  be  readily  understood.  The  amount 
realized  from  this  sale  ran  into  the  millions. 

On  the  7th  of  May,  1895,  Charles  L.  Fair  filed  a  contest  to  the  wall  of  Sep- 
tember 21,  1894,  giving  as  grounds  of  contest,  imdue  influence,  unsoundness 
of  mind,  etc..  and  thus  bringing  himself  within  the  forfeiture  clause  set  out  in 
said  will.     This  clause  reads  as  follow^s : 

"Believing  that  I  have  made  a  just  and  equitable  disposition  of  my  estate, 
considering  all  the  circumstances  surrounding  each  and  every  of  the  benefi- 
ciaries therein  named.  I  now  expressly  declare  and  i)rovide  that  if  any  or  more 
of  the  legatees  or  devisees  in  this  will  named  or  provided  for  shall  at  any  time 
commence  any  proceeding  to  contest  this  wdll,  the  legacy,  devise  and  provision 
therein  bequeathed,  devised  and  provided  for  shall  from  that  time  become  \'oid. 
and  I  hereby  revoke  the  same,"  etc. 

On  the  15th  of  June.  1895,  an  action  was  commenced  by  Charles  L.  Fair 
against  Trustees  Angus,  Bresse.  Crothers.  and  Goodfellow.  to  quiet  title  to 
the  Lick  House  property,  wdiich  under  an  act  of  the  legislature  passed  for  that 
purpose,  was  another  way  of  testing  the  validity  of  the  trust  clause  contained  in 
the  will  of  September  2T.  1894.  This  case  was  decided  by  Judge  Slack  in 
favor  of  the  plaintiff,  holding  the  trust  to  be  invalid,  w^hich  ruling  is  the  basis 
of  the  appeal  now  pending  before  the  Supreme  Court  of  this  State,  which  decis- 
ion was,  after  two  hearings  before  the  court  in  banc,  reversed  by  a  four-to-three 
vote,  thus  sustaining  the  trust,  and  which  decision  was  afterward  set  aside,  and 
the  cause  ordered  re-argued,  which  has  been  done,  and  now  awaits  final  deter- 
mination. 

On  January  2.  1896.  a  contest  of  the  will  of  September  21,  1894,  was  filed 
on  behalf  of  Dr.  Marc  Levingston;  also  on  behalf  of  the  "Board  of  School 
Teachers'  Retirement  Fund  Commissioners." 

On  the  i6th  of  March.  1896.  Charles  L.  Fair's  contest  to  the  will  of  Sej)- 
tember  21.  1894.  was  withdrawn  wdthout  prejudice,  and  on  the  7th  of  April, 
1896,  he  withdrew  from  the  petition  to  probate  the  pencil  will,  and  on  the 
same  day  he  filed  opposition  to  the  pencil  will.  This  was  the  culmination 
of  a  strange  set  of  circumstances.     Of  course,  it  is  unnecessary  to  .sav  that 


History  of  the  Bench  and  Bar  of  California.  H41 

the  trust  feature  in  the  will  of  September  21st  was  objectionable  to  the  chil- 
dren of  Senator  Fair,  and  when  the  will  of  September  24th  was  presented  to 
them  by  Nettie  R.  Craven,  bearing-  a  later  date  than  the  trust  will,  and  without 
the  trust  feature,  it  was  grasped  at  and  filed,  together  with  their  petition  for 
its  probate.  As  a  reason  for  his  will  being  in  the  possession  of  Mrs.  Craven, 
she  claimed  to  be  Senator  Fair's  contract  wife,  and  also  claimed  to  hold  deeds 
to  valuable  city  property  made  to  her  by  the  Senator. 

The  deeds  which  Mrs.  Craven  held  and  which  were  afterwards  recorded, 
were  for  valuable  city  realty,  one  deed  being  for  a  block  of  land  on  the  corner 
of  Pine  and  Sansome  streets,  u^xdu  which  is  a  modern  five-story  brick  build- 
ing, and  the  other  deed  was  for  a  block  of  land  at  Mission  and  Twelfth  streets. 
The  value  of  these  two  pieces  is  a  million  and  a  half  dollars,  and  the  monthly 
rental  thereof  five  thousand  dolars.  She  claimed  that  in  order  to  avoid  noto- 
riety. Senator  Fair  had  made  no  provision  for  her  in  his  will,  but  had  executed 
these  two  deeds  to  her,  by  way  of  his  provision  for  her.  They  were  entirely 
written  and  signed  in  pencil,  and  bore  the  notarial  certificate  of  a  San  Fran- 
cisco notary.  Upon  the  trial  of  these  deeds  in  an  action  to  quiet  title  to  this 
property,  it  was  held  by  Judge  Slack  that  the  deeds  were  simulated,  that  they 
were  never  acknowledged  by  James  G.  Fair  before  the  notary,  and  that  they 
be  cancelled  of  record.  H.  S.  Crocker  &  Co.,  of  San  Francisco,  were  instru- 
mental in  establishing  these  facts.  The  notarial  certificates  attached  to  the 
deeds,  so  they  testified,  were  never  printed  by  them  until  January  8th,  1896, 
and  inasmuch  as  the  acknowledgment  bore  date  Sept.  8th,  1894,  that  Fair 
died  at  the  end  of  that  year,  and  that  the  notary  resigned  his  commission  as 
a  notary  in  1894,  it  was  found  that  Fair  never  acknowledged  these  deeds.  The 
notary  was  tried  for  perjury  in  connection  with  his  testimony  given  in  regard 
to  these  deeds,  but  owing  to  a  defective  pleading  was  acquitted. 

The  change  of  base  precipitated  matters  and  as  a  result  Mrs.  Craven  filed 
her  two  deeds,  which  resulted  in  a  suit  by  the  executors  and  trustees  against 
her  to  quiet  title  to  the  two  pieces  of  property  claimed  by  her,  the  trial  of 
which  occupied  the  attention  of  Judge  Slack  and  a  jury  for  six  months.  The 
trial  was  one  of  the  most  bitterly  contested  on  record,  (^ut  of  it  arose  many 
charges  of  perjury  and  forgery,  ending  in  a  finding  by  the  court  that  the  deeds 
were  forgeries. 

On  the  i6tli  of  November,  1896,  Dr.  Marc  Levingston  withdrew  his  peti- 
tion for  the  probate  of  the  pencil  will  and  on  the  same  day  an  order  was  made 
by  Superior  Judge  Charles  W.  Slack  denying  its  probate,  and  a  judgment 
was  signed  and  filed  adjudging  that  it  was  not  in  the  handwriting  of  James  G. 
Fair,  and  that  it  was  not  his  last  nor  other  will,  and  at  the  same  time  an 
order  was  made  admitting  the  will  of  Sept.  2i,  1894,  commonly  known  as  the 
"trust  will,"  to  probate,  and  appointing  James  S.  Angus,  Thomas  G.  Crothers, 
and  W.  S.  Good  fellow  as  executors  thereof  (the  said  Louis  C.  Bresse,  who 
was  also  nominated  as  one  of  the  executors  thereof,  having  on  the  22nd  day  of 
April,  1896,  died  at  Ensenada,  Mexico  ) 


342  History  of  the  Bench  and  Bar  of  California. 

During  the  course  of  the  special  administration  of  this  estate,  the  special 
administrators  performed  some  extraordinary  services.  In  addition  to  the 
enormous  amount  of  business  necessary  to  the  usual  handling  of  an  estate  of 
this  magnitude,  they  successfully  conducted  the  sale  of  the  hundred  thousand 
and  over  tons  of  wheat ;  carried  on  the  outlined  policy  of  the  Senator  in  the 
reclamation  and  improvement  of  his  North  Point  property,  whereby  over  fiity 
square  blocks  of  land  have  been  reclaimed  and  improved,  at  an  expense  of 
over  a  million  dollars,  and  carried  on  at  a  profit  to  the  estate,  the  Petaluma 
K*anch,  embracing  8349  acres,  the  Knight's  Landing  Ranch,  containing  5057 
acres,  and  the  Berryessa  Ranch,  containing  1500  acres. 

On  the  5th  day  of  April,  1897,  a  petition  was  filed  by  Charles  L.  Fair, 
Theresa  A.  Oelrichs,  and  Virginia  Fair,  for  distribution  to  them  of  all  the  real 
estate  belonging  to  the  estate.  On  the  hearing  of  the  petition  the  matter 
was  argued  at  length  before  Judge  Slack,  resulting  in  a  decree  awarding  all 
the  real  estate  to  the  three  children,  in  equal  shares,  from  which  decree  an 
appeal  was  taken  by  the  executors  and  trustees,  and  which  appeal  is  undeter- 
mined before  our  Supreme  Court.  The  question  involved  in  this  appeal  is 
practically  the  same  as  the  one  involved  in  the  suit  to  quiet  title,  in  which  the 
trust  was  held  to  be  invalid  by  Judge  Slack.  The  two  appeals  are  linked  to- 
getiier  and  are  being  considered  together  by  the  court. 

In  the  proper  presentation  of  these  appeals  upwards  of  eight  thousand 
printed  pages  of  briefs  have  been  filed,  advancing  the  theories  and  contentions 
of  the  different  sides. 

Subsequently  a  petition  was  filed  by  the  same  parties  for  distribution  to 
them  of  the  personal  property  belonging  to  said  estate,  but  which  said  petition 
has  not  been  pressed  and  still  remains. 

On  November  15,  1897,  a  year  within  one  day  after  the  will  of  September 
21,  1894,  had  been  admitted  to  probate,  Charles  L.  Fair  filed  his  petition  for 
revocation  of  probate  of  said  will,  which  contest  is  still  pending. 

On  the  8th  day  of  February,  1898.  the  inventory  and  appraisement  of  the 
estate  w-as  filed,  giving  the  appraised  value  thereof  at  $12,228,998.07.  This 
amount  has  increased  since  then  to  about  $18,000,000.  Notwithstanding  the 
fact  that  the  legacies  under  the  will,  amounting  in  all  to  upward  of  nine  hun- 
dred thousand  dollars,  have  been  paid,  the  corpus  of  the  estate  is  prac- 
tically intact.  The  expense  of  conducting  an  estate  of  this  magnitude  is  very 
great,  and  even  after  the  cost  of  administration  and  the  expenses  connected 
with  the  mass  of  litigation  with  which  this  estate  has  been  attended,  the  income 
is  more  than  sufficient  to  meet  all  demands  and  leave  a  surplus  of  about  two 
million  dollars. 

There  have  been  twelve  semi-annual  accounts  filed  by  the  executors,  and 
these  attest  the  thorough  business  manner  in  which  the  estate  is  being  con- 
ducted and  the  soundness  of  the  policy  pursued. 

On  the  20th  day  of  April.  1898,  Nettie  R.  Craven  filed  a  petition  setting 


History  of  the  Bench  and  Bar  of  California.  343 

forth  her  marriage  to  Senator  Fair  and  praying  for  an  order  allowing  her  the 
sum  of  five  thousand  dollars  per  mionth  for  her  support  and  maintenance, 
such  allowance  to  date  from  the  day  of  Mr.  Fair's  death.  This  application 
was  bitterly  contested  both  by  the  executors  and  by  the  children  of  Senator 
Fair.  The  matter  came  on  for  hearing  on  the  12th  of  February,  1900,  and 
occupied  the  attention  of  Judge  James  M.  Proutt,  of  Department  10,  of  the 
Superior  Court,  from  that  time  until  the  i8th  day  of  May  following.  This 
application  raised  all  the  old  issues  once  more,  and  sought  to  have  the  judg- 
ment of  the  court  on  all  documents  for  which  Mrs.  Craven  was  sponsor.  The 
whole  case  w^as  gone  into,  and  the  deeds,  the  marriage  contract,  the  pencil  will, 
the  republication  letter,  and  the  Grand  Opera  House  note,  were  all  considered 
and  passed  upon  in  the  ultimate  ruling  of  the  court. 

On  the  trial  of  this  proceeding,  in  order  to  support  the  marriage  contract, 
Mrs.  Craven  attempted  to  show  a  solemnization,  she  claiming  her  marriage 
to  Senator  Fair  was  solemnized  before  a  justice  of  the  peace  at  Saucelito,  and 
in  support  of  this  claim  introduced  an  affidavit  of  one  Simpton.  a  justice  of  the 
peace  of  Saucelito,  attesting  to  such  a  marriage  before  him. 

As  developed  upon  the  trial,  however,  it  appeared  that  one  Adolph  Silva, 
a  warm  personal  friend  of  Charles  L.  Fair,  had  been  approached  by  Mrs. 
Craven  for  the  purpose  of  securing  a  justice  of  the  peace  who  would  testify 
to  having  performed  the  marriage  ceremony.  Silva,  seeing  a  way  to  assist 
his  friend,  Charles  L.  Fair,  entered  into  an  arrangement  with  her  to  secure 
the  justice  of  the  peace,  and  did  arrange  a  meeting  between  the  justice  and 
Mrs.  Craven,  and  later,  a  meeting  with  Mrs.  Craven's  attorneys,  at  which  time 
an  affidavit  of  the  justice,  Simpton,  was  drawn  up  and  sworn  to.  But  upon 
the  trial  1)oth  Silva  and  Simpton  swore  to  the  true  facts  and  exposed  the  whole 
plot. 

In  the  many  proceedings  that  Mrs.  Craven  instituted  against  this  estate, 
and  the  number  of  times  she  was  on  the  witness  stand  under  examination  as 
to  her  relations  with  Senator  Fair,  while  she  testified  repeatedly  that  she  was 
his  contract  wife,  yet  she  never  once  mentioned  the  fact  that  there  had  been 
a  solemnization,  until  just  before  the  trial  on  this  family  allowance  application. 
As  a  result  of  the  persistence  of  her  efforts  to  establish  herself  as  the  widow  of 
Senator  Fair,  she  now  awaits  a  criminal  trial  on  the  charge  of  perjury.  The 
last  act  in  this  drama  has  been  well  exploited  in  the  daily  newspapers. 

The  decision  of  the  court  on  this  application  for  family  allowance,  was 
most  sweeping,  and  judicially  determined  that  all  documents  under  consid- 
eration were  forged  and  simulated,  and  that  her  claim  for  an  allowance  was 
without  foundation. 

On  the  hearing  of  this  petition  for  a  family  allowance,  much  expert  testi- 
mony was  introduced  and  many  photographs  and  enlargements  of  both  the 
genuine  and  disputed  signatures  of  Senator  Fair  were  offered  and  received 
in  evidence. 


344  History  of  the  Bench  and  Bar  of  California. 

Mr.  George  E.  Crothers,  one  of  the  attorneys  for  the  executors,  conceived 
a  most  novel  and  positive  way  of  showing  the  improbabiUty  of  the  signatures 
to  the  disputed  writings  being  those  of  Fair.  There  were  1299  checks  of  James 
G.  Fair,  consecutively  numl)ered,  introduced  in  evidence  as  exemplars  of  his 
signature.  Purelv  as  a  matter  of  comparison,  the  number  of  times  the  twelve 
most  obvious  characteristics  of  the  marriage  contract  signature  are  found  in 
the  above  mentioned  1299  checks,  are  as  follows  : 

In  the  marriage  contract  the  letter  "J"  is  formed  with  two  strokes.  In  all 
the  1299  checks  introduced,  this  formation  of  the  letter  "J"  does  not  occur 
once. 

The  letters  "J"  and  "a"  are  joined  in  the  marriage  contract,  and  it  does 
not  so  occur  in  the  1299  checks  introduced. 

The  open  "a,"  as  occurs  in  the  word  "James,"  in  the  marriage  contract, 
occurs  but  six  times  in  the  1299  checks  introduced,  and  so  on  through  the 
twelve  characteristics  of  the  marriage  contract;  and  as  its  being  possible  for 
all  these  twelve  characteristics  to  appear  in  one  signature,  the  probability  of 
their  so  occurring  is  figured  out  by  Mr.  Crothers  as  being  once  in  19.768,073.- 
714,260,245.706,581,686.159,683,246  signatures.  This  is  a  most  remarkable 
assertion  to  make,  yet  it  is  claimed  to  be  mathematically  correct. 

For  the  purpose  of  getting  the  matter  into  figures,  Mr.  Crothers  had  to 
assume  that  those  characteristics  which  did  not  appear  at  all  in  the  exemplars 
did  appear  therein  once — that  is,  in  applying  the  law^  of  chance  to  the  proposi- 
tion that  all  twelve  characteristics  of  the  marriage  contract  signature  did  appear 
in  one  signature  admittedly  genuine,  he  figured  upon  the  assumption  (which 
was  contrary  to  fact)  that  each  characteristic  that  did  not  appear  at  all  did 
appear  once. 

Up  to  this  time,  the  representations  made  by  Mrs.  Craven  to  the  children 
of  Senator  Fair  and  to  their  attorneys,  seemed  so  plausible,  and  from  the  docu- 
ments shown  by  her  to  them,  were  so  conclusive  that  it  is  but  little  wonder 
that  they  ga\'e  credence  to  her  claims,  and.  in  consequence,  afforded  her  their 
support.  But  time  threw  light  into  the  darkness,  and  the  suspicions  of  the 
heirs  were  aroused  as  to  the  genuineness  of  these  various  documents,  and  as 
the  evidence  accumulated  there  was  at  last  apparent  a  most  cleverly  laid 
scheme. 

Necessarily  under  this  changed  condition  of  affairs,  the  children  withdrew 
their  support,  and  filed  a  contest  of  the  pencil  will. 

The  next  move  was  an  application  by  Mrs.  Craven  to  set  aside  the  decree 
of  partial  distribution  of  the  real  estate  to  the  children  of  deceased,  which 
was  denied.  Then  followed  an  application  by  Mrs.  Craven,  under  Section  1664 
of  the  Code  of  Civil  Procedure,  to  determine  heirship,  upon  which  a  citation 
was  issued  commanding  all  persons  having  or  claiming  to  have  an  interest  in 
the  estate,  to  appear  and  set  forth  the  nature  and  title  of  their  respective  inter- 
ests. The  necessary  appearances  were  made  in  conformitv  with  the  Code,  but 


History  of  the  Bench  and  Bar  of  California.  345 

as  yet  the  petitioner  has  not  elected  to  push  her  petition  to  a  determination. 
But  she  further  put  herself  on  record  in  the  shape  of  a  petition  for  distribution 
of  her  net  share,  as  surviving  wife  and  widow  of  James  G.  Fair,  deceased,  of 
the  income  which  has  heretofore  accrued  to  the  estate.  This  petition  is  in  a 
like  condition  as  the  former. 

This  account  of  the  estate  thus  far  administered,  covers  a  period  of  six 
years  of  continuous  litigation.  The  vital  questions  are  still  undetermined.  In 
addition  to  the  proceedings  above  outlined,  the  executors  have  instituted  as 
many  as  sixty-seven  suits,  of  all  characters  and  descriptions,  and  have  defended 
twenty-six  actions  brought  against  them  in  their  capacity  as  executors.  Of 
these  suits  nine  have  been  appealed  to  the  Supreme  Court  of  this  State,  by 
either  one  party  or  the  other.  There  have  been  four  actions  in  the  Federal 
Courts,  and  one  action  has  been  carried  to  the  United  States  Supreme  Court. 
Thus  will  be  seen  the  difficulties  that  beset  the  administration  of  a  large  estate. 

The  attorneys  who  have  been  engaged  by  one  side  or  another  of  this  inter- 
esting and  protracted  contest,  represent  the  leading  lawyers  of  the  State.  A 
list  of  them,  with  the  interests  for  which  they  stand,  will  not  be  amiss. 

James  S.  Angus  and  Thomas  G.  Crothers,  as  executors  and  trustees,  are 
represented  by  William  M.  Pierson,  Esquire,  and  George  E.  Crothers,  Esquire. 

The  other  executor  and  trustee,  W.  S.  Goodfellow,  is  represented  by  Garret 
A\'.  McEnerney,  Esquire,  with  Hon.  Robert  Y.  Hayne  as  counsel. 

The  daughters,  Theresa  A.  Oelrichs  and  Virginia  Vanderbilt,  are  repre- 
sented by  r^Iessrs.  Lloyd  &  Wood.  Wilson  &  Wilson,  and  Bishop  &  Wheeler, 
with  Judge  Garber.  Wm.  F.  Herrin  and  E.  S.  Pillsbury  of  counsel. 

The  son,  Charles  L.  Fair,  is  represented  by  Knight  &  Heggerty,  and  Hon. 
Jas.  H.  Budd,  with  Bishop  &  Wheeler,  of  counsel. 

Hon.  Van  R.  Paterson  represents  the  various  legatees  and  devisees. 

Nettie  R.  Craven  has,  at  different  stages  of  the  drama,  been  represented 
by  the  following  counsel :  Hon.  D.  M.  Delmas ;  Delmas  &  Shortridge ;  Den- 
son,  Oatman  &  Denson ;  Gen.  John  H.  Dickinson ;  Abe.  Reuf ;  Judge  Curtis, 
of  New  York,  and  Pence  &  Pence. 

THE  EDITOR. 


^  THE    STATE  J' 
SUPREME  COURT 

from   its 

ORGANIZATION 


1 


(^^t^i^^tjbi^^i^i^ 


HISTORY  of  the 
BENCH  ^nd  BAR 
of  CALIFORNIA 


> "??  ^  "=;?  'V  "-^p  "^p  <:;: 


T/je  STATE  SUPREME  COURT 


The  folluwing  recortl  is  from  the  Cahkjniia  Bhie  Book,  or  State  Roster, 
for    1895,   and   is   supplemented   to    1901  : 

The  orignal  constitution  of  Cahfornia,  adopted  in  1849,  provided  for 
a  Supreme  Court,  to  consist  of  a  Chief  Justice  and  two  Associate  Justices. 
It  further  provided,  in  Section  3.  of  Article  VI:  "The  Justices  of  the 
Supreme  Court  shall  he  elected  at  the  general  election  hy  the  ([ualified 
electors  of  the  State,  and  shall  hold  their  office  for  a  term  of  six  years  from 
the  first  day  of  January  next  after  the  election;  provided,  that  the  legisla- 
ture shall,  at  its  first  meting,  elect  a  Chief  Justice  and  two  Associate  Jus- 
tices of  the  Supreme  Court,  hy  joint  vote  of  hoth  houses,  an.d  so  classify 
them  that  one  shall  go  out  of  office  every  two  years.  After  the  first  elec- 
tion the  senior  Justice  in  commission  shall  he  the  Chief  Justice." 

The  first  legislature,  on  Fehruary  14,  1850,  pas.sed  an  act  to  organize 
the  Court.  In  that  Act  it  was  provided  that  one  Justice  should  be  elected 
in  1 85 1,  one  at  each  general  election  e\er}  second  year  thereafter,  and 
that  the  Governor  should  fill  vacancies  by  commission,  which  should  expire 
at  the  suhsecpient  general  election,  when  the  wicancy  should  be  tilled  by 
an  election  for  the  remainder  of  the  unexpired  term.  ( )n  the  _'8th  an 
Act  was  passed  authorizing  the  clerk  of  the  Sui)rcme  Cotul  to  rent  a  suit- 
able room  in  vSan  Francisco  for  the  March  term,  1X50,  proxided  that  the 
rent  of  such  room  should  not  exceed  $[,000  per  mi)nth.  On  March  5th 
the  legislature  fixed  tlie  salary  of  each  Justice  at  .Sio.ooo  per  annmn.  (  )n 
April  13th  an  .\ct  was  jiassed  i)ro\'i(ling  for  certain  special  terms  in  San 
Francisco,  and  that  aftc!"\\ards  the  sessions  of  the  coin"t  should  be  held 
at    the    seat   of   go\-ernment. 

In  accordance  with  the  i)rovisions  of  the  constitution  above  (|uoted, 
the  first  legislature,  on  December  22,  i8.4().  elected  v^.  C.  Hastings  Chief 
Justice,  Henry  A.  Lyons  first  Associate  Justice,  and  Nathaniel  Bennett 
second  Associate  Justice.  On  February  1,  1850,  the  legislature  passed 
a  resolution  classifying  the  Justices  so  that  Hastings  shoulcl  go  out  of  offiice 


350  History  of  the  Bench  and  Bar  of  California. 

at  the  end  of  two  years  from  January  i.  1850,  Lyons  at  the  end  of  four 
years,  and  Bennett  at  the  end  of  six  years  from  that  date.  On  March  11, 
1 85 1,  a  law  was  passed  to  have  one  Justice  elected  in  1852,  and  one  at  the 
general  election  every  second  year  thereafter;  but  on  April  28th,  another  Act 
was  passed  providing  for  the  election  of  one  in  1851,  and  one  every  second 
year  thereafter.  This  legislature  also  passed  a  law  providing  that  the  terms 
of  court,  until  January  1,  1852.  should  be  held  in  San  Francisco,  and  after 
that  at  the  seat  of  government.  On  May  24th,  an  Act  was  passed  pro- 
viding that  thereafter  the  sessions  of  the  court  should  be  held  at  the  capital 
of  the  State.  The  salaries  of  the  Justices  were  reduced  to  $6,000  each  on 
April  21,   1856. 

justice  Hastings  served  out  his  term,  and  at  the  general  election  held 
September  3,  1851,  Solomon  Heydenfeldt  w^as  elected  to  succeed  him.  Hey- 
denfeldt  took  office  January  i,  1852,  and  resigned  January  6,  1857.  Gov- 
ernor Johnson,  on  the  13th,  appointed  Peter  H.  Burnett  to  fill  the  vacancy, 
and  Burnett  resigned  October  12,  1857.  On  the  13th  Governor  Johnson 
appointed  Stephen  J.  Field  to  serve  out  the  unexpired  term.  Field  had 
been  elected  on  September  2,  1857,  for  the  full  term.  This  term  began  on 
January  i,  1858.  In  1863.  President  Lincoln  appointed  Field  one  of  the 
Associate  Justices  of  the  Supreme  Court  of  the  United  States,  and  on  May 
20th  of  that  year  he  resigned  his  seat  on  the  California  bench.  The  next 
Governor,  Stanford,  appointed  E.  B.  Crocker  to  fill  the  vacancy,  and  he 
served  until  the  taking  effect  of  the  constitutional  amendments  of  1862. 

Justice  Lyons  resigned  March  31,  1852,  and  on  April  2d,  Governor  Bigler 
appointed  Alexander  Anderson  to  fill  the  vacancy,  and  he  qualified  on  the 
6th.  At  the  general  election  on  November  2,  1852,  Alexander  Wells  was 
elected  for  this  short  term,  and  he  took  his  seat  on  the  bench  January  3, 
1853.  Wells  was  re-elected  for  the  full  term,  September  7,  1853,  and  he 
assumed  ofifice  by  virtue  of  that  election  January  4,  1854.  He  died  October 
31,  1854,  and  on  November  24th,  Governor  Bigler  appointed  Charles  H. 
Bryan  to  fill  the  vacancy.  At  the  general  election  held  September  5,  1855, 
David  S.  Terry  was  elected  by  the  people,  and  he  assumed  office  on  November 
15th.  Terry  resigned  September  12,  1859,  to  participate  in  the  duel  with 
Senator  David  C.  Broderick.  On  the  20th  Governor  Weller  appointed  W.  W. 
Cope  to  fill  the  Terry  vacancy.  Cope  had  been  elected  for  the  full  term  at 
the  election  held  on  September  7,  1859,  and  he  took  office  under  that  election 
on  January  2d  following,  and  served  until  the  remodeling  of  the  court  in 
r8f)4. 

Justice  Bennett  resigned  October  3.  1851,  and  on  the  nth  Governor 
McDougall  appointed  Hugh  C.  Murray  to  fill  the  vacancy.  On  November 
2.  1852,  Murray  was  elected  to  succeed  himself,  and  he  took  office  by  virtue 
of  that  election  on  January  3d  following.  Murray  was  elected  for  the  full 
term  on  Septeni])er  5.   1855,  ^^"t  he  died  September  18,   1857,  and  Governor 


History  of  the  Bench  and  Bar  of  California.  351 

Johnson  appointed  Peter  H.  Burnett  on  October  12th  to  succeed  him.  At 
the  general  election  on  September  t.  1858,  Joseph  G.  Baldwin  was  elected 
to  fill  the  remainder  of  the  vacanc)-,  and  he  assumed  office  on  October  2, 
1858.  On  September  4,  1861,  Edward  Norton  was  elected  for  the  full  term. 
Norton  took  office  on  January  6th  following-,  and  served  until  the  change 
was  effected  by  the  adoption  of  the  constitutional  amendments  of  1862. 

In  1862  the  State  constitution  was  amended  to  constitute  the  Supreme 
Court  of  a  Chief  Justice  and  four  Associate  Justices,  and  it  provided  that 
the  Justices  should  be  elected  at  special  elections,  to  be  provided  for  by  law, 
at  which  elections  only  judicial  and  school  officers  should  be  elected.  It 
provided  further :  "The  first  election  for  Justices  of  the  Supreme  Court  shall 
be  held  in  the  year  1863.  The  Justices  shall  hold  their  offices  for  the  term  of 
ten  years  from  the  first  day  of  January  next  after  their  election,  except  those 
elected  at  the  first  election,  who,  at  their  first  meeting,  shall  so  clasify  them- 
selves, by  lot,  that  one  Justice  shall  go  out  of  office  every  two  years.  Tlie 
Justice  having  the  shortest  term  to  serve  shall  be  Chief  Justice." 

On  March  21,  1863,  the  legislature  passed  an  Act  providing  that  there 
should  be  held  on  the  third  Wednesday  in  October,  1863,  and  every  two  years 
thereafter,  an  election,  to  be  called  "Special  Judicial  Election,"  at  which 
should  be  elected  the  Supreme  Justices  and  other  judicial  and  school  officers. 
On  April  20th  an  Act  was  passed  to  provide  for  the  organization  of  the  new 
court,  and  it  was  enacted  that  when  a  vacancy  should  occur,  the  Governor 
should  fill  it  by  the  appointment  of  a  person,  who  should  hold  until  tlie  next 
judicial  election,  and  the  Justice  elected  by  the  people  at  such  election  should 
hold  office  for  the  balance  of  the  unexpired  term.  It  was  also  provided  that 
the  terms  of  court  should  be  held  at  the  seat  of  government.  The  salaries  of 
the  Justices  were  fixed  at  $6,000  each.  The  salaries  have  not  since  been 
changed. 

Under  this  constitutional  provision,  on  October  21,  1863,  Oscar  L.  Shafter, 
Lorenzo  Sawyer,  Silas  W.  Sanderson,  John  Currey,  and  A.  L.  Rhodes  were 
elected  Supreme  Court  Justices.  Tlie  new  court  organized  January  2,  1864, 
and  in  accordance  with  law  the  Judges  drew  lots  to  determine  the  tenure  of 
their  official  terms,  with  the  following  result :  Shafter  drew  for  ten  years, 
Rhodes  for  eight.  Sawyer  for  six,  Currey  for  four,  and  Sanderson  for  two. 

Justice  Sanderson  was  re-elected  to  succeed  himself  on  October  18,  1865. 
Sanderson  resigned  January  4.  1870.  On  the  8th  Governor  Haight  appointed 
Jackson  Temple  to  fill  the  vacancy,  and  he  assumed  the  duties  of  the  office  on 
the  loth.  On  Oqtober  18,  1871,  Addison  C.  Niles  was  elected  Justice  to  fill 
the  vacancy.  He  took  office  January  ist  following,  and  remained  on  the 
bench  until  the  new  constitution  took  effect. 

Royal  T.  Sprague  was  elected  to  succeed  Currey  on  October  16,  1867, 
and  took  office  January  6,  1868,  but  died  February  24,  1872,  and  on  the 
4th  of  March  Governor  Booth  appointed  Isaac  S.  Belcher  to  fill  the  vacancy. 
On  October  15,  1873,  Elisha  W.  McKinstry  was  elected  to  the  office.      McKin- 


352  History  of  the  Bench  and  Bar  of  California. 

slry  took  oftice  January  u,  1874.  and  served  until  the  reorganization  of  the 
court  under  the  new  constitution. 

On  October  20.  1869,  W'ilhani  T.  \\allace  was  elected  to  succeed  Sawyer. 
Wallace  assumed  office  on  January  10.  1870.  and  served  until  the  new  con- 
stitution effected  a  change  in  the  ccmrt. 

On  October  18.  1871,  Rhodes  was  elected  to  succeed  himself,  and  he  served 
until  the  new  court  came  in. 

Justice  Shafter  resigned  December  11.  1867.  and  (governor  Haight  appointed 
J.  B.  Crockett  to  succeed  him.  On  October  20,  1869,  Crockett  was  elected 
to  succeed  himself,  and  he  served  until  the  change  was  effected  by  the  new 
constitution. 

In  1879  the  people  adopted  the  new  constitution,  which  constituted  the 
Supreme  Court  of  a  Chief  Justice  and  six  Associate  Justices,  and  it  provided  : 
"The  Chief  Justice  and  the  Associate  Justices  shall  be  elected  by  the  qualified 
electors  of  the  State-at-large.  at  the  general  State  elections,  at  the  time  and 
places  at  which  State  officers  are  elected,  and  the  term  of  office  shall  be  twelve 
years  from  and  after  the  first  Monday  after  the  first  day  of  January  the  next 
succeeding  their  election:  jirovided..  that  the  six  Associate  Justices  elected 
at  the  first  election  shall,  at  their  first  meeting,  so  classify  themselves,  by  lot, 
that  two  of  them,  shall  go  out  of  office  at  the  end  of  four  years,  two  of  them 
at  the  end  of  eight  years,  and  two  of  them  at  the  end  of  twelve  years,  and 
an  entry  of  such  classification  shall  be  made  in  the  minutes  of  the  court  in 
bank,  signed  by  them,  and  a  duplicate  thereof  shall  be  filed  in  the  office  of 
the  Secretary  of  State.  If  a  \'acancy  occur  in  the  office  of  a  Justice,  the 
Go\ernor  shall  appoint  a  person  to  hold  the  office  until  the  election  and  quali- 
fication of  a  Justice  to  fill  the  vacancy,  wdiich  election  shall  take  place  at  the 
next  succeeding  general  election,  and  the  Justice  so  elected  shall  hold  the 
office  for  the  remainder  of  the  unexpired  term.  The  first  election  of  the  Justices 
sh.all  be  at  the  first  general  election  after  the  adoption  and  ratification  of  this 
constitution." 

At  the  election  held  on  September  3.  1879,  Robert  F.  Morrison  was  elected 
Chief  Justice.  At  the  same  time  Samuel  Bell  McKee,  Er.skine  M.  Ross.  John 
R.  Sharpstein,  J.  D.  Thornton.  K.  W.  McKinstry,  and  M.  H.  Myrick  were 
elected  Associate  Justices.  The  new  court  organized  January  5,  1880.  and 
on  the  classification  by  lot.  Ross  and  Sharpstein  drew  for  four  years,  McKee 
and  Myrick  for  eight  years,  and  Thornton  and  McKinstry  for  twelve  years. 

On  November  7,  1882.  Sharpstein  and  Ross  were  elected  to  succeed  them- 
selves. They  assumed  office,  by  virtue  of  this  election.  January  i.  1883.  as 
by  the  'provisions  of  Section  10  of  the  schedule  to  the  new  constitution,  the 
Term  of  all  officers  elected  at  the  first  election  under  it  Avere  made  one  A'ear 
shorter  than  the  terms  fixed  by  law  or  by  the  constitution. 

Judge  Ross  sent  his  resignation  to  the  Governor  on  October  i,  1886.  and 
at  the  election  on  Xovcmber  2,  following.  Jackson  Teiuple  was  chosen  to 
succeed  him. 


History  of  the  Bench  and  Bar  of  California.  353 

At  the  same  election  Van  R.  Patterson  and  Thomas  B.  McFarland  were 
elected  Associate  Justices  to  succeed  McKee  and  Myrick. 

Chief  Justice  Morrison  died  March  2,  1887,  and  Niles  Searls  was  appointed 
by  Governor  Bartlett  to  serve  until  the  next  election,  November  6,  1888.  At 
that  election  W.  H.  Beatty  was  chosen  Chief  Justice  to  fill  out  the  unexpired 
lerm. 

Judge  McKinstry  resigned  July  30,  1888,  to  take  effect  October  i,  1888, 
and  on  September  22d,  of  that  year,  Governor  Waterman  appointed  John 
D.  Works  to  fill  the  vacancy,  and  at  the  election  held  on  November  6,  1888, 
Works  was  chosen  to  succeed  himself. 

On  June  25,  1889,  Temple  resigned,  and  Governor  ^^'aterman  appointed 
C.  N.  Fox,  of  Alameda,  to  fill  the  unexpired  term. 

At  the  general  election  in  1890,  W.  H.  Beatty  was  elected  for  the  full 
term  of  tw'elve  years  to  succeed  himself,  and  Ralph  C.  Harrison  and  C.  H. 
Garoutte,  Associate  Justices  for  twelve  years,  to  succeed  John  D.  Works  and 
John  D.  Thornton,  and  J.  J.  DeHaven  for  the  short  term  of  four  years,  to 
succeed  Charles  N.  Fox. 

Governor  Markham.  February  2,  1893,  appointed  W.  F.  Fitzgerald,  of 
Los  Angeles,  to  fill  the  unexpired  term  of  Sharpstein,  deceased. 

On  April  28,  1894,  William  C.  Van  Fleet  w^as  appointed  by  Governor 
Markham  to  fill  the  vacancy  caused  by  the  resignation  of  Van  R.  Paterson, 
until  the  next  general  election. 

At  the  general  election  in  1894,  F.  W.  Henshaw  and  Jackson  Temple 
were  elected  Associate  Justices  for  tw^elve  years  to  succeed  J.  J.  DeHaven  and 
Wi.  F.  Fitzgerald,  and  William  C.  Van  Fleet  for  the  short  term  of  four 
years  to  succeed  Van  R.  Paterson,  resigned. 

At  the  general  election  in  November,  1898,  Thomas  B.  McFarland  and 
Walter  Van  Dyke  Avere  elected  Associate  Justices,  to  succeed  the  first  named 
and  William  C.  Van  Fleet,  and  entered  on  their  terms  of  twelve  years  each, 
in  January,   1899. 

The  following  is  a  list  of  persons  who  have  served  as  Chief  Justices, 
together  with  the  terms  of  service : 

S.  C.  Hastings,  from  December  22,  1849,  t*^  January  i,  1852. 

Henry  A.  Lyons,  January  i,  1852,  to  March  31,  1852. 

Hugh  C.  Murray,  March  31,  1852,  to  September  18,  1857. 

David  S.  Terry,  September  18,  1857,  to  September  12,  1859. 

Stephen  J.  Field,  September  12,  1859,  to  May  20,  1863. 

W.  W.  Cope,  May  20,  1863,  to  January  2,  1864. 

Silas  W.  Sanderson,  January  2,  1864,  to  January  t,  1866. 

John  Currey,  January  i,  1866,  to  January  i,  1868. 

Lorenzo  Sawyer,  January  i,  1868,  to  January  i,  1870. 

A.  L.  Rhodes.  January  i,  1870,  to  January  i,  1872. 

Royal  T.  Sprague,  January  i,  1872,  to  February  24,  1872. 

William  T.  Wallace,  February  24,  1872,  to  January  i,  1880. 


354  History  of  the  Bench  and  Bar  of  California. 

Robert  F.  Morrison,  January  i,  1880,  to  March  2,  1887. 
Niles  Searls,  appointed  by  Governor  Bartlett,  April  19,  1887. 
William  H.  Beatty,  elected  by  the  people  November  6,   1888:  re-elected 
November  4,  1890. 

Dates  and  places  of  death  of  Supreme  Court  Justices : 
H.  A.  Lyons  died  at  San  Francisco,  July  27,  1872. 
N.  Bennett  at  San  Francisco,  April  20,  1886. 
H.  C.  Murray  at  Sacramento,  September  18,  1857. 
A.  Wells  at  San  Jose,  October  31,  1854. 

C.  H.  Bryan  at  Carson  City,  Nevada,  May  14,  1887. 
J.  G.  Baldwin  at  San  Francisco,  September  29.  1864. 
E.  Norton  at  London,  May  12,  1872. 

E.  B.  Crocker  at  Sacramento,  June  24,  1875. 
O.  L.  Shafter  at  Florence,  Italy,  January  22,  1873. 
S.  W.  Sanderson  at  San  Francisco,  June  24,  1886. 
R.  T.  Sprague  at  Sacramento,  February  24,  1872. 
J.  B.  Crockett  at  Fruitvale,  January  15,  1884. 
R.  F.  Morrison  at  San  Francisco,  March  2,  1887. 
S.  B.  McKee  at  Oakland,  March  2,  1887. 

D.  S.  Terry  was  shot  by  David  Neagle  at  Lathrop,  August  14,  1889. 
S.  Heydenfeldt  at  San  Francisco,  September  15,  1890. 

A.  C.  Niles  at  San  Francisco,  January  17,  1890. 

J.  R.  Sharpstein  at  San  Francisco,  December  28,  1892. 

S.  C.  Hastings  at  San  Francisco,  February  19,  1893. 

P.  H.  Burnett  at  San  Francisco,  May  17,  1895. 

Lorenzo  Sawyer  at  San  Francisco,  September  7,  1891. 

Isaac  S.  Belcher  at  San  Francisco,  1898.  :: 


ATTORNEY  GENERALS 
OF    CALIFORNIA 


William  F,  Fitzgerald 


For  Sketfh  see  Page  twx 


•^0(43  ^g(9  '^  f^.ijfe  tm  t^o  (^^ 


HISTORY  of  the 
BENCH  and  BAR 
of  CALIFORNIA 


^9  oja  Cip  OJG  ^  ep  t^Jij  (f^.  ep  ejji) 


ATTORNEY  GENERALS  of  CALIFORNIA 


E.  J.  C.  Kewan  was  elected  by  the  legislature  on  December  22,  1849,  ^^^ 
took  office  the  same  day.  He  resigned  August  13,  1850.  The  State  was 
not  admitted  until  a  month  later.     He  died  at  Los  Angeles,  November  25, 

1879. 

James  A.  McDougall,  elected  October  7,  1850;  resigned  December  30, 
1 85 1.     He  died  at  Albany,  New  York,  September  3,   1867. 

Alexander  Wells,  appointed  by  Governor  McDougal,  January  6,  1852. 
He  died  at  San  Jose,  October  31,   1854. 

S.  C.  Hastings,  elected  September  3,  1851;  took  office  January  5,  1852. 
Died  in  San  Francisco,  February  19,   1893. 

John  R.  McConnell,  elected  September  7,  1853;  took  office  January  2, 
1854.     He  died  at  Denver,  August  18,   1879. 

William  M.  Stewart,  appointed  by  Governor  Bigler  June  7,  1854,  to 
fill  the  office  during  the  temporary  absence  of  McConnell  from  the  State 
by  legislative   consent. 

William  T.  Wallace,  elected  September  5,  1855;  took  office  January  7, 
1856. 

Thomas  H.  Williams,  elected  September  2,  1857;  took  office  January  4, 
1858;  re-elected  September  7,  1859;  took  office  January  2,  i860.  He  died 
at    San    Francisco,    February   28,    1886. 

Frank  M.  Pixley,  elected  September  4,  1861  ;  took  office  January  6, 
1862.     Died  at  San  Francisco,  August,   1895. 

J.  G.  McCullough,  elected  September.  1863;  took  office  December  5, 
1863. 

Jo  Hamilton,  elected  September  4,   1867;  took  offiice  December  7,   1867. 

John  Lord  Love,  elected  September  6,  1871  ;  took  office  December  2, 
1871.     Died  at  San  Francisco,  on  July  5,  1899. 

Jo  Hamilton,  elected  Septeml)er   i,   1875;  took  office  December  4,    1875. 

Augustus  L.  Hart,  elected  September  3,  1879;  took  office  January  5, 
1880. 


358  History  of  the  Bench  and  Bar  of  California. 

E.  C.  Marshall,  elected  November  y,  1882;  took  office  January  i,  1883. 
Died  at  San  Francisco,  July  9,  1893. 

G.  A.  Johnson,  elected  November  2,  1886;  took  office  January  3,  1887. 
Died  at  San  Francisco,  September  20,   1894. 

William  H.  H.  Hart,  elected  November  4,  1890;  took  office  January  5, 
1891. 

William  F.  Fitzgerald,  elected  November  6,  1894;  took  office  January 
7,   1895. 

Tirey  L.  Ford,  elected  November,  1898;  took  office  January,  1899. 


OUR  FIRST  WATER 
RIGHTS  DECISION 


BY  7HE  EDITOR 


Jib  dl(b  c^  oSb  tjja  efe  t^9  tilSb  silis  c^ 


HISTORY  of  the 
BENCH  5  ncf  BAR 
of  CALIFORNIA 


'  f  ^jT-  "^ 


OUR  FIRST  WATER  RIGHTS  DECISION 


Mr.  D.  G.  Reid,  of  the  leading  law  firm  of  Reid  &  Bartlett,  having  offices 
at  Redding,  Shasta  county,  and  Weaverville,  Trinity  county,  writing  from  the 
first  place  named,  brings  to  our  notice  the  case  of  Davis  vs.  Ware,  decided  by 
Hon.  Joseph  W.  McCorkle,  Judge  of  the  Ninth  Judicial  District  Court,  for 
Trinity  county,  April  21st,  1854.     Mr.  Reid  says: 

'T  have  looked  up  the  Supreme  Court  decisions  and  I  find  that  the  first 
case  in  the  California  Reports  on  this  question  is  reported  in  the  fifth  volume 
at  page  140, — the  case  of  Mathew  W.  Irwin  vs.  Robert  Phillips,  et  al.,  decided 
by  the  Supreme  Court  in  January,  1855.  I  fi"*^^  that  the  decision  of  the  lower 
Court,  Tenth  Judicial  District,  for  Nevada  County,  was  rendered  and  decided 
November  28,  1854.  You  can  see  from  the  above  that  the  enclosed  decision  was 
rendered  more  than  seven  months  prior  to  the  case  of  Irwin  vs.  Phillips,  and  I 
am  satisfied  is  the  first  decision  in  the  State  which  goes  outside  of  the  Common 
Law  doctrine." 

Judge  McCorkle's  decision  is  as  follows : 

"This  action  is  brought  for  damages.  The  complaint  states  that  plaintiffs 
have  constructed  a  race  or  canal  for  the  puri)ose  of  conducting  the  waters  of 
West  Weaver  Creek  to  certain  mining  claims  which  they  were  in  possession 
of  and  working,  known  as  Davis  &  Co.'s  race,  and  that  defendant  had  by  con- 
structing a  dam,  diverted  the  waters  of  West  Weaver  Creek  to  other  diggings, 
contrary  to  the  usages  and  customs  of  the  miners  on  West  Weaver. 

"The  answer  set  out  that  the  dam  by  which  the  waters  of  West  Weaver 
were  diverted  was  constructed  in  the  year  1851,  for  the  purpo.se  of  conducting 
the  waters  of  said  creek  to  the  mines  in  the  \icinity  of  Weaverville;  that  the 
race  of  defendants  was  commenced  in  the  year  1850  and  completed  in  the 
spring  of  1851,  and  was  in  fact  completed  and  in  operation  for  the  purpose 
of  mining  one  year  before  the  plaintiff  began  to  construct  the  race  known  as 
Davis  &  Co.'s,  far  below  that  of  defendant;  that  the  waters  of  W'est  Weaver 
so  diverted  w-as  for  mining  purposes,  etc.,  according  to  the  usages  and  regula- 
tions of  miners  in  the  county  of  Trinity,  etc. ;  that  plaintiffs  according  to  the 


362  History  of  the  Bench  and  Bar  of  California. 

regulations  of  the  miners,  were  only  entitled  to  four  "Tom  Heads"  of  water, 
for  the  purpose  of  working  the  bed  of  West  Weaver  Creek  as  ascertained  and 
settled  by  a  meeting  of  miners  held  at  Weaverville  on  the  7th  of  June,  1853, 
regularly  called  and  attended  by  the  miners  of  West  Weaver  Creek,  and  at 
which  the  following  regulations  were  made :  'Resolved,  that  the  aforesaid 
race  companies  (meaning  those  in  the  vicinity  of  Weaverville),  be  entitled 
according  to  their  priority  of  right  to  so  much  of  the  water  of  West  Weaver 
Creek  as  their  respective  races  convey:  provided  always,  that  sufficient  water 
be  allowed  to  run  in  the  natural  channel  of  said  creek  for  the  benefit  of  miners 
at  present  working  or  who  may  hereafter  work  the  bed  of  said  creek,  and  that 
four  "Tom  Heads"  shall  be  sufficient  for  that  purpose;"  that  at  the  same  meet- 
ing a  further  regulation  was  made  to  the  effect  that  any  individual  or  company 
who  may  construct  a  race  for  the  conveyance  of  the  water  of  any  gulch  or 
creek  in  this  district  shall  be  protected  in  the  right  to  said  water,  provided  it  is 
used  for  mining  purposes.  It  is  also  stated  in  the  answer  that  defendants,  in 
compliance  with  the  above  regulations,  permitted  four  Tom  Heads  of  water 
to  run  in  the  natural  channel  of  West  Weaver  Creek,  for  the  purpose  of  sup- 
plying the  miners  thereof  with  water,  etc.  To  the  answer  a  demurrer  is  filed 
admitting  all  the  facts  set  out  as  true,  and  claiming  that  they  do  not  constitute 
a  legal  or  sufficient  defense. 

"The  question  and  rights  involved  in  this  case  are  of  great  importance 
to  the  mining  population  of  this  as  well  as  the  other  mining  counties  of  this 
State,  and  upon  their  equitable  and  fair  adjustment  depends  not  only  the  quiet 
and  peace  of  the  community,  but  to  a  great  extent  the  prosperity  and  success 
of  the  miners  and  the  full  development  of  the  vast  mineral  resources  of  the 
county. 

"This  court  cannot  but  perceive  the  inapplicability  of  the  doctrine  of  the 
common  law  to  the  state  of  things  presented.  West  Weaver  Creek  flows 
through  and  drains  lands  that  are  strictly  and  exclusively  mineral,  and  the 
only  business  and  occupation  of  the  mass  of  people  in  its  vicinity  is  mining 
for  gold.  Water  is  an  indispensable  and  necessary  element  for  mining  opera- 
tions, and  the  application  of  the  doctrines  of  the  common  law  in  regard  to 
water  courses,  as  established  and  applied  to  agricultural  and  manufacturing 
counties,  to  our  mineral  regions,  would  not  only  not  tend  to  foster  and  pro- 
tect the  mining  interest,  but  absolutely  retard  and  in  course  of  time  destroy  it. 
The  beds  of  most  of  the  creeks  and  streams  in  the  mineral  regions  have  been 
worked  out,  while  extensive  gold  fields  lie  unoccupied  and  untouched  yet,  for 
want  of  water,  but  which  by  the  construction  of  canals  for  the  conducting  of 
water  on  and  through  them,  will  yield  good  wages  to  the  miners  for  3^ears  to 
come,  and  furnish  thousands  with  constant  employment,  who  otherwise  would 
be  compelled  to  lay  idle,  except  during  the  rainy  season.  The  statutes  of  the 
State  have,  however,  to  some  extent,  relieved  this  court  from  the  responsi- 
bility of  making  a  decision  in  the  case,  which,  while  it  would  protect  the 


History  of  the  Bench  and  Bar  of  California.  363 

interests  of  the  great  mass  of  the  miners  of  this  vicinity,  would  at  the  same 
time  be  in  direct  conflict  with  the  doctrines  of  the  common  law.  The  "usages 
and  regulations"  of  the  miners  are  legalized  by  the  law-making  power  and 
adopted,  and  made  as  much  a  part  of  the  law  of  the  State,  when  not  in  conflict 
with  the  constitution  and  statutes,  as  the  common  law  itself,  and  should  be 
enforced  by  the  courts  as  such.  With  this  view  of  the  state  of  the  case  and 
the  law,  the  (juestion  involved  can  easily  be  determined.  The  'regulations'  of 
the  miners  in  the  district  and  vicinity,  as  set  out  in  the  defendant's  answer, 
give  to  the  defendants  the  right  to  use  all  the  water  of  West  Weaver  Creek, 
except  four  'Tom  Heads,'  for  mining  purposes,  conducted  through  his  race — 
four  'Tom  Heads'  being  deemed  a  sufficient  quantity  for  working  the  bed  of 
the  creek  below  the  dam  of  the  defendant.  In  all  respects,  it  is  admitted,  the 
defendant  has  complied  with  the  'regulations'  as  made  by  the  miners  at  a  regu- 
larly called  meeting  for  the  purpose,  which  the  plaintiffs  themselves  attended. 
The  decision  of  the  court  therefore  is  that  the  demurrer  be  overruled  and  judg- 
ment be  rendered  for  the  defendant." 

Judge  McCorkle  had  been  a  member  of  the  assembly  from  Sutter  county 
in  1 85 1.  A  year  prior,  at  the  first  legislative  session,  he  was  defeated  for 
Judge  of  the  Eighth  District  by  Wm.  R.  Turner.  Had  the  legislature  elected 
him,  a  lively  chapter  in  Judge  Field's  career  (his  trouble  with  Turner)  would 
be  unwritten.  It  was  Judge  Field  who  introduced  McCorkle  to  the  assembly 
when  he  took  his  seat  in  that  body.  McCorkle  was  one  of  those  who  voted  to 
impeach  Judge  Levi  Parsons,  of  San  Francisco.  In  September,  1851,  Mc- 
Corkle was  elected  to  the  lower  house  of  congress,  and  served  to  March  4, 
1853.  In  the  following  fall  he  was  chosen  District  Judge  of  the  Ninth  Dis- 
trict, embracing  Butte,  Trinity,  and  other  counties.  When  the  Democratic, 
party  divided  in  1859,  he  acted  with  the  Douglas  wing.  We  met  him  then 
for  the  first  time,  in  State  convention  at  Sacramento. 

McCorkle,  before  he  went  on  the  liench,  fought  a  duel  with  United  States 
Senator  William  M.  Gwin.  The  parties  were  in  "dead  earnest,"  but  were  not 
"dead  shots.''  They  fought  with  rifles,  with  their  backs  turned  at  first,  and 
wheeling  as  the  word  was  given  and  firing  at  once.  The  following  paper, 
signed  by  all  the  seconds,  shows  what  occurred : 

"After  an"  exchange  of  three  ineffectual  shots  between  the  Hon.  William 
M.  Gwin  and  Hon.  J.  W.  McCorkle,  the  friends  of  the  respective  parties, 
having  discovered  that  their  principals  were  fighting  under  a  misapprehension 
of  facts,  mutually  explained  to  their  respective  principals  in  what  the  mis- 
apprehension consisted,  whereupon  Dr.  Gwin  promptly  denied  the  cause  of 
provocation  referred  to  in  Mr.  McCorkle's  letter  of  the  29th  of  May,  and 
Mr.  McCorkle  withdrew  his  offensive  language  uttered  on  the  race-course, 
and  expressed  regret  at  having  used  it.  (Signed)  S.  W.  Inge,  F.  Stuart,  E. 
C.  Marshall,  E.  C.  Fitzhugh,  Geo.  P.  Johnston,  A.  P.  Crittenden.     June  i, 

I8.S.3-" 

Judge  McCorkle  died  in  Maryland,  March  30,  1884. 

THB  EDITOR. 


THE  REMARKABLE 
CONTEMPT  CASE 
OF  PHILOSOPHER 
PICKETT  j^  ^  ^  ^ 


BY  THE  EDITOR 


tijo  t^  t^  cja  tilfb  t^  ^  aia  (^  ti?? 


HISTORY  of  the 
BENCH  and  BAR 
of  CALIFORNIA 


B^^flj^e^e^e^f^e^e^  ef; 


The  REMARKABLE  CONTEMPT  CASE  of 
PHILOSOPHER  PICKETT 


Charles  E.  Pickett  was  in  some  respects  a  remarkable  man.  Of  a  tempera- 
ment not  favorable  to  friendship,  he  yet  made  very  few  real  enemies.  He  was 
a  little  above  the  average  height  and  weight,  with  nothing  about  him  to  attract 
special  attention,  but  few  men  have  ever  been  so  well  known  over  the  whole 
coast.  "There  goes  Philosopher  Pickett!"  Our  attention  was  in  this  way 
directed  to  the  man  for  the  first  time  as  he  walked  by  us  in  Sacramento  in  1855, 
with  a  somewhat  peculiar  gait  and  apparently  in  serious  meditation ;  for  al- 
though it  may  not  be  said  that  he  had  a  thoughtful  face,  he  was  (in  his  way) 
a  great  thinker.  With  what  is  termed  a  "fair"  education,  and  being  a  con- 
stant talker  and  writer,  his  expression  was  commonplace,  although  not  faulty; 
and  as  to  "philosophy,"  he  was  never  accredited  with  having  any  of  the  gen- 
uine article.  He  always  evinced  a  deep  interest  in  public  men  and  measures. 
These  were  the  theme  of  his  tongue  and  pen.  His  habitat  was  in  the  centers 
of  population.  He  always  carried  an  unfailing  supply  of  fun,  in  the  form  of 
anecdotes  and  reminiscences,  and  this  tended  to  make  him  companionable  in 
spite  of  his  abrupt  dogmatism. 

A  certain  young  man  of  San  Francisco,  before  his  admission  to  the  bar, 
in  speaking  to  us  of  a  vagrant,  was  unable  to  recall  the  exact  statutory  words, 
"having  no  visible  means  of  support,"  and  said  that  the  man  had  an  "invisible 
means  of  support."  Pickett  had  "an  invisible  means  of  support."  The  affairs 
and  fate  of  political  parties,  states  and  empires  were  of  pressing  concern  to 
him,  and  he  always  felt  himself  competent  to  discourse  of  them.  He  could  not 
be  accused  of  idleness.  Plis  friends  (or  critics)  who  had  dubbed  him  "phil- 
osopher," called  his  papers  "pronunciamentos."  For  some  of  these,  it  may 
be  for  most  of  them  in  the  earliest  days,  he  got  some  pay  from  newspapers, 
but  adversity  soon  came,  and  abided  with  him.  He  kept  up  appearances  quite 
creditably.  We  were  in  the  sanctum  of  the  San  Francisco  Examiner  in  1870, 
sitting  close  to  Colonel  B.  F.  Washington,  the  editor-in-chief,  and  Geo.  P. 
Johnston,  the  exchange  editor  and  part  owner,  when  Pickett  entered,  holding 
one  of  his  long  manuscripts  in  his  hand.  (Washington  and  Johnston  were  in- 
teresting men.     For  the  duels  in  which  they  took  part,  see  other  pages  of  this 


368  History  of  the  BencJi  and  Bar  of  California. 

History.)  Laying  his  paper  on  the  editor's  tahle,  Pickett  said:  "I  haven't 
put  any  heading  on  this,  Washington ;  please  read  it,  and  give  it  a  proper 
caption."  Johnston,  always  instantaneous,  said,  "Washington,  call  it  'The 
Ravings  of  a  Maniac'  "  Pickett  went  right  out,  saying  nothing,  hut  showing 
he  was  hurt. 

It  was  long  l^efore  this,  in  June,  1858,  that  Pickett  wrote  a  dissertation  on 
"The  Birth,  Character  and  Mission  of  Christ."  He  designed  it  for  a  lec- 
ture, and  to  save  the  expense  of  a  hall  he  waited  on  the  pastors  and  trustees 
of  the  principal  churches,  and  asked  for  the  use  of  their  auditoriums,  but  all 
turned  him  away.  He  was  living  at  San  Francisco  at  the  presidential  election 
of  i860,  and  voted  for  Lincoln,  writing  on  his  ballot  (there  was  no  law 
against  it  then)  that  he  knew  there  w^as  to  be  war  between  the  North  and 
the  Soutli.  and  he  wanted  to  see  it  come  quick  and  be  over.  He  thought 
Lincoln's  election  would  precipitate  it. 

Pickett  was  born  in  Virginia  in  1820.  He  turned  his  eyes  to  this  far-off 
shore  nearly  a  decade  before  the  first  gold  seekers  rushed  in  upon  Marshall's 
great  find.  He  went  overland  to  Oregon,  with  a  company  composed  prin- 
cipally of  farmers,  and  took  two  years  to  make  the  trip.  In  their  new  home, 
every  man  was  required  to  build  a  house,  or  help  the  community  by  other  hard 
work, — if  in  no  other  way,  than  by  hunting  and  bringing  in  game.  Pickett 
would  neither  build,  hunt,  nor  fish.  His  industry  took  the  form  of  writing 
■'pronunciamentos"  in  an  almost  unbroken  wilderness.  The  "philosophy" 
which  he  submitted  for  the  government  of  the  settlement  was  inscribed  (in 
the  dearth  of  paper)  on  shingles,  which  product  of  honest  toil  he  so  smoothed 
as  to  make  them  take  the  ink,  and  these  he  tacked  to  trees  and  posts  in  the 
most  frequent  places.  His  stay  in  Oregon  was  brief.  He  had  been  in  the 
Rocky  Mountains  in  1842.  In  1846  he  was  on  the  banks  of  the  Klamath 
river,  making  slow  progress  towards  Central  California.  Not  long  after- 
wards he  located  at  Sutter's  Fort,  within  whose  walls  he  engaged  in  trading. 
Here  he  killed  a  man  in  a  quarrel  and,  being  tried  for  the  offense,  was  ac- 
quitted. 

This  historic  structure,  now  rehaljilitated  by  the  munihcence  of  Colonel 
Charles  F.  Crocker,  shows  Pickett's  old  sign  indicating  his  business  as  a 
dealer  in  miners'  supplies,  along  with  those  of  Samuel  Brannan,  Samuel  J. 
Hensley.  Pierson  B.  Reading,  Jacob  R.  Snyder,  and  other  remembered 
pioneers. 

A  few  years  were  passed  here,  and  our  errant  philosopher  took  up  his 
residence  in  San  Francisco.  The  directory  of  that  city  in  1856  had  something 
to  say  of  all  men  in  any  way  notable,  and  this  is  what  it  said  of  Pickett: 
"Boards  at  Rassett  House.  An  early  emigrant  to  Oregon,  and  hastened  to 
California  at  the  commencement  of  the  Mexican  War,  and  was  more  or  less 
a  participator  in  the  stirring  events  of  that  period." 

In  the  metropolis.  Pickett,  who  was  never  married,  called  himself  a  jour- 


History  of  the  Bench  and  Bar  of  California.  369 

nalist  usually,  but  he  was  proud  of  his  pseudonym,  and  when  the  first  registra- 
tion law  took  effect,  by  wdiich  voters  were  required  to  give,  among  other 
things,  their  occupation,  he  himself  enrolled  as  a  "philosopher."  He  was 
never  a  lawyer,  but  usually  he  made  his  headcjuarters  at  the  office  of  some 
lawyer  friend;  for  instance,  in  the  late  sixties  his  office  was  with  Williams  & 
Thornton,  and  in  the  late  seventies,  it  was  with  John  B.  Harmon. 

Such  was  the  man  who  was  the  central  figure  in  the  greatest  contempt 
case  known  to  our  State  courts. 

In  1 8/ 1,  the  Supreme  Court  referred  the  question  of  their  terms  of  office 
to  Joseph  P.  Hoge,  Samuel  M.  Wilson,  and  Samuel  H.  Dwindle;  the  first  two 
named  being  at  the  head  of  the  bar.  and  the  last  being  at  the  time  District 
Judge  of  the  Fifteenth  District.  They  all  held  that  there  was  no  such  thing 
as  a  short  term  so  far  as  an  election  by  the  people  was  concerned ;  that,  wdien 
the  Governor  appointed  a  person  to  fill  a  vacancy  such  person  held  until  the 
next  election,  but  that  whenever  there  was  an  election  by  the  people  the  person 
elected  took  the  office  for  a  full  term. 

Neither  the  profession  nor  the  public  ever  accepted  this  view.  Pickett, 
histead  of  treating  it  as  a  philosopher,  brooded  over  it  as  a  great  wrong.  The 
constitution  said  :  "The  justice  having  the  shortest  term  to  serve  shall  be  the 
chief  justice."  If  all  elected  justices  held  for  full  terms,  it  would  occur  now 
and  then  that  there  w^ould  not  be  any  justice  w'hose  term  was  shortest ;  but 
there  would  be  two  justices  with  terms  equally  "short." 

The  constitution  as  amended  in  1862,  was  substantially  the  same  as  before, 
so  far  as  it  related  to  this  question.  The  custom  in  vogue  prior  to  1862  of 
electing  Supreme  Judges  for  long  and  short  terms,  was  sanctioned  by  the  court 
itself.  There  was  always  one  justice  whose  term  was  shorter  than  that  of  any 
other. 

At  the  judicial  election  of  October,  1873,  when  Hon.  E.  W.  McKinstry 
was  elected  to  the  Supreme  Bench,  as  an  independent,  Hon.  Samuel  B.  McKee 
\\as  the  Democratic  candidate,  and  no  other  than  Hon.  Samuel  H.  Dwindle 
himself  ran  on  the  Repul)lican  ticket  for  the  long  term.  The  Republicans  nom- 
inated for  both  a  long  and  a  short  term.  Judge  Brunson  being  the  short  term 
nominee.  In  accepting  a  place  on  his  party  ticket,  Judge  Dwinelle  tacitly 
revoked  his  part  in  the  written  opinion  of  two  years  before.  This  was  nearly 
a  year  before  Pickett's  transgression. 

Six  years  later  the  second  and  present  constitution  of  the  State  put  the 
question  to  rest  in  these  w^ords :  "If  vacancy  occur  in  the  office  of  a  justice, 
the  Governor  shall  appoint  a  person  to  hold  the  office  until  the  election  and 
qualification  of  a  justice  to  fill  the  \acancy,  which  election  shall  take  place 
at  the  next  succeeding  general  election,  and  the  justice  so  elected  shall  hold 
the  office  for  the  remainder  of  the  unexpired  term." 

When  the  court  referred  the  question,  that  tribunal  was  composed  of  A. 
L.  Rhodes,  Royal  T.  Sprague,  Addison  C.  Nelson,  William  T.  Wallace,  and 


370  History  of  the  Bench  and  Bar  of  California. 

Joseph  B.  Crockett.  The  opinion  of  Messrs.  Hoge,  Wilson  and  Dwinelle 
affected  the  terms  of  Niles.  Repnljhcan.  and  Crockett,  Democrat.  By  all  pre- 
vious rule,  Judee  Niles'  term  would  end  on  January  i,  1876.  He  had  been 
elected  to  succeed  Sanderson,  who  had  resigned  six  years  before  at  the  end  of 
his  term.  Judge  Crockett's  term  would  expire  on  January  i,  1874.  He  had 
first  been  appointed  in  place  of  Shafter,  who  resigned  December  11,  1867,  leav- 
ing six  years  unserved.  Mr.  Crockett  served  until  the  next  election  ( 1869)  when 
he  was  chosen  by  the  people  to  serve  out  the  remainder  of  Shafter's  term. 
But  both  of  these  justices,  under  the  opinion  accepted  by  the  court,  continued 
on  the  bench  until  the  opening  of  the  year  1880. 

Not  to  follow  Pickett  through  all  the  suffering  this  situation  caused  him, 
but  to  hasten  to  the  issue  we  recall  that  he  remarked  to  his  friend,  ex-Chief 
Justice  John  Currey,  in  the  summer  of  1874,  that  he,  Pickett,  intended  to  do 
what  will  be  shown  below.  Judge  Currey  said  to  him,  "If  you  do,  you  will 
get  into  jail  or  a  lunatic  asylum." 

In  the  same  year,  the  legislature  being  in  session,  Pickett  managed  to 
secure  the  reading  of  a  petition  (his  own)  in  the  assembly,  asking  for  the  im- 
peachment of  the  Supreme  Judges.  The  document  was  ruled  out  by  the 
speaker,  j\I.  M.  Estee,  on  ]\Iarch  16,  1874.  (Journal  of  Twentieth  Session, 
page  923).  He  also  secured  the  introduction  into  that  body  of  a  resolution 
instructing  the  judiciary  committee  to  ascertain  and  report  whether  or  not 
Justice  Crockett  was  the  usurper  of  a  seat  on  the  Supreme  Bench.  No  action 
was  had  upon  it. 

We  will  now  give  the  famous  "contempt"  of  Pickett,  as  it  was  observed 
by  a  reporter  of  the  San  Francisco  Bulletin,  on  August  6,  1874.  He  described 
it  under  the  caption  of  "A  Scene  in  the  Supreme  Court,"  as  follows : 

"At  the  opening  of  the  Supreme  Court  of  the  State  of  California,  about  1 1 
o'clock  this  morning,  an  event— unusual  for  tribunals  of  that  high  character — 
transpired,  in  which  one  Charles  E.  Pickett,  well  known  about  the  streets, 
figured  disgracefully.  A  few  minutes  prior  to  the  hour  mentioned  above, 
Pickett  took  his  position  at  the  bar  and  among  the  lawyers,  having  some  time 
previously  announced  his  intention  of  appearing  in  the  Supreme  Court  this 
morning  and  making  a  motion  before  that  learned  body.  The  Justices  of  the 
Supreme  Court  are  in  the  habit  of  entering  the  court-room  at  11  o'clock  a.  m., 
and  on  this  occasion  the  only  rule  observed  is  for  the  court,  before  taking  their 
seats,  to  stand  erect,  the  bar  at  the  same  time  rising  to  their  feet  in  front  of 
the  bench.  The  bailiff  then  announces :  "The  Supreme  Court  of  the  State 
oi  California,"  and  immediately  the  members  of  the  bar  incline  the  head  in  a 
respectful  bow.  The  court  return  the  salute  and  afterward  take  their  seats, 
and  the  members  of  the  bar  follow  the  example.  There  are  two  doors  opening 
into  the  court-room  from  the  law  library,  by  which  the  Justices  enter. 

"When  the  doors  w^ere  opened  this  morning.  Chief  Justice  Wallace  entered 
hrst.  closely  followed  by  Mr.  Justice  Crockett  and  Mr.  Justice  Niles,  by  the 
door  on  the  right,  while  Mr.  Justice  McKinstry  entered  by  the  door  on  the 


History  of  the  Bench  and  Bar  of  California.  371 

left.  While  the  Justices  were  in  the  act  of  arranging  themselves,  previous  to 
being  seated,  and  just  at  the  moment  that  the  bailiff  announced  "the  Supreme 
Court  of  the  Sate  of  California,''  Pickett  suddenly  advanced  from  his  position 
among  the  lawyers,  and,  stepping  quickly  in  front  of  Mr.  Justice  Crockett, 
deliberately  took  the  seat  assigned  to  that  Justice.  Chief  Justice  Wallace  im- 
mediately called  out,  "Where  is  the  bailiff  of  this  court?  Who  is  this  man 
that  intrudes  himself?"  The  bailiff,  failing  to  appear,  the  Chief  Justice  put 
his  hand  on  Pickett,  as  though  to  give  him  an  earnest  hint  to  vacate  the  seat, 
when  the  latter  clenched  the  Judge,  threw  his  left  arm  around  him,  and  showed 
a  determination  to  have  a  fight.  The  greatest  confusion  ensued.  The  situation 
was  novel  beyond  conception,  and  equally  aggravating  to  all  save  the  author 
of  the  mischief.  But  Grant  Taggart,  the  clerk  of  the  court,  and  the  chief, 
sprang  forward  and  seized  Pickett.  The  Chief  Justice  then  ordered  Pickett 
to  be  put  into  the  street,  and  at  the  same  time  said,  "This  man  is  guilty  of  con- 
tempt of  court.  We  fine  him  $500  and  order  him  to  prison  for  five  days  and 
until  the  fine  is  paid."  Pickett  struggled  violently  to  release  himself  from  the 
clerk  and  crier,  but  was  unable  to  secure  the  desired  end.  He  was  promptly 
ejected  from  the  court-room  and  the  door  was  closed." 

As  Pickett  was  being  thrust  through  the  door  into  the  corridor,  he  turned 
and  cried  out,  "I  defy  you,"  and  the  Chief  Justice  said,  "We  fine  you  $500 
more."     The  following  is  the  order  of  the  court  entered  on  the  same  day: 

In  the  Supreme  Court  of  the  State  of  California,  Thursday,  August  6,  1874. 

Court  met  at  eleven  o'clock,  pursuant  to  adjournment.  Present,  Hon.  W. 
T.  Wallace.  C.  J.;  J.  B.  Crockett,  J.;  A.  C.  Niles,  J.;  E.  W.  McKinstry,  J.; 
Grant  I.  Taggart,   Clerk;   Thomas   F.   O'Connor,   Bailifif. 

The  court  having  met  pursuant  to  adjournment,  the  Judges  proceeded  to 
their  respective  seats  upon  the  bench.  Chas.  E.  Pickett,  being  then  present  in 
the  court-room,  suddenly  obtruded  himself  upon  the  bench  and  into  the  chair 
of  Crockett,  J.,  and  announced  that  he  had  as  good  a  right  upon  the  bench  of 
said  Court  as  the  said  Crockett  had ;  and  the  said  Pickett  thereupon  being  com- 
manded by  the  Chief  Justice  to  leave  the  said  chair,  peremptorily  refused  to  do 
so,  and  was  subsequently  removed  therefrom  by  actual  force. 

Whereupon  it  is  now  here  by  the  Court  adjudged  that  the  said  Chas.  E. 
Pickett  is  guilty  of  a  contempt  of  this  Court,  committed  in  its  immediate 
presence,  by  unlawfully  interfering  with  its  proceedings  in  manner  aforesaid, 
and  by  disorderly,  contemptuous  and  insolent  behavior  towards  the  Court  and 
the  Judges  thereof  then  present  as  aforesaid,  (and)  it  is  now  here  ordered  and 
adjudged  by  the  Court,  that  for  such,  his  contempt  aforesaid,  he,  the  said  Chas. 
K.  Pickett,  shall  suffer  imprisonment  by  close  confinement  m  the  common 
jail  of  the  city  and  county  of  San  Francisco  for  the  period  of  five  days,  and 
further,  that  he  pay  a  fine  of  five  hundred  dollars,  and  that  if  the  said  fine  be 
not  paid  at  the  expiration  of  said  five  days'  imprisonment  then  it  is  further 
ordered,  adjudged  and  decreed  that  the  said  Chas.  E.  Pickett  be  imprisoned  and 
kept  in  close  confinement  in  said  common  jail  until  the  said  fine  be  paid,  pro- 
vided that  such  imprisonment  for  the  non-payment  of  the  said  fine  may  extend 
to,  but  shall  not  exceed,  one  day  for  every  two  dollars  of  the  fine  due  from 
him,  the  said  Chas.  E.  Pickett,  and  that  a  warrant  and  writ  of  execution  do 
forthwith  issue,  directed  to  the  sheriflf  of  the  city  and  county  of  San  Francisco, 
commanding  him  to  carry  the  aforesaid  judgment  into  efTect. 


872  History  of  tlie  Bench  and  Bar  of  California. 

And  the  said  Chas.  E.  Pickett  being  still  present,  and  having  been  adjudged 
guilty  of  the  contempt  of  the  Court  aforesaid,  in  manner  and  form  aforesaid, 
and  the  judgment  of  the  Court  in  that  behalf  having  been  then  and  there  an- 
nounced in  open  Court,  he,  the  said  Chas.  E.  Pickett,  then  and  there  insolently 
and  contemptuously  used  and  addressed  to  the  Court  then  and  there  being  in 
open  session,  the  following  language  in  reference  to  the  said  judgment,  to-vvit, 
"I  defy  your  authority," 

Then  followed  a  second  like  sentence  for  five  days'  imprisonment  and  a 
like  fine,  concluding  with  the  words:  "The  imprisonment  for  the  contempt 
last  aforesaid  to  commence  at  the  expiration  of  the  imprisonment  for  the  con- 
tempt adjudged  firstly  aforesaid." 

When  taken  to  the  county  jail,  Pickett  asked  to  be  given  a  "room"  by 
himself.  He  was  told  that  he  must  take  his  chances  like  others.  After  a  while 
he  was  allowed  separate  quarters  and  the  privilege  of  promenading  along  the 
passages  and  sitting  in  the  office.  He  was  in  prison  fourteen  months.  There 
was  much  popular  sympathy  for  him.  Lawyers  found  in  his  case  an  inter- 
esting and  prolific  subject  of  discussion.  He  had  been  in  jail  over  six  months, 
when  ex-Supreme  Judge  Silas  W.  Sanderson  remarked  to  a  former  brother 
justice  of  that  bench,  "They  ought  to  let  him  out ;  the  people  are  becoming 
restive  about  his  case."  Hon.  James  D.  Thornton,  afterwards  a  Supreme 
Judge,  made  intercession  for  him  without  avail.  He  was  finally  released  on 
motion  of  James  A.  Johnson.  Mr.  Johnson,  since  deceased,  was  a  lawyer  of 
advanced  age,  and  a  veteran  Democratic  politician.  Formerly  living  at 
Downieville,  he  represented  his  county  in  the  assembly,  and  was  in  the  lower 
house  of  congress  for  two  terms.  After  removing  to  San  Francisco,  he  was 
elected  Lieutenant  Governor,  serving  from  December,  1875,  to  January,  1880. 
He  owed  his  political  successes  to  his  kind  impulses  and  his  loyalty  to  his 
friends. 

Pickett  often  described  the  "Supreme  Bench  scene"  in  a  very  dramatic 
way.  He  enjoyed  telling  it,  and  it  was  capital  entertainment  for  the  listener. 
He  would  not,  however,  "let  the  matter  drop." 

Pickett  brought  suit  in  the  Twenty-third  District  Court,  San  Francisco 
(James  D.  Thornton.  Judge),  against  Supreme  Judges  Wallace,  Niles,  Crock- 
ett, and  McKinstry,  to  recover  damages  in  the  sum  of  one  hundred  thousand 
dollars,  for  false  imprisonment.  His  complaint  was  demurred  to  as  being 
insufficient,  etc.,  and  Judge  Thornton  sustained  the  demurrer.  Pickett,  de- 
clining to  amend,  appealed. 

A  motion  was  made  to  dismiss  the  appeal,  for  a  failure  to  file  the  tran- 
script within  the  time  prescribed.  Notice  of  this  motion  was  given  on  the 
1 6th  of  May,  1879. 

Pickett  took  plenty  of  more  time,  and  filed  his  transcript  on  the  24th  of 
December  following.  The  defendant  Judges  (except  McKinstry,  who  was 
re-elected)   went  out  of  office  a  few  days  later. 

The  matter  was  heard  in  January.  1880,  before  a  full  court — Chief  Justice 
Morrison,  and  Justices  McKee,  McKinstry,  Myrick,  Ross,  Sharpstein,  and 


History  of  the  Bench  and  Bar  of  California.  373 

Thornton.  These  were  aU  new  men  (except  McKinstry)  elected  under  the 
new  constitution,  and  Judge  Thornton  had  l)een  the  District  Judge  who  sus- 
tained the  demurrer  to  Pickett's  complaint. 

The  court  held  that  the  four  ex-Supreme  Judges  who  were  defendants 
had  heen  "disqualified  to  hear  and  decide  the  cause.  Nor  was  there  a  Su- 
preme Court  competent  for  the  purpose  until  the  fifth  of  January,  1880.  The 
transcript  was  filed  before  there  was  a  court  competent  to  hear  it.  Under 
these  circumstances  we  think  the  rules  of  this  court,  which  would,  if  con- 
strued according"  to  their  terms,  deprive  the  appellant  of  an  opportunity  to  pre- 
sent his  cause  to  a  court  competent  to  hear  and  decide  it,  should  be  suspended." 

Justice  Thornton  w^rote  this  opinion  and  all  the  other  judges  concurred, 
except  Judge  McKinstry,  wdio  was  disqualified. 

The  appeal  came,  on  its  merits,  before  the  court  in  January,  1881.  Wilson 
&  Wilson  appeared  for  defendants.  Judges  McKinstry  and  Crockett;  Delos 
Lake  for  Judges  Wallace  and  Niles ;  and  Pickett  appeared  on  his  own  behalf. 

The  court  was  of  one  mind,  saying :  "We  are  not  aware  of  any  principle 
upon  which  this  action  can  be  maintained.  There  is  no  (luestion  but  that  the 
Supreme  Court  of  this  State  had  jurisdiction  to  adjudge  as  to  contempts, 
and  to  punish  therefor. 

"A  complaint  claiming  damages  and  stating  in  substance  that  the  de- 
fendants, sitting  as  th^  Supreme  Court,  knowing  that  the  plaintiff  had  not 
committed  a  contempt,  and  not  having  acquired  jurisdiction  over  his  person, 
falsely,  wilfully  and  maliciously  adjudged  him  guilty  of  contempt,  and  or- 
dered and  caused  his  imprisonment,  does  not  state  a  cause  of  action." 

In  1883  Pickett  left  San  Francisco  on  a  trip  to  the  Yosemite  Valley.  At 
Mariposa  he  had  to  leave  the  stage  on  account  of  sickness,  and,  going  to 
a  hotel  kept  by  Mrs.  Jane  Gallison,  he  introduced  himself  as  "Philosopher 
Pickett,"  and  was  given  every  attention.  The  good  and  simple  woman  took 
him  for  a  i)hilosopher  indeed,  but  this  consideration  did  not  control  her 
action.  It  was  soon  seen  that  the  malady  (of  the  stomach)  was  mortal,  and 
the  dying  man  gave  his  landlady,  who  nursed  him  herself,  a  letter  to  Judge 
Currcy,  asking  him  to  reimburse  her  for  her  ex])enses,  and  pay  her  charges. 
The  Judge  headed  a  subscription  list  and  called  on  those  whom  he  knew  were 
as  intimate  as  he  had  been  with  Pickett,  some  of  whom  refused  to  contribute. 
With  the  hel])  of  Hon.  W.  W.  Montague,  C(^l()ncl  1  lolhsler,  and  others,  a 
sum  much  larger  than  the  entire  bill,  including  the  burial  charges,  was  raised 
and  remitted.  This  was  after  Pickett's  death,  wdiich  came  to  him  a  week  or 
so  after  he  left  the  stage-coach.  His  "ministering  angel"  attended  jiersonally 
to  every  detail  of  the  last  (hilies.  la}-ing  him  in  the  public  cemetery  at  Mariposa. 

Our  ])hilosopher  did  not  subscribe  to  the  inspired  insurance  that  man.  is  "a 
little  lower  than  the  angels,  and  crowned  with  glory  and  honor."  He  rather 
cherished  the  sentiment  of  Byron's  lines  over  a  dead  dog  in  Newstead  Abbey — 
quite  complimentarv  to  canine  and  contemptuous  of  human  kind.  "A  dead 
doe!"     It  was  thus  we  heard  an  old  bar  leader  refer  to  the  lines,  as  being 


374  History  of  the  Bench  and  Bar  of  California. 

most  convenient.  They  are  more  elegantly  entitled  in  the  book,  "Inscription 
on  the  Monument  of  a  Newfoundland  Dog."  Pickett  never  said  anything  so 
misanthropic  as  these  lines,  but  he  requested  his  landlady  to  see  that  they 
were  read  at  his  burial.  She  complied.  As  there  was  no  one  else  to  do  it, 
she  performed  the  office  herself.  The  scene  is  pathetic  to  old  acquaintances  in 
the  great  city :  the  faithful  woman,  herself  a  stranger  to  the  dead,  staying  the 
falling  earth  to  read  the  strange  words  over  the  strange  man!  Perhaps  he 
might  have  desired  us  to  repeat  them  here : 

When  some  proud  son  of  man  returns  to  earth. 

Unknown  to  glory,  but  upheld  by  birth. 

TTie  sculptor's  art  exhausts  the  pomp  of  woe, 

And  storied  urns  record  who  rest  below ; 

When  all  is  done,  upon  the  tomb  is  seen, 

Not  what  he  was,  but  what  he  should  have  been. 

But  the  poor  dog,  in  life  the  firmest  friend. 

The  first  to  welcome,  foremost  to  defend. 

Whose  honest  heart  is  still  his  master's  own. 

Who  labors,  fights,  lives,  breathes  for  him  alone, 

Unhonor'd  falls,  unnoticed  all  his  worth. 

Denied  in  heaven  the  soul  he  held  on  earth; 

While  man,  vain  insect,  hopes  to  be  forgiven, 

And  claims  himself  a  sole,  exclusive  heaven. 

Oh  man,  thou  feeble  tenant  of  an  hour. 

Debased  by  slavery  or  corrupt  by  power, 

Who  knows  thee  well  must  quit  thee  with  disgust, 

Degraded  mass  of  animated  dust! 

Thy  love  is  lust,  thy  friendship  all  a  cheat. 

Thy  smiles  hypocrisy,  thy  words  deceit ! 

By  nature  vile,  ennobled  but  by  name, 

Each  kindred  brute  might  bid  thee  blush  for  shame. 

Ye !  who  perchance  behold  this  simple  urn, 

Pass  on, — it  honors  none  you  wish  to  mourn  : 

To  mark  a  friend's  remains  these  stones  arise ; 

I  never  knew  but  one — and  here  he  lies. 

Such  was  his  sepulture,  and  such  the  philosophy  with  which  he  turned 
from  his  problems  (who  shall  call  them  petty)  and  faced  the  Unknown — to 
find,  perhaps  the  clouds  that  had  settled  on  his  intellect,  all  rolled  away ;  cer- 
tainly so,  (to  quote  a  great  lawyer  and  fine  poet). 

"       ....       if  there  be  a  sphere 

Where  all  is  made  plain  which  so  puzzles  us  here."* 

THE  EDITOR. 


*Wm.  Allen  Butler,  of  New  York,  in  "Nothing  to  Wear." 


REMINISCENCES 
OF  OUR  JUDGES 
AND  LAWYERS 


<&  efe  &  1^9  <^9  &  life  a?9  &  * 


HISTORY  of  the 
BENCH  ^nd  BAR 
of  CALIFORNIA 


c^e^rf^t^^^t^^e^ejr, 


REMINISCENCES  of  JUDGES  and 
LAWYERS 


JUDGE  McKINSTRY. 

As  a  7//^^/  prius  judge,  Hon.  E.  W.  McKinstry  dispatched  business  with 
promptness.     The  late  Mr.  A.  P.  Crittenden  told  the  writer  the  following ; 

In  1855  I  had  occasion  to  visit  Santa  Rosa  to  try  a  case.  It  was  the  first 
day  of  the  term  of  the  District  Court.  The  hour  for  the  meeting  of  the  court 
was  10  a.  m.,  and  a  large  number  of  lawyers  and  of  parties  interested  were 
assembled,  wdien,  about  11  o'clock,  the  Judge  (McKinstry)  arrived  from  the 
adjoining  county  on  horseback.  Dismounting  at  the  court  house  door,  his 
honor  mounted  the  bench  and  proceeded  to  examine  the  trial  list  which  was 
placed  before  him.  At  that  time  the  Code  provided  that  in  case  of  the  sus- 
taining or  overruling  of  a  demurrer  to  the  complaint,  costs  to  the  amount  of 
$20  could  be  imposed  as  a  condition  to  the  amending  of  the  complaint  or  filing 
and  answer,  as  the  case  might  be.  .Vfter  reading  the  list  of  cases,  the  Judge 
remarked,  "I  perceive  here  some  twenty-five  actions  of  ejectment.  The  com- 
plaints scan  to  be  in  the  ordinary  form  and  to  be  sufficient.  Counsel  for  de- 
fendants in  each  of  these  actions  will  have  an  opportunity  t(^  withdraw  the 
demurrer  within  five  minutes  by  the  clock  upon  the  opposite  wall,  and  to  answer 
forthwith.  In  case  a  demurrer  is  insisted  on  and  it  shall  be  sustained,  I  shall 
deem  it  my  duty  to  require  $20  to  he  paid  by  i)laintiff  as  a  condition  to  his 
amenrling,  and  in  case  it  is  overruled  the  defendant  must  pay  $20  as  a  condition 
to  In's  answering." 

To  appreciate  what  followed,  it  must  be  understood  that  the  terms  in  Sono- 
ma county  were  very  short,  and  if  a  demurrer  to  the  complaint  were  overruled, 
and  the  usual  ten  days  given  to  answer  without  cost,  this  operated  a  continu- 
ance of  the  cause  and  a  delay  of  at  least  three  months,  and  initil  the  next  term. 
Well,  the  five  minutes  began  to  run;  after  a  lapse  of  about  four  of  the  five 
nn'nutes,  a  weak  voice  in  the  rear  of  the  court-room  exclaimed,  'May  it  please 
your  honor,  I  withdraw  the  demurrer  in  Smith  vs.  Brown.'    'And  I  withdraw 


378  History  of  the  Bench  and  Bar  of  California. 

it  in  Williams  vs.  Johns.'  'And  I  in  Hopper  vs.  Hopkins,'  etc.,  etc.  And  thus 
in  five  minutes  all  the  demurrers  were  disposed  of." 

Some  curious  things  happened  in  those  days.  Jasper  O'Farrell  owned  a 
•  rancho  in  Bodega,  Sonoma  county.  A  large  number  of  persons  were  engaged 
in  cutting  his  valuable  redwood  and  pine  trees,  when  an  injunction  was  issued 
by  the  District  Court  to  prohibit  this  wholesale  destruction.  Several  hundred 
men  calling  themselves  "squatters"  (although  comparatively  few  were  actual 
settlers),  met  in  mass  meeting,  and  declared  by  resolution  that  land,  like  air 
and  water,  was  the  common  heritage  of  freemen ;  that  no  court  dare  attempt 
to  enforce  this  outrageous  injunction,  and  organized  to  resist.  It  looked  as  if 
there  might  be  trouble,  when  it  happened  the  president  of  the  mass  meeting 
was  arrested  for  horse  stealing.  Now,  this  crime  was  apparently  held  in  more 
detestation  by  the  western  settlers  than  manslaughter,  since  that  species  of 
property  could  not  be  constantly  watched,  as  the  herds  wandered  over  large 
tracts  of  land ;  and  residents  of  the  early  days  will  remember  that  even  the 
statute  at  one  time  provided  that  at  the  option  of  the  jury  a  horse  thief  might 
be  hanged,  and  they  ivere,  sometimes.  The  aroused  indignation  of  those  who 
attended  the  meeting  mentioned  was  directed  against  their  president;  he  left 
the  country,  the  organization  was  dissolved,  and  the  injunction  became  oper- 
ative. 

The  Fitch  Rancho,  in  the  upper  part  of  Sonoma  county,  had  been  confirmed 
by  the  appropriate  tribunals  and  a  final  survey  of  the  tract  made  under  direc- 
tion of  the  United  States  surveyor  general.  Mr.  Bailhache,  one  of  the  owners 
of  the  rancho,  had  brought  many  actions  of  ejectment  against  various  persons 
who  had  intruded  upon  different  parts  of  the  rancho,  had  recovered  judgments 
in  such  actions,  and  executions  had  been  issued  on  the  judgments.  A  great 
organization  was  formed  of  those  who  intended  to  resist  the  law,  and  as  the 
organization  was  said  to  include  hundreds  of  voters,  it  was  feared  that  the 
local  officers  could  not  be  depended  upon  to  carry  out  the  orders  of  the  court. 
A  bold  deputy  sheriff  from  Petaluma  (the  other  end  of  the  county),  however, 
proceeded  to  make  an  effort  to  dispossess  the  defendants  of  the  premises  they 
occupied.  Afterward  a  company  of  militia  was  sent  to  aid  in  the  work.  On 
arriving  at  the  first  house  occupied  by  the  defendant,  the  posse  found  the  front 
yard  filled  with  armed  men,  uttering  threats,  etc.  Getting  further  assistance, 
the  deputy  turned  the  defendants  out  of  the  houses  and  put  the  tenants  of 
Bailhache  in  possession.  That  night  these  tenants  were  in  turn  ejected  by  a 
crowd  of  black  men,  and  the  original  occupants  placed  in  possession.  The 
persons  who  were  charged  with  the  last  outrage  were  arrested  for  contempt 
and  brought  before  Judge  McKinstry  at  Santa  Rosa.  Being  examined  a 
witness  would  declare  that  no  violence  was  attempted  or  threatened  at  the 
house  in  the  yard  whereof  the  armed  men  were  assembled. 

The  Judge — "How  do  you  know  there  was  no  violence?" 

Witness — "1  was  there." 


History  of  tJie  Bench  and  Bar  of  California.  379 

Judge — "Were  you  in  the  yard?" 

IVitn  ess — '  *  Yes. " 

Judge — ''Had  a  gun?" 

Witness — "Yes." 

Judge — "Mr.  Clerk,  enter  an  order  for  the  arrest  of  this  man  as  for  con- 
tempt of  court." 

This  was  done  in  several  instances.  Again,  a  defendant  would  swear, 
"A  gang  of  niggers  came  and  forced  me  to  go  back  to  the  house  from  which 
I  had  been  removed." 

Judge — "Are  you  sure  they  were  negroes?" 

Defoidant — "They  looked  like  it." 

As  a  result  of  the  investigation  a  large  number  of  citizens  were  sentenced 
to  five  days'  imprisonment  for  contempt.  They  tore  up  the  inside  of  the  jail, 
but  did  not  succeed  in  breaking  down  the  outer  door,  and  they  stayed  there 
for  the  full  period  of  their  sentence.  There  was  no  subsequent  trouble  in  the 
execution  of  judgments  in  ejectment. 

The  Seventh  District  included  Sonoma,  Napa,  Solano,  Mendocino  counties 
and  at  one  time  Contra  Costa  or  Lake. 

Early  in  the  fifties  the  people  of  Sonoma  county  under  a  special  statute, 
voted  to  remove  the  county  seat  from  the  town  of  Sonoma  to  Santa  Rosa. 
Some  irregularities  occurred  in  the  proceeding  and  citizens  of  Sonoma  applied 
for  a  writ  to  compel  a  return  of  the  county  records  to  that  place.  The  question 
had  been  argued  at  Napa  and  the  judge  had  prepared  a  written  opinion  in 
favor  of  Santa  Rosa.  He  was  driven  from  Napa  to  Santa  Rosa  by  a  Mt. 
Nichols,  arriving  at  the  latter  place  in  the  evening  of  a  very  wet  day.  The 
"hotel"  was  a  wooden  building  of  two  stories,  the  upper  being  an  unfinished 
garret.  The  Judge  and  his  friend  were  given  a  supper  of  cold  meat  and  stale 
bread,  and  were  shown  to  a  "room"  separated  from  the  main  "corral"  by  a 
cloth  partition  about  eight  feet  high.  They  had  noticed  that  the  landlord  was 
curious  and  anxious  to  learn  the  judgment  to  come  in  the  law  suit,  and  sus- 
pected he  was  ensconced  near  by  where  he  could  hear  their  conversation.  "Oh 
dear,"  said  Nichols,  as  he  examined  the  bed  clothes.  "I  wonder  if  they  will 
give  us  hot  meat  for  breakfast."  "Or  milk  in  our  cofifee,"  added  the  Judge. 
"Isn't  it  terrible,"  said  one.  "Terrible,"  echoed  the  other,  etc.,  etc.  The  Judge 
learned  afterwards  that  on  the  same  night  the  landlord  had  rushed  about  to 
the  few  inhabitants  of  the  village,  exclaiming:  "I  have  heard  enough;  wc  are 
gone;  that  Judge  is  going  to  decide  against  us;  we  may  as  well  pack  up  and 
go."  The  next  morning  the  few  inhabitants  aforesaid  assembled  in  the  little 
courtroom,  wearing  a  morose  and  gloomy  expression.  The  expression  changed 
however,  as  the  opinion  was  read,  to  a  look  of  smiling  content,  and  one  of 
triumph  when  the  judgment  was  reached  in  favor  of  their  town,  and  they 
learned  that  the  landlord  was  mistaken  in  his  anticipation  of  the  result. 

On  the  night  referred  to  Colonel  Hooker  (afterwards  known  as  "Fighting 


380  History  of  the  Bench  and  Bar  of  California. 

Joe")  occupied  a  cot  in  the  outer  or  main  part  of  the  garret  or  "corral."  When 
he  retired,  the  Colonel  threw  his  braces,  to  which  his  trousers  were  fastened, 
over  the  bed  post  near  his  head,  and  stuck  a  candle  on  the  flat  top  of  the  bed 
post.  After  reading  awhile,  he  l^lew  out  his  candle  and  fell  asleep.  Now 
the  Colonel's  trousers  were  uailt  of  some  material  which  was  ribbed,  the  raised 
portions  being  filled  in  with  cotton  batting.  In  the  night  all  were  alarmed 
by  a  strong  smell  as  of  burning  cloth.  Light  was  brought.  The  Colonel 
sat  up  upon  the  side  of  his  bed,  seized  upon  his  pantaloons,  and  gave  them  a 
preliminary  shake.  Imagine  his  sensation,  when  all  of  the  trousers  disappeared 
in  light  ashes,  leaving  attached  to  his  suspenders  only  the  buttons  by  which 
they  had  been  fastened  to  the  garment  destroyed.  In  some  way  the  burning 
snuff  of  the  candle  had  communicated  to  the  cotton  filling  and  run  along 
each  rib  until  the  whole  was  consumed,  yet  leaving  the  general  shape  of  the 
trousers  unbroken  until  the  Colonel's  shake  blew  them  to  pieces. 

In  conversing  with  Judge  McKinstry,  the  writer  found  him  an  admirable 
raconteur.  He  told  amusing  stories  in  which  many  of  the  distinguished 
lawyers  of  a  former  day  were  actors.  Thompson  Campbell,  Governor  Foote, 
Balie  Peyton,  Colonels  Irving  and  Hoge,  Senator  McDougall  and  others, 
statesmen  and  lawyers,  whom  he  knew  well,  and  all  were  remembered  in  his 
anecdotes.  He  spoke  of  meeting  Ned  McGowan  at  Tucson  in  i860,  just  after 
McGowan  had  been  selected  chief  justice  of  the  "provisional  government"  of 
Arizona;  the  last  time  McKinstry  had  seen  McGowan  he  had  tried  him  on 
a  charge  of  being  accessory  to  a  murder — a  murder,  however,  with  which  he 
had  had  no  connection.  And  he  mentioned  seeing  Phil.  Herbert,  an  ex- 
member  of  congress,  in  Mexico,  and  of  the  strange  life  on  the  Texas  frontier. 
He  said  that  the  politest  men  he  ever  saw  were  gathered  on  the  banks  of  the 
Rio  Grande.  "Colonel,  permit  me."  said  a  gentleman  on  one  side  of  a  cockpit, 
holding  up  three  fingers  (which  meant  three  ounces).  "Certainly,  Judge,  with 
pleasure,"  responded  the  gentleman  on  the  other  side  of  the  pit,  making  a  like 
digital  sign.  And  the  bet  was  made.  Nobody  could  be  charged  with  carrying 
concealed  weapons.  "They  would  let  me  drink  nothing  but  champagne  while 
I  was  with  them,"  said  the  Judge,  "and  nobody  was  shot  while  I  was  there." 

JUDGE  BURBANK. 

"I  am  old  enough  for  a  contest  with  the  oldest  man,  and  with  the  youngest 
lady."  This,  he  told  us,  he  said  to  a  lady  who  had  asked  how  old  he  was. 
We  had  asked  him  the  same  question  which  made  him  tell  us  this.  He  did 
not  inform  either  of  us,  however,  how  old  he  was. 

The  Judge  once  came  into  our  notarial  office  in  San  Francisco,  with  a 
lady  client,  who  desired  to  acknowledge  a  deed.  It  must  be  borne  in  mind  that 
a  notary  was  at  that  day  required  to  examine  a  married  woman  "separate  and 
apart  from  her  husband" — he  must  therefore  inquire  whether  lady  callers 
were  married  or  single. 


History  of  the  Bench  and  Bar  of  California.  381 

"Are  you  a  married  lady?''  we  inquired. 

Before  the  lady  could  speak,  Judge  Burbank  spoke  for  her :  ''No,  she  is 
not  married,  but  she  expects  to  be." 

A  deep,  rich,  and  beautiful  blush  suffused  the  lady's  features. 

We  quickly  wrote  and  attached  our  certificate  of  acknowledgment,  with 
impression  of  seal. 

"Is  your  certificate  all  correct,  do  you  think?"  inquired  the  Judge. 

"It  is,  Judge,"  we  replied. 

He  then  withdrew  with  his  fair  client,  the  latter  still  blushing,  as  if  won- 
dering what  the  "certificate"  contained  respecting  her. 

Judge  Burbank  told  us  on  the  street  once  that  he  had  been  "sick  four 
years."  We  learned  that  he  had  been  adjudged  insane,  and  had  been  com- 
mitted to  the  Stockton  asylum.  "Is  he  now  in  the  lunatic  asylum,  or  out  on 
bail  ?"  a  wag  afterwards  inquired  of  us  concerning  the  Judge. 

John  Burbank,  brother  of  Caleb,  had  made  "lots  of  money"  in  Henderson 
county,  Kentucky.  Right  after  the  Civil  War,  Breckinridge  (John  C.)  hav- 
ing made  his  flight  to  Paris,  France,  John  Burbank  met  him  there,  and  said : 
"You  look,  John,  more  like  an  American  Indian  than  a  Kentucky  gentleman." 
Burbank  gave  Breckinridge  $5000  to  send  by  telegraph  to  his  family  in  Ken- 
tucky, and  took  him  traveling  in  the  far  East.  They  went  in  swimming 
in  the  River  Jordan,  and  Burbank  said  to  J.  C.  B.  :  "John,  you  are  recon- 
structed now.  you've  washed  in  the  River  Jordan,  and  all  your  sins  are  for- 
given." 

John  Burbank,  like  Judge  Caleb,  was  born  and  reared  in  ]\Iaine,  and  had 
no  sympathy  with  the  rebellion,  as  a  political  fact,  but  liked  Southern  people 
very  much. 

A  well-known  San  Francisco  contractor  told  the  foregoing  to  C.  G.  How- 
ard in  the  latter's  law  office,  in  our  hearing,  on  May  10,  1888.  He  said  that 
Caleb  Burbank  told  it  to  him. 

In  a  case  which  Caleb  Burbank  once  had  for  the  same  contractor  who  told 
the  last  story  (the  defendant  being  T.  Rodgers  Johnson,  widely  known  in  the 
Odd  Fellows'  order.)  he  took  occasion  in  his  address  to  the  jury,  to  pay  a 
high  compliment  to  the  luisiness  integrity  of  his  own  client,  the  plaintiff. 
The  plaintiff  recovered  judgment,  and  after  the  adjournment  of  the  court,  P)ur- 
bank  said  to  his  client,  "Now,  don't  you  be  elated  over  what  I  said  about  you 
in  my  argument.     That  was  necessary  to  my  case." 

John  Burbank  has  been  dead  many  years.  Caleb  rjurl)ank  died  at  Stock- 
ton in  the  Asylum  for  the  Insane,  May  5,  1888,  aged  eighty-two  years. 

OUR  FIRST  PROBATE  CASE. 

Tlie  probate  records  of  San  Francisco  extend  back  to  June  i,  1848,  almost 
to  the  birth  of  the  Judge  who  has  been  longest  on  that  bench.  The  first 
alcalde,  John  Townsend,  after  whom  Townsend  street  was  named,  was  the 


282  History  of  the  Bench  and  Bar  of  California. 

highest  judicial  officer  in  the  district.  He  was  addressed  as  such  by  R.  B. 
Mason,  Colonel  First  Dragoons,  U.  S.  A.,  then  Military  Governor  of  Cali- 
fornia, and  directed  to  administer  upon  the  estate  of  W.  A.  Leidesdorfif,  then 
lately  deceased,  leaving  a  large  amount  of  real  and  personal  property. 

Governor  Mason  instructed  Mr.  Townsend  that  he  should  "take  the  neces- 
sary steps  to  put  the  estate  into  the  hands  of  competent  and  safe  men,  who 
should  be  required  to  give  bond  and  good  security  in  at  least  double  its  esti- 
mated value,  conditioned  for  the  proper  management,  accountability  and  set- 
tlement of  the  same  according  to  such  laws  as  are  now  or  may  be  created 
touching  such  matters."  In  pursuance  of  this  authorization,  Mr.  Townsend 
took  charge  of  the  estate,  and  issued  letters  of  administration  to  W.  D.  M. 
Howard.  During  the  years  1848,  1849,  ^^^  P^^^  o^  185O)  the  first  alcalde, 
or  the  alcalde  of  the  first  district,  exercised  the  functions  of  a  Judge  of  Pro- 
bate. Alcaldes  Townsend,  Leavenworth  and  Geary  so  acted  during  the  periods 
named. 

On  April  22d,  1850,  the  legislature  passed  an  Act,  in  compliance  with 
the  State  Constitution,  Section  8,  Article  7,  entitled,  "An  Act  to  regulate  the 
settlement  of  the  estates  of  deceased  persons" ;  and  Hon.  Roderick  N.  Mor- 
rison, the  first  County  Judge,  was  ex-ofHcio  Judge  of  this  court,  and  from 
which  time  the  Probate  Court,  which  passed  out  of  existence  at  the  beginning 
of  the  year  1880,  may  be  said  to  date. 

BALIE  PEYTON. 

Balie  Peyton  was  one  of  the  earliest  and  greatest  men  at  the  San  Francisco 
bar.  As  we  once  had  occasion  to  say  of  him,  "he  was  a  man  of  impassioned 
eloquence,  of  kind  nature,  the  friend  and  champion  of  the  squatters  of  Solano 
and  Contra  Costa."  He  had  represented  his  native  state,  Tennessee,  in  Con- 
gress before  coming  to  California.  He,  like  Baker,  was  an  enthusiastic  Whig, 
and  like  Baker,  he  believed  that  S.  S.  Prentiss  was  the  greatest  of  orators. 
Jn  San  Francisco,  when  the  Whig  party  passed  out,  he  became  a  Know-Noth- 
ing.  In  the  middle  fifties,  he  was  in  partership  at  the  bar  with  William  Duer, 
Delos  Lake  and  Julius  K.  Rose  (Peyton,  Lake,  Duer  &  Rose).  Peyton  was 
an  influential  member  of  the  great  vigilance  committee  of  1856;  he  exhibited 
"The  Thieves'  Ballot-box"  at  a  public  meeting  in  San  Francisco,  while  the 
committee  was  holding  sway,  on  June  i6th.  On  June  i8th,  1858,  Peyton  met 
that  other  bar  leader,  Gregory  Yale,  back  of  Oakland,  to  fight  a  duel.  A  letter 
from  Francis  J.  Lippitt,  who  had  caused  the  trouble,  was  received  on  the 
ground  and  restored  peace. 

Peyton  went  back  to  Tennessee  in  1859,  leaving  behind  him  only  pleas- 
ant memories.  It  is  related  of  him  that  at  a  Whig  mass  meeting  at  Nash- 
ville in  1844,  he  was  on  the  platform  when  Prentiss  made  one  of  his  best 
speeches.     Peyton  believed  that  this  speech  had  never  been  surpassed  for  elo- 


History  of  the  Bench  and  Bar  of  California.  283 

quence  and  power.  Prentiss  fainted  just  as  he  closed,  and  Peyton,  bending- 
over  the  great  man's  unconscious  figure,  exclaimed  :  "Don't  come  to,  Pren- 
tiss.    Now  is  your  time  to  die;  this  is  the  culmination  of  3^our  fame." 

JOHN  T.   HUMPHREYS. 

John  T.  Humphreys  was  a  native  of  Virginia.  He  was  born  on  !>ilarch 
30.  1830,  and  was  admitted  to  the  bar  in  that  State  in  1851.  He  came  to 
California  and  settled  at  San  Francisco  in  1875.  He  was  assistant  city  and 
county  attorney  there  for  two  terms,  1887-90,  under  George  Flournoy,  Jr. 
He  was  accidentally  run  over  and  killed  in  San  Francisco  in  1898.  He 
declared  to  us  not  long  prior  to  that  sad  event  that  he  was  admitted  to  the 
bar  long  before  his  education  was  complete — that  he  was  yet  "daily  learning 
new  and  strange  things  from  the  decisions  of  the  Supreme  Court."  This 
calls  to  mind  the  observation  of  the  venerable  Al.  C.  Blake,  who  w^as  on  the 
bench  of  several  courts  in  San  Francisco  in  the  sixties  and  seventies.  He 
rarely  if  ever  indulged  in  humor,  and  may  be  he  was  not  indulging  in  it  now. 
"Xo  man,"  he  said  from  the  bench  one  day,  "knows  what  the  law  is,  except 
the  Supreme  Court." 

JUDGE  LAKE  AND  FRANK  PIXLEY. 

The  case  of  Derbec  vs.  The  City  and  County  of  San  Francisco  was  an 
action  to  recover  damages  for  the  destruction  of  the  type,  etc.,  of  the  French 
newspaper.  Echo  du  Pacifique,  by  a  mob,  when  the  news  came  of  the  assas- 
sination of  President  Lincoln,  on  April  15,  1865.  The  trial  was  not  reached 
for  a  long  time,  when  it  took  place  in  the  old  Fourth  District  Court,  before 
Judge  E.  D.  Sawyer  and  a  jury.  Frank  M.  Pixley  was  attorney  for  the 
plaintiff,  and  Delos  Lake  represented  the  city.  The  plaintiff  fixed  his  dam- 
ages at  $50,000;  the  jury  allowed  him  $7500.  The  opposing  counsel  were 
strong  men,  and  notoriously  combative,  and  the  trial  was  anything  but  tame. 
Among  other  interesting  displays  was  the  following: 

Mr.  Pixley  made  an  opening  summing  up  for  the  plaintiff,  and  drew  a 
picture  of  M.  Derbec,  working  for  years  in  an  honorable  calling  and  estab- 
lishing a  lucrative  business,  and  a  mob  destroying  the  work  of  thirteen  labor- 
ious years.  He  touched  upon  the  ruling  of  the  Judge  as  limiting  their  claim, 
without,  however,  attacking  the  decision  of  the  court.  He  went  through 
the  figures,  as  sworn  and  admitted,  and  after  allowing  123^2  cents  a  pound,  as 
the  value  of  the  lead  when  pied  on  the  floor,  made  out  a  total  of  $17,950 
proved  damages  within  the  ruling  of  the  court,  and  asked  them  to  give  that 
sum. 

Judge  Lake  rose  to  close  for  the  defense,  and  spoke  of  the  claim  for  fabu- 
lous damages,  which  it  had  been  sought  to  engineer  through  the  court,  and 
drew  a  picture  of  M.  Derbec,  if  the  court  allowed  the  claim,  or  the  jury 


384  History  of  the  Bench  and  Bar  of  California. 

accepted  the  proof,  going'  to  that  city  of  riotous  luxury,  Paris,  to  spend  the 
remainder  of  his  days  in  affluence  on  the  fruits  of  the  verdict,  taking  in  his 
train  the  counsel  ( IMxley),  who  for  his  share  in  procuring  such  verdict,  would 
he  entitled  to — 

Mr.  Pixley — I  appeal  to  the  court.     Is  this  wit  or  insolence? 

Judge  Lake  (to  Pixley) — Which  you  like,  sir.  (To  the  bench)  That  is 
for  counsel  to  decide,  not  the  court. 

The  Court — I  think  the  counsel  for  the  defense  (Lake)  is  traveling  out  of 
the  ordinary  course. 

Judge  Lake — I  am  only  following  in  the  steps  of  the  counsel  for  the 
plaintiff  (Pixley),  who  ignored  the  evidence  and  complained  of  the  rulings 
of  the  court. 

The  court  said  this  was  a  matter  personal  to  the  court  itself,  and  the  court 
did  not  think  it  necessary  to  interfere  with  Mr.  Pixley,  and  did  not  need  any 
protection  from  others.  A  certain  latitude  is  allowed  counsel,  but  there  is  no 
propriety  in  these  personalities. 

Judge  Lake — T  think  the  counsel  (Pixley)  is  unnecessarily  sensitive;  there 
is  nothing  in  saying — 

Mr.  Pixley — The  counsel  is  continuing  his  objectionable  personalities. 

The  Court  (peremptorily) — Gentlemen,  drop  the  discussion. 

Judge  Lake — Why  does  the  counsel  appeal  to  the  court  for  protection? 
^\^^y  does  he  not  direct  himself  to  me  if  he  wishes  to  take  the  matter  up? 
He  is  not  a  schoolboy. 

Mr.  Pixley  (fiercely) — He  is  neither  a  schoolboy  nor  a  blackguard. 

Judge  Lake  (with  dignity) — That  reply  I  cannot  notice  here. 

The  Court — Gentlemen,  this  matter  must  stop  here — I  insist  upon  it.  I 
will  have  no  more  of  this  unseemly  altercation. 

It  may  be  proper  to  add  that  both  of  the  belligerents  lived  many  years 
after  this — strange  as  it  may  seem. 

D.  W^   PERLEY. 

Among  many  incidents,  ludicrous,  pathetic,  and  serio-comic,  which 
occurred  in  the  strange  life  of  the  late  erratic  lawyer,  D.  W.  Perley,  is  one 
which  was  witnessed  by  only  two  persons  besides  himself,  and  which  never 
was  embalmed  in  print.  It  is  given,  as  it  has  fallen  on  more  than  one  occa- 
sion, from  the  lips  of  the  late  Lloyd  Tevis.  the  Midas  of  our  vState,  whose  rep- 
utation among  his  brother  financiers  for  business  diplomacy,  w^as  as  great  as 
his  general  renown  for  multiplying  dollars.  "I  think  I  know  Perley,"  said 
Tevis,  on  one  occasion  when  Perley's  character  for  courage  was  in  dispute; 
"I  think  I  have  a  proper  estimate  of  him.  He  will  fight;  there  is  no  doubt 
about  it.  T  have  seen  him  tried  on  more  occasions  than  one.  He  prefers 
peace;  never  seeks  a  quarrel,  and  when  he  gets  into  trouble  his  very  first 


History  of  the  Bench  and  Bar  of  California.  385 

impulse  is  to  show  the  white  feather.  But  his  pride  of  character  soon  asserts 
itself,  and  he  is  ready,  even  anxious  to  take  the  offensive.  I  never  shall 
forget  a  scene  which  occurred  in  F'erley's  room  once  (this  was  aljout  1867), 
in  the  Russ  House,  in  San  Francisco.  It  aptly  illustrates  what  I  have  said 
of  Perley's  character  as  a  belligerent.  There  was  a  dispute  between  Perley 
and  Harry  Logan,  and  I  was  present  as  mediator." 

We  will  interrupt  Mr.  Tevis  right  here  a  moment  to  say  that  Mr.  Perley 
looked  upon  him  as  the  very  prince  of  moneyed  men,  and  that  this  Harry 
Logan  is  the  gentleman  who  w^as  shot,  nearly  fatally  by  Guerrero,  a  rich 
young  native  Californian,  and  against  whom  Logan  recovered  heavy  dam- 
ages. 

Now,  to  let  Mr.  Tevis  resume:  "During  the  negotiations  between  Perley 
and  Logan  for  a  settlement  of  their  business  differences,  I  was  the  only  person 
in  the  room  besides  the  parties  interested.  We  were  seated  at  a  table,  Perley 
on  the  side  where  the  drawer  opened.  Logan  was  his  vis-a-vis,  and  I  sat  at 
one  end.  It  was  difficult  to  agree  on  terms,  and  in  the  heat  of  the  dispute, 
Logan,  hot-blooded  and  impetuous,  called  Perley  a  liar.  Perley  sat  wnth 
bloodless  face  and  quivering  limbs  as  though  praying  that  the  floor  would 
open  to  let  him  through ;  but  the  painful  scene  changed  in  an  instant.  Quickly 
pulling  open  the  drawer  of  the  table  and  catching  up  a  brace  of  revolvers, 
he  thrust  them  in  the  face  of  his  astonished  adversary,  and,  with  terrible 
emphasis,  bade  him  take  his  choice.  'Take  your  choice,  take  your  choice,'  he 
said,  as  he  leaped  from  his  chair,  his  face  more  crimson  with  rage  and  his 
eyes  flashing  fury;  'we'll  settle  this  matter  instantly.'  It  was  now  Logan's 
turn  to  back  down,  which  he  did  wath  as  much  grace  as  could  be  expected 
'under  the  circumstances.'  Logan  is  a  brave  man,  but  he  had  been  too  hasty, 
and  in  surrendering,  he  did  so  with  dignity,  acknowledging  his  error." 


BOOKER,  CREANOR  AND  BEN.  MOORE. 


Mr.  F.  H.  Ayers,  of  Modesto,  wdio  is  not  a  lawyer,  sends  us  some  pleas- 
ant recollections  of  Samuel  A.  Booker  of  Stockton,  Judge  Creanor  and  Ben. 
Moore. 

"My  first  recollection  of  Judge  Booker,"  writes  Mr.  Ayres,  "was  in  Stock- 
ton in  1851.  He  was  the  attorney  for  a  man  named  Martin,  wdio  was  the 
plaintiff  in  a  case  in  the  District  Court,  suing  for  a  copartnership  account- 
ing in  a  band  of  cattle.  The  defendant's  attorney,  D.  W.  Perley,  tried  to 
impeach  the  testimony  of  a  witness  in  an  affidavit.  Because  the  witness  had 
once  been  living  in  the  Hawaiian  Islands  and  taken  the  oath  of  allegiance  to 
that  government,  which  Perley  denominated  'a  pusillanimous  monarchy,'  the 
lawyer  made  the  point  that  he  was  not  worthy  of  belief.      Thinking  perhaps 


38  6  History  of  the  Bench  and  Bar  of  California. 

Mr.  Booker,  (who  had  not  then  been  on  the  bench)  might  not  be  famihar 
with  the  status  of  persons  doing  business  in  those  islands,  I  informed  him  it 
was  only  a  quasi  allegiance  the  man  had  to  give,  as  I  had  been  there,  and  was 
somewhat  acquainted  with  the  matter.  Booker  thanked  me,  and  said  he  had 
informed  himself  on  that  point.     I  was  surprised  at  his  legal  acumen. 

"In  the  early  sixties,  when  Booker  was  sitting  as  Judge  in  a  case  where  a 
woman,  Mrs.  J.  P.  D.  Wilkins,  was  being  tried  for  the  murder  of  her  husband 
in  Stockton,  a  female  witness  was  put  on  the  stand,  and  when  an  attorney 
commenced  questioning  her  she  began  to  relate  that  she  was  a  spiritualist  and 
a  medium.  Judge  Booker,  who  was  apparently  taking  no  notice  of  the  wit- 
ness, but  heard  what  she  said,  immediately  turned  toward  her  and  said,  'Stop, 
Madam.'  Then  he  told  her  that  if  she  knew  anything  about  the  case,  to  tell 
it.  but  that  he  did  not  want  any  spirits  in  his  court,  and  was  not  going  to  have 
anv.  That  settled  the  matter.  The  court-room  was  crowded,  and  his  dictum 
was  applauded. 

"In  the  fall  of  1849,  "^vhen  Judge  Charles  M.  Creanor,  who  had  just  arrived 
in  California  from  across  the  plains  and  was  camped  with  a  party  on  the  out- 
skirts of  Stockton,  some  one  came  to  him  and  said  there  was  a  man  to  be 
tried  in  the  alcalde's  court  for  some  trivial  offense,  larceny,  he  thought,  but 
whether  grand  or  petit  he  did  not  know ;  and,  said  he,  the  man  had  money 
to  employ  an  attorney,  but  the  Judge  was  going  to  try  the  case  without  his 
having  one,  or  a  jury  either.  So  Creanor  volunteered  to  go  and  defend  him. 
He  asked  the  Judge  under  what  law  he  was  to  be  tried,  Mexican  or  American. 
The  Judge  did  not  know  for  certain.  There  were  no  law  books  in  the  court- 
room, but  Creanor  produced  an  old  gazeteer  of  the  State  of  Arkansas  that 
had  the  Constitution  of  the  United  States  in  it,  and  showed  the  Judge  that 
the  man  had  the  right  of  trial  by  jury  under  American  law.  and  also  had 
the  right  to  an  attorney.  He  got  the  jury,  and  the  prisoner  was  acquitted." 
"I  heard  Judge  Creanor  say,"  writes  Mr.  Ayers,  "that  he  believed  they  would 
have  hung  the  man  if  he  had  not  been  there  to  defend  him." 

"Ben.  Moore,  who  was  practicing  law  in  Sonora,  Tuolumne  county,,  in 
the  fifties,  was  a  peculiar  character.  He  had  a  feminine,  musical  voice,  and 
when  excited  it  was  pitched  to  a  high  key.  But  he  was  always  decorous  and 
had  the  esteem  of  his  associates.  On  one  occasion  in  a  case  in  a  justice's  court 
between  a  white  man  and  a  colored  man,  Moore  being  attorney  for  the  latter, 
when  examining  the  jurors  he  was  very  particular,  in  questioning  them,  to 
know  what  State  they  were  from.  He  would  question  them  in  this  way : 
"What  State  did  you  say  you  were  from?"  If  the  juror  answered  "Texas," 
he  would  repeat  the  name  short  and  quick,  twice,  "Texas,  Texas,"  and  then 
say,  "All  right,  all  right."  If  the  juror  answered  "New  York,''  he  would 
say  "New  Yorke,  New  Yorke,"  with  a  long  sound  on  the  "e,"  and  then  say, 
'We'll  excueese  you.'  " 


History  of  the  Bench  and  Bar  of  California.  387 

FRANCIS  J.  DUNN. 

Among  the  causes  celehrcs  occurring  in  early  times  was  one  of  forcible 
entry  and  unlawful  detainer,  brought  by  one  faction  of  a  church  in  Nevada 
City  against  another  faction,  which  had  taken  possession  of  the  church  edifice 
and  held  it  to  the  exclusion  of  the  complaining  brethren.  The  case  was  tried 
before  Justice  J.  P.  Van  Hagen  (he  was  afterwards  a  justice  in  San  Fran- 
cisco), a  weak,  amiable  old  man,  and  by  a  jury.  The  proceedings  were  turned 
to  a  ridiculous  farce  from  the  start  by  the  unfortunate  fact  that  the  prose- 
cuting attorney  was  excessively  inebriated,  and  the  other  lawyers  were  not 
far  behind  in  that  regard.  The  justice  sat  behind  a  light  pine  table.  The 
prosecutor,  in  arguing  law  points  to  the  justice,  and  especially  declaring  that 
he  should  "go  to  jail  with  my  brother  Thayer,"  whom  he  believed  was  about 
to  be  committed  for  contempt,  notwithstanding  the  court  disclaimed  any  such 
intention,  would  strike  the  table  heavily  with  a  book,  and  make  it  dance  almost 
to  the  judicial  nose.  "Do  not  pound  my  table,  Mr.  Dunn,"  said  the  justice. 
"]\Iay  it  please  5^our  honor,  I  ivill  pound  your  table,"  said  Dunn,  hitting  the 
frail  piece  of  furniture  a  blow  that  made  it  skip  again.  A  few  days  before, 
Dunn  had  had  a  dog  case  before  the  same  justice,  the  decision  in  which  did 
not  j)lease  him.  Alluding  to  that  case,  he  said,  "I  dreamed  a  dream  the  other 
night,  that  an  old  fool  of  a  justice  decided  that  a  dog  is  property  (whack). 
"Don't  pound  my  table,  Mr.  Dunn."  "May  it  please  your  honor  (whack),  I 
zvill  pound  your  table"  (whack).  Here  one  of  the  jurymen  said:  "We 
have  had  enough  of  this  sort  of  thing.  I  have  something  better  to  do  than 
to  listen  to  this  drunken  gabble."  "Yaas,  you  have,  have  you?"  said  Dunn, 
with  a  sneer.  "Who  are  you?  Know  it  all,  don't  you?"  The  other  lawyers 
had  been  grinning,  and  rather  helping  out  the  absurdity  of  the  thing;  but  this 
intervention  was  too  much  for  them,  and  they  thought  it  necessary  to  frown 
down  further  levity. 

The  case  proceeded  until  it  came  to  Dunn's  tiu'n  to  address  the  jury,  when 
he  began  as  follows:  "Gentlemen  of  the  jury;  and  wdien  I  say  gentlemen  of 
the  jury,  I  mean  eleven  of  you;  for  there  is  one  of  you  who  is  very  far  from 
being  a  gentleman."  Here  the  juror  referred  to  jumped  up  and  pulled  off 
his  coat,  and  started  for  Dunn,  Ijut  peace  was  restored  with  difficulty,  and 
the  case  concluded. 

On  one  occasion,  in  replying  to  an  argument,  Dunn  said  :  "The  remarks 
of  counsel  remind  me  of  a  quotation  from  a  classical  poet.  I  cannot  exactly 
recall  the  name  of  the  poet,  and  I  have  forgotten  the  (|uotation,  but  if  \  onuld 
repeat  it,  the  court  would  see  that  it  is  apropos." 

It  is  related  that  Dunn  prepared  his  statements  for  the  Supreme  Court 
without  much  condensation  or  regard  to  method,  copying  all  kinds  of  papers 
and  orders  into  them.  Before  printed  transcripts  were  in  vogue,  such  docu- 
ments were  rather  confusing.      It  so  happened   that  as   Dunn   was  arguing 


388  History  of  the  Bench  and  Bar  of  California. 

one  of  his  cases  in  the  Supreme  Court,  Judge  Murray,  under  some  mistake 
as  to  the  facts,  said  to  the  advocate  that  the  court  did  not  want  to  hear  him 
any  further,  hut  some  time  after  decided  the  case  against  him.  Dunn  soon 
had  another  case  lief  ore  the  same  tril)unal.  and  commenced  reading  his  inter- 
minahle  transcript,  with  motions,  orders,  and  evidence  set  out  at  appalHng 
length.  "State  your  case,  Mr.  Dunn,"  said  Judge  ^Murray;  "it  is  not  neces- 
sary to  read  the  whole  record."  "X'o  you  don't,  may  it  please  your  honors," 
said  Dunn ;  "the  Supreme  Court  told  me  that  once  before,  and  then  decided 
the  case  against  me.  I  am  going  to  read  this  record  and  make  the  court 
understand  me."  This  lie  did,  to  the  horror  of  the  court,  which  had  then  no 
limit  for  time,  and  the  reading  and  argument  occupied  three  days.  It  was 
not  long  thereafter  that  the  Supreme  Court  fixed  a  limit  to  the  length  of  argu- 
ments before  it.  Tt  is  only  fair  to  Mr.  Dunn  to  remark  that  his  eccentricities, 
when  under  the  influence  of  liquor,  now  color  the  memory  of  him,  perhaps  to 
the  unjust  exclusion  of  other  more  worth}-  impressions.  His  practice  was 
large,  and  he  was  quite  successful  in  conducting  it.  He  was  understood  to 
be  scrupulously  and  even  belligerently  faithful  to  his  clients,  and  his  convivial 
habits  were  broken  l)y  long  spells  of  sobriety.  He  was  not  the  greatest  toper 
at  the  Nevada  county  bar.  luit  was  probably  the  most  eccentric  man  when 
inebriated.  He  was  one  of  the  most  singular  characters  at  this  bar.  He  was 
a  man  of  sturdy  sense,  somewhat  uncultivated,  who  had  picked  up  a  fair 
knowledge  of  law,  was  ])leasant  and  accommodating  wheii  solier,  and  opinion- 
ated and  surly  when   in  his  cups. 


BUCKNER  AND  ELLIS. 

It  was  once  annonnced  in  a  newspaper  that  a  certain  lawyer  was  the 
author  of  the  Sole  Trader  Act.  It  was  an  error.  E.  F.  W.  Ellis  wrote  and 
secured  the  passage  of  that  measure,  its  necessity  being  suggested  to  him 
by  the  circumstances  of  a  certain  female  friend  of  his  in  Nevada  City.  It  is 
one  of  the  wisest  acts  on  our  statute  books,  although  it  has  often  been  made 
the  cover  of  gross  fraud. 

Ellis  was  in  the  lower  house  of  the  California  legislature  in  1852.  He 
was  an  able  lawyer;  but,  like  Baker,  he  was  restive  in  harness,  and  thirsted 
for  glory.  He  went  back  to  his  State  and  P.aker's  State,  and,  during  tlie 
war,  was  Colonel  of  the  Fifteenth  Illinois  regiment,  one  of  the  earliest  to 
volunteer  on  the  first  call.  He  fell  in  a  charge  at  Shiloh.  "Catch  me,  boys," 
were  his  last  words.  While  criticising  the  evidence  of  a  witness,  on  one 
occasion,  in  a  Nevada  City  court,  Ellis  glanced  at  the  subject  of  his  remarks 
just  in  time  to  see  him  draw  a  pistol.  Ellis  drew  a  long  knife,  which  he 
carried,  and,  leaping  over  the  bar  table,  rushed  upon  his  enemy,  who  at  once 
fled  into  the  street.     Ellis  then  returned  and  concluded  his  argument. 

Judge  Stanton  Buckner  was  from  Missouri,  to  which  State  he  returned. 


History  of  the  Bench  and  Bar  of  California.  389 

Sargent,  in  liis  hasty  history  of  the  Nevada  bar,  tells  this  of  Buckner :  To 
demur  was  his  strong  forte.  He  was  a  kind  and  gentlemanly  man.  l)ut  dis- 
agreeable to  practice  wdth,  by  reason  of  his  prolixity  and  slowness.  In  argu- 
ing a  petty  criminal  case  one  day  before  Justice  Endicott,  who  was  very  thin 
and  bony,  and  who  had  a  very  hard  seat  to  sit  upon,  Buckner,  after  a  long 
talk,  assumed  a  certain  attitude  peculiar  to  him,  and  which  indicated  that  he 
had  a  great  deal  more  to  say.  "I  will  now  show  your  honor,''  he  said,  "that 
a  man  is  presumed  to  be  innocent  until  he  is  proved  guilty."  "The  court 
admits  that,"  said  Endicott,  interrupting;  "the  court  is  with  you  in  that;  but 
there  is  no  presumption  that  the  court's  bottom  is  made  of  cast-iron." 


EARLY   HISTORY  AND   EARLY  DAY   LAWYERS. 

It  has  not  often  occurred  that  the  making  of  a  constitution  or  the  estab- 
lishment of  a  State  government  has  marked  out  a  new  era  in  civdized  govern- 
ment beyond  the  confines  of  that  State,  or  secures  to  the  people  outside  of  the 
State  rights  they  had  not  formerly  possessed.  But  such  was  the  fact  in  regard 
to  California. 

The  admission  of  the  State  into  the  American  Union  was  a  most  excep- 
tional occurrence ;  it  did  mark  out  a  new  era  in  the  course  of  the  political  his- 
tory of  this  nation  because  California  became  a  free  State,  and  from  the 
beginning  we  made  history  fast.  Three  years  after  the  territory  was  ac(|uired 
from  Mexico,  fully  three  hundred  thousand  people  had  settled  there,  and  we 
built  better  than  we  knew.  True,  the  people  who  then  came  were  not  engaged 
in  permanent  pursuits.  Placer  mining  for  gold  was  the  only  business  of  that 
time,  but  the  material  for  a  State  was  here,  and  it  remained  here.  The  young, 
the  culti\ate(l  and  enterprising  men  of  the  whole  country  flocked  to  ihis  new 
field,  and  ver}-  soon  a  government  was  created  comiuensurate  with  the  needs 
of  this  i)e()i)le,  and  largely  in  advance  of  the  governments  of  other  new  States 
which  had  been  recently  admitted  into  the  L'nion. 

We  had  no  laws  here  in  the  beginning  because  we  had  no  territorial  gov- 
ernment, so  in  the  fall  of  1849  a  constitutional  convention  was  called,  and 
as  early  as  the  15111  of  December,  ICS49,  the  first  California  legislature  met, 
I)ursuant  to  that  constitution,  at  San  Jose.  Mr.  v^tc])licn  J.  Incld.  atterwards 
a  Justice  of  the  Supreme  Court  of  California,  and  for  man}-  years  a  Justice  of 
the  Supreme  Court  of  the  United  States,  pre])ared  ;nid  submitted  to  the  legis- 
lature a  Practice  Act,  which  was  duly  passed,  and  the  machinery  of  the  new 
government  was  thus  started.  \\y  a  clause  in  the  hrst  constitution,  the  llrst 
Judges  of  the  Supreme  Court  and  of  the  District  Courts  were  selected  by  the 
legislature.  The  first  decision  of  the  Supreme  C<iurt  was  made  in  March, 
1850. 

We  inherited  man}-  of  the  then  existing  laws  as  to  land  titles  from  Mexico, 
and  thus  in  the  \ery  organization  of  the  California  State  government  we  took 


390  History  of  the  Bench  and  Bar  of  California. 

a  long  step  towards  combining  the  best  of  the  legal  precedents  of  the  Old 
World  with  the  progressive  spirit  of  the  New.  We  united  the  old  civil  laws 
of  Spain  and  ■Mexico  with  the  most  useful  of  the  English  common  laws,  in 
forming  our  system  of  jurisprudence  to  govern  the  property  rights  of  the 
people  of  California,  and  at  the  same  time  we  secured  the  broadest  liberty  to 
all  men.  and  this  was  done  at  a  time  when  there  was  a  most  active  rivalry  in 
the  admission  of  new  States  into  the  Union.  This  rivalry  was  between  free- 
dom and  slavery. 

As  stated.  California  was  made  a  free  State.  The  love  of  personal  liberty 
was  thus  earlv  inculcated  in  our  people.  Added  to  this,  the  romantic  beauty 
of  the  country,  the  wild  and  unsubdued  mountain  scenery,  aided  by  the  cir- 
cumstance of  our  isolation  from  other  parts  of  the  American  Union,  made  the 
people  of  this  new  land  bold,  adventuresome  and  independent. 

It  may  be  noted,  as  before  stated,  that  the  old  ]\Iexican  laws  in  relation  to 
land  titles  came  with  our  treaty  with  that  country.  This  treaty  introduced 
into  California  jurisprudence  the  civil  laws  as  to  the  grant  and  deraignment 
of  the  title  to  land.  Thus  a  knowledge  of  the  civil  law  was  combined  with 
the  necessary  knowledge  of  the  English  common  law,  together  with,  the 
statute  laws  of  the  State  and  Nation,  and  our  bench  and  bar  w'ere  early 
schooled  in  the  most  intricate  questions  involved  in  land-law  litigation. 

The  discovery  of  gold  in  California  and  the  vast  amount  of  that  precious 
metal  taken  from  our  placer  mines  created  new  enterprises,  by  reason  of  the 
vast  increase  of  wealth.  This  inspired  new  and  varied  legal  inquiries,  and 
of  necessity  there  was  called  into  use  new,  varied  and  different  legal  construc- 
tions, and  new  legal  maxims,  which  were  made  to  fit  the  altered  condition  of 
our  people.  California  was  alone,  indeed.  If  we  had  been  on  an  island  in  a 
vast  and  boundless  ocean,  we  could  not  have  been  more  isolated  from  the  rest 
of  the  world.  We  Avere  so  remote  from  other  parts  of  our  own  country  that 
we  became  a  people  unto  ourselves.  From  necessity,  we  were  builders  of  gov- 
ernment. We  became  self-reliant,  because  we  had  no  one  to  lean  upon,  and 
thus  the  inventive  genius  of  the  hour  gave  to  the  bench  and  bar  of  California 
a  wider  scope  and  a  broader  and  more  varied  experience,  and  created  a  new 
legal  procedure  to  fit  these  peculiar  conditions. 

For  instance,  the  popular  miners'  meetings  of  the  early  fifties,  with  the 
codes  of  local  laws  adopted  by  each  of  them,  were  ever  after  recognized  as 
legal  and  binding,  and  the  acts  of  those  public  meetings  from  thence  till  now 
form  a  part  of  the  laws  of  the  State. 

But  California  was  particularly  fortunate  in  its  judiciary.  Judge  Ogden 
Hofifman,  one  of  the  first  United  States  District  Judges,  was  a  man  of  broad 
understanding,  of  rare  and  varied  learning  in  the  law  and  of  undoubted  integ- 
rity. By  his  decisions  he  settled  more  than  one-half  of  the  conflicting  land 
titles  of  the  State,  and  he  had  more  to  do  in  deciding  intricate  questions  affect- 
ing the  settlement  of  all  Mexican  land  titles  in  California  than  all  the  other 


History  of  the  Bench  and  Bar  of  California.  391 

Judg^es  of  the  Coast.  He  was  technical  only  when  technical  rules  secured 
more  ample  justice,  l)ut  generally  his  decisions  were  broad  and  far-reaching  in 
their  scope. 

Our  State  judiciary  was  hardly  less  conspicuous  for  its  ability.  The  first 
Judges  of  our  Supreme  Court  were  S.  C.  Hastings,  Chief  Justice  (the  founder 
of  the  Hastings  Law  School),  and  H.  A.  Lyons  and  Nathaniel  Bennett,  Jus- 
tices. In  the  preface  to  Volume  I  of  the  California  Reports  will  be  found  a 
statement  of  the  embarrassing  situation  then  confronting  that  court.  It  was 
found  that  the  laws  of  Spain  and  Mexico,  by  the  treaty  stipulation  between 
Mexico  and  the  United  States,  were  so  interwoven  into  American  law  that  it 
often  became  a  problem  of  more  than  doubtful  solution  where  the  civil  law 
ended  and  the  English  common  law  and  our  statutes  began. 

Most  of  those  who  early  became  conspicuous  as  Judges  and  law-yers  came 
to  California  unheralded;  they  were  all  young  and  untried  men  at  home;  none 
of  them  had  family  alliances  here  to  help  them  into  business  success,  or  to  give 
them  fame  in  this  new  land ;  they  depended  alone  on  their  own  resources,  and 
the  strife  for  success  rested  on  the  survival  of  the  fittest;  and  the  fittest  man, 
according  to  the  test  then  adopted,  was  the  most  successful  man,  and  the  most 
successful  Judge  was  the  man  who  dispensed  ex-en-handed  justice.  A  sense 
of  justice  was  the  predominating  sentiment  of  all  men  at  that  time,  and  if  the 
people  could  not  secure  justice  through  the  courts,  they  got  it  by  means  of 
a  rope. 

It  would  be  impossible  to  attempt  to  name  all  the  most  learned  among  our 
early  California  lawyers;  but  first  among  those  whom  the  writer  met  and 
knew  was  Hall  McAllister.  All  in  all,  he  was  the  ablest  lawyer  I  ever  saw. 
His  varied  learning,  his  indomitable  industry,  his  faultless  memory,  added  to  a 
broad-minded  conception  of  the  right  and  wrong  of  each  case  in  which  he 
was  employed,  together  with  a  magnificent  presence,  and  urbanity  or  manner 
in  court;  and  the  further  fact  that  wath  the  old  and  ynung  alike  he  was  always 
a  gentleman  ;  marked  him  as  the  most  illustrious  member  of  the  ablest  bar 
any  new  State  had  theretofore  produced.  It  mattered  not  whether  defending 
a  person  charged  with  murder,  trying  a  patent  case,  engaged  in  an  acti<^n  in 
equity  for  an  accounting,  or  whatever  the  legal  ])r()bk'm  was,  he  was  ahvavs 
the  same  serene,  commanding  intellect  of  the  case. 

Following  Mr.  McAllister,  and  only  a  step  below  him  in  point  of  intellect- 
ual endowments,  were  the  Shafters,  Halleck.  Peacliv  and  Rillines,  IToee 
Wilson,  Gregory  Yale,  John  "R.  Felton  (who,  however,  came  to  California  at  a 
later  date),  and  many  others  not  named;  while  up  country  and  in  the  mines 
was  the  ever-famous  I'od  Robinson,  a  man  of  rare  and  most  distinguished  abil- 
ity; McConnell,  li;irdly  his  inferior,  and  later  on,  S.  W.  Sanderson,  afterwards 
on  the  Supreme  bench,  and  a  host  of  others  I  might  recall.  Indeed,  it  would 
be  quite  beyond  the  limits  of  this  article  to  even  mention  all  the  distinguished 
characters  who  at  an  early  date  f<irmcd  the  nucleus  of  a  bar  second  to  none 
in  anv  other  State  in  the  Union. 


392  History  of  the  Bench  and  Bar  of  California. 

A  few  of  the  pioneer  lawyers  of  California  are  now  living,  and  to  none 
.t)f  these  do  I  intend  to  refer.  At  the  Sacramento  l)ar  there  were  many  who 
should  be  named.  For  instance,  H.  O.  Beatty,  for  a  long  time  a  member  of  the 
firm  of  Robinson,  Beatty  &  Heacock ;  Colonel  P.  L.  Edwards,  J.  W.  Winans, 
Thomas  Sunderland  and  J.  B.  Harmon,  all  able  and  learned  men.  At  the 
criminal  bar  no  man  in  or  out  of  California  could  cciual  the  ever-charming 
N.  Greene  Curtis.  He  was  a  most  persuasive  forensic  talker,  a  devoted  friend 
and  companion,  and  always  and  everywhere  a  gentleman.  Could  I  say  more 
of  this  gifted  and  lovable  man? 

While  Southern  California  was  slow  in  developing,  yet  conspicuous  among 
the  pioneer  lawyers  were  E.  J.  C.  Kewen,  V'olney  E.  Howard  and  P.  Delia 
Torre. 

In  the  early  days  the  Supreme  Court  was  not  very  strict  as  to  the  exam- 
ination and  admission  of  young  men  to  the  Ijar.  I  know  an  instance  where 
a  young  man  was  being  examined  by  the  court  for  admission,  and  Mr.  Chief 
Justice  Baldwin  asked  the  applicant  one  question,  "What  is  a  deed?''  The 
applicant  gave  Blackstone's  definition  of  "Any  instrument  of  writing  under 
seal."  A  young  and  (|uite  fresh  member  of  the  bar  wdio  was  present  and 
who  wished  to  air  his  learning,  objected  to  the  answer  as  being  too  broad, 
but  Judge  Baldwin,  who  was  quite  a  wag  as  -well  as  a  great  lawyer  and  a 
most  learned  Judge,  said  that  unless  the  complaining  attorney  could  show 
he  was  a  party  aggrieved,  the  court  would  not  overrule  Blackstone  that 
morning. 

So  another  instance,  somewhat  in  the  same  line,  occurs  to  me.  A  young 
and  rather  glib  student  was  being  examined  by  Mr.  Justice  Norton  for  admis- 
sion to  the  Superior  Court.  Judge  Norton  was  a  man  who  talked  very  little 
to  any  one,  and  so  he  had  great  aversion  to  examining  applicants  for  admis- 
sion. In  this  instance  he  asked  the  applicant  two  questions;  first,  "What  is 
the  ])urpose  of  a  demurrer?"  to  which  the  student  made  the  popular  answer, 
"For  delay."  The  Judge  said  to  him.  "Young  man,  that's  not  law."  The 
Judge  then  proceeded  to  put  another  and  a  second  question  to  the  applicant : 
"If  a  man  brought  you  a  promissory  note  past  due  and  wanted  it  collected 
by  law  in  the  most  expeditious  manner,  what  would  you  do?"  The  student 
answered,  "I  would  collect  my  fee,"  when  the  Judge  replied,  "Young  man, 
that  is  not  law,"  and  bending  over  the  high  desk  in  front  of  him,  for  he  was 
a  stout  man,  he  said  to  the  clerk,  "Mr.  Clerk,  swear  him  in."  That  ended  the 
examination  and  ])roduced  a  general  laugh,  but  in  which  Judge  Norton  did 
not   join. 

In  the  early  days  of  my  law  practice  at  Sacramento  there  was  a  famous 
"dog  case,"  so-called,  being  tried  before  a  justice  of  the  peace.  The  charge 
was  that  a  vicious  dog  had  bitten  a  boy,  and  the  suit  was  for  $299,  the  juris- 
dictional limit  of  the  Justice's  Court.  The  case  came  on  for  trial  on  a  hot 
day  in  summer,  and  Len  Harris,  the  then  constal)le,  afterwards  killed  on  the 


History  of  the  Bench  and  Bar  of  Califonnn.  393 

railroad  by  highwaymen,  summoned  a  jury,  l)ut  it  was  so  oppressively  hot 
that  every  one  summoned  had  some  excuse  for  not  serving  as  a  juror,  until 
it  began  to  look  as  though  a  jury  could  not  be  obtained.  At  that  time  the 
parties  might  agree  to  a  jury  in  the  Justices'  Court,  composed  of  any  number 
consisting  of  twelve  or  less,  and  so  a  well-know-n  convivial  member  of  the  bar 
turned  to  the  counsel  in  the  case  and  said,  "Accept  me  as  a  jury."  This  was 
done,  and  the  case  was  tried.  The  court  at  all  convenient  times  adjourned 
to  Harry  Clay's  saloon  for  mint  juleps,  until  toward  night  the  court,  jury, 
counsel  and  parties  were  loaded.  Finally  the  case  w'as  submitted,  and  as 
it  had  been  the  custom  for  the  justice,  constable,  lawyers  and  parties,  as  there 
was  no  jury-room,  to  leave  the  jury  in  the  court-room  (in  this  instance  by 
itself)  while  they  went  out  on  the  sidewalk,  every  one  left  the  room  except 
the  jury. 

Soon  the  jury  wanted  more  juleps,  which  were  sent  in  to  him,  until  he 
motioned  us  all  to  come  in.  With  some  difficulty,  the  justice  mounted  the 
rostrum,  and  asked  if  the  jury  had  agreed.  The  single  juror,  with  some  con- 
siderable effort,  arose  and  said  with  dignity,  "May  it  please  the  court,  the 
jury  can't  agree."  This  was  so  funny  that  the  case  ended  there.  The  dog 
w-as  killed,  the  boy  got  w-ell,  and  every  one  was  made  happy  by  this  unique 
verdict,  or  rather  lack  of  verdict. 

Judge  Creanor,  the  early  District  Judge  of  the  counties  of  El  Dorado, 
Amador,  Calaveras,  Tuolumne  and  San  Joaquin,  was  a  most  peculiar  man. 
He  was  an  able,  eminently  just  and  always  an  honest  man.  He  was  formerlv, 
given  to  gaming,  but  his  play  at  cards  and  his  companionship  for  that  purpose 
was  kept  clearly  distinct  from  his  judicial  duties.  So  popular  was  he  that  in 
1 86 1,  when  a  bill  w^as  introduced  into  the  legislature  to  divide  up  his  district, 
the  object  being  to  give  Hon.  James  H.  Hardy  a  judicial  position,  every  law'yer 
in  his  whole  district,  of  all  political  complexions,  petitioned  the  legislature  not 
to  pass  it.  But  the  bill  passed,  and  in  the  end  Creanor  died  at  Stockton,  out 
of  all  position  and  quite  poor. 

Judge  Creanor  was  not  educated  for  the  law ;  he  was  an  old  army  officer. 
He  rarely  gave  reasons  for  his  decisions;  he  just  decided  the  cases,  and  almost 
always  decided  them  right.* 

The  w^riter  was  once  present  at  a  murder  trial  before  him.  He  did  not 
befog  the  jury  by  a  long,  meaningless  or  contradictory  charge.  He  first  sub- 
mitted the  proposed  instructions,  offered  by  both  sides,  after  pruning  them 
dow^n  to  meet  his  approval;  then  he  opened  the  statute  and  laving  his  open 
hand  upon  its  broad  pages,  as  if  to  say,  "Gentlemen  of  the  jury,  here  is  the 
law,"  he  read  the  statutory  definition  of  the  crime.     He  told  them  briefly 


*  This  Judge  was  about  to  take  the  steamer  at  San  Francisco  once  for  New  York  by  way 
of  Panama.  He  looked  into  Bancroft's  Book  Store,  which  had  a  law  department.  A  lawyer 
friend  from  Stockton  met  him  there  and  to  him  the  Judge  said  that  he  was  looking  for  some 
light  reading  to  take  with  him  on  the  steamer.  When  he  had  made  his  purchase,  his  friend 
noticed  that  the  light  reading  he  had  selected    was  "Blackstone's  Commentaries." — EDITOR. 


394  History  of  the  Bench  and  Bar  of  California. 

they  must  give  the  prisoner  the  benefit  of  all  reasonable  doubts,  but  he  also 
clearly  defined  what  a  reasonable  doubt  was.  He  then  without  delay,  and 
without  muddling  the  jury,  sent  them  out  to  confer  as  to  their  verdict.  They 
almost  always  found  a  verdict.  Crime  was  punished  in  his  district,  and  he 
was  legislated  out  of  office  largely  for  that  reason. 

In  the  early  fifties  there  were  many  serious  contests  between  grant  men 
(so-called)  and  squatters.  Most  of  these  troubles  were  settled  out  of  court. 
This  was  always  a  dangerous  way  of  settling  a  question  of  law,  and  in  time 
most  of  the  lawyers  of  California  objected  to  the  jurisdiction  of  the  court  over 
what  was  known  as  "the  gun  practice.'' 

I  was  once  employed  by  some  public  land  men,  or  "squatters"  as  they 
were  termed,  and  I  advised  them  to  appeal  to  the  laws  of  their  country  and 
quit  fighting.  They  said  they  would,  and  in  a  few  months  one  of  their  num- 
ber called  on  me,  and  said  they  were  then  prepared  for  a  peaceful  mode  of 
settling  their  land  troubles.  I  was  much  surprised  and  asked  him  how.  He 
replied  that  they  had  formed  a  Squatters'  League,  and  every  man  but  one 
within  ten  miles  of  his  place  belonged  to  it,  and  the  only  non-league  man  was 
a  grant  man.  Soon  after  I  was  called  down  to  the  so-called  fighting  line, 
where  they  were  going  to  try  some  forcible  entry  cases.  When  I  got  there 
I  found  they  had  a  jury  summoned,  every  one  of  whom  was  a  member  of  the 
League.  The  justice  and  constable  were  members  of  the  League,  and  the 
verdict  was  necessarily  in  favor  of  that  body.  After  the  trial  the  grant  owner 
asked  the  men  who  had  cut  what  he  claimed  to  be  his  hay,  if  they  would  pay 
the  taxes  on  the  land,  as  they  were  in  possession  of  it.  They  answered  that 
public  lands  could  not  be  taxed,  and  that  they  did  not  want  to  astonish  the 
government  by  paying  taxes  on  its  own  property. 

Colonel  Hoge  was  for  many  years  a  leading  member  of  the  San  Francisco 
bar,  and  was  for  some  years  Judge  of  the  Superior  Court.  He  was  always 
on  the  most  pleasant  terms  with  all  the  members  of  the  bar  and  Judges  of  the 
Supreme  Court,  and  always  a  genial  man. 

At  one  time  he  was  in  the  Supreme  Court  waiting  his  turn  to  argue  a  case, 
when  he  got  into  an  animated  whispered  conversation  with  one  of  his  as.so- 
ciates,  and  unthinkingly  talked  a  little  loud.  This  disturbed  one  of  the  mem- 
bers of  the  court,  who  called  the  messenger  and  asked  him  to  tell  Colonel  Hoge 
that  he  was  disturbing  the  court.  The  Colonel,  being  unconscious  that  he 
had  offended,  said:  "Tell  the  Judge  to  go  to  the  devil."  The  messenger 
made  no  report  to  the  Judge  until  he  was  summoned,  and  asked  what  Colonel 
Hoge  had  said.  "Why,"  said  the  messenger,  stammering  a  reply,  "he  said 
Your  Honor  might  go  to  the  devil."  The  Judge  calmly  replied  that  he  thought 
that  was  what  he  said. 

Perhaps  one  of  the  most  brilliant  intellects  that  the  bar  of  this  State  ever 

produced  was  Mr.  C ,  of  Sacramento.     As  large  of  heart  as  he  was  of 

intellect,  he  had  Init  one  enemy  (himself),  and  but  one  conspicuous  fault  (the 
desire  to  indulge  too  much  in  the  cup  that  both  cheers  and  inebriates). 


History  of  the  Bench  and  Bar  of  California.  395 

He  came  from  Pennsylvania,  my  own  State.  Both  of  us  were  young 
men,  he  somewhat  my  senior  in  years,  and  we  met  often  and  talked  over  events 
at  home.     I  remember  an  instance  in  his  life  which  lingers  with  me  both  for 

the  pathos  and  humor  of  it.     C had  been  out  on  one  of  his  periodical 

drinking  spells,  what  in  those  days  was  called  a  "toot,"  and  I  had  been  trying 
to  induce  him  to  go  home. 

With  much  difftculty  I  persuaded  him  to  get  into  a  carriage  to  send  him 
to  his  room.  Asking  him  where  he  lived,  he  turned  to  me  with  intense  dig- 
nity and  replied :  "My  boy,  I  live  on  the  surface  of  the  occasion,  and  trust 
to  the  sublimity  of  luck."     Nothing  was  truer  and  nothing  more  lamentable. 

He  was  an  eloquent  and  a  versatile  talker.  I  remember  at  one  time  hear- 
ing him  make  a  political  speech.  He  had  been  then  a  Know-Nothing,  and 
he  was  attempting  to  prove  that  though  he  was  once  a  Know-Nothing,  he  was 
yet  loyal  to  the  foreign  element  of  the  State,  and  saying  this,  he  recited  in 
excellent  French,  and  in  the  most  inspiring  manner,  a  verse  or  two  from  the 
Marseilles  Hymn,  and  before  he  was  through  with  his  speech  he  repeated  in 
German  one  of  the  most  touching  passages  from  Germany's  great  poet,  Goethe. 
It  is  needless  to  say  that  he  delighted  all  his  listeners. 

M.  M.  BSTBB. 

San  Francisco,  June,  1900. 


THOMAS  B.  REED. 


A  San  Jose  press  writer  under  date  of  August  31,  1899,  disclosed  that  Thos. 
B.  Reed,  of  Maine,  who  was  speaker  of  the  National  House  of  Representatives, 
for  four  years,  ending  March  4,  1899,  was  connected  with  the  bar  of  that 
section  in  the  early  sixties.     He  wrote  as  follows : 

The  records  of  the  courts  here  show  the  facts  as  to  the  career  m  Santa 
Clara  county  of  Thomas  B.  Reed  of  Maine,  when  he  was  a  young  man  twenty- 
four  years  of  age.  At  that  time  he  spent  two  years  here,  and  there  were  pros- 
pects that  he  would  cast  his  lot  and  fortune  in  San  Jose,  for  life.  As  he  is 
remembered  now,  he  was  a  young  man  of  slight  figure,  and  neither  in  bulk  nor 
in  the  impression  that  he  made  did  he  give  any  promise  of  the  physical  size 
and  political  eminence  to  which  he  afterward  attained. 

On  first  coming  from  his  native  state.  Reed  for  a  time  taught  school  at 
Alviso.  Subsequently,  he  located  at  San  Jose,  and  began  the  study  of  law  in 
the  office  of  S.  O.  Houghton,  a  well-known  pioneer  attorney  of  Santa  Clara 
county,  who  afterward  became  a  Congressman  from  the  then  Fourth  Con- 
gressional district,  and  who  is  now  prominent  at  the  bar  of  Los  Angeles.  Reed 
was  admitted  to  the  bar  at  the  September  term,  1863,  of  the  District  Court 
of  which  Samuel  B.  McKce  was  Judge. 

The  committee  appointed  to  e.xamine  him  as  to  his  qualifications  was  com- 
posed of  S.  O.  Houghton,  C.  T.  Ryland,  the  well-known  capitalist,  who  died 
a  few  years  ago,  and  W.  T.  Wallace.     At  that  time.  Attorneys  Ryland  and  Wal- 


396  History  of  the  Bench  and  Bar  of  California. 

lace  were  partners  in  a  flourishing  law  business  in  San  Jose.  On  the  day  fol- 
lowing the  application  the  fact  of  young  Reed's  admission  to  practice  appears 
in  the  court  records  as  follows — on  September  8,   1863: 

And  now  come  Messrs.  Ryland,  Wallace  and  Houghton,  the  committee 
appointed  by  the  court  to  examine  said  applicant,  Thomas  B.  Reed,  Esq.,  and 
report  favorably  to  the  admission  of  said  applicant.  It  is,  therefore,  ordered 
by  the  court  that  the  said  Thomas  B.  Reed,  Esq.,  be  and  he  is  hereby  admitted 
to  practice  as  an  attorney  and  counsellor  of  the  court  upon  his  taking  the  neces- 
sary oath. 

It  has  been  said  that  the  examiners  only  asked  Reed  one  question,  which 
had  little  if  any  relevance  to  his  knowledge  of  law  practice,  but  that  the  answer 
was  so  witty  they  let  him  off  on  that  and  recommended  his  admission  to  prac- 
tice at  the  bar  without   further  ado. 

On  his  visit  to  San  Jose  during  the  presidential  campaign  of  1896,  Con- 
gressman Reed  made  some  inquiries  regarding  Judge  Isaac  N.  Senter,  who  was 
County  Judge  there  when  he  was  admitted  to  the  bar.  Reed  stated  that  he 
remembered  his  first  case  before  him.  It  was  the  defense  of  a  Spaniard  named 
Jose  Garcia,  charged  with  an  assault  with  the  intent  to  kill  and  murder.  The 
testimony  offered  by  the  prosecution  made  it  plain  enough  that  Jose  Garcia 
had  killed  his  man,  and  there  was  apparently  no  defense  to  offer.  Speaking  of  it 
himself,  Reed  said  once  upon  a  time:  "All  I  could  do  was  to  offer  some  evi- 
dence concerning  my  client's  previous  good  character,  and  then  talk.  Tliis  I 
did  to  the  best  of  my  ability.  I  scarcely  knew  what  I  was  going  to  say,  but  while 
on  my  feet,  a  happy  thought  came  to  me.  'Admitting  for  the  sake  of  argument,' 
I  said  to  the  jury,  in  my  most  persuasive  way,  'that  a  Senor  Garcia  did  shoot 
this  man,  where  is  the  evidence  that  Jose  Garcia  is  the  Jose  Garcia  now  on  trial 
in  this  court?'  I  then  went  on  to  declare  that  while  the  prosecution  had  offered 
considerable  testimony  to  the  effect  that  Jose  Garcia  had  done  the  shooting,  it 
had  not  in  the  least  particular  identified  this  Jose  Garcia  with  the  crime.  'Sup- 
pose,' I  asked,  'a  hundred  witnesses  were  to  come  into  court  and  swear  they 
had  seen  John  Smith  shoot  Bill  Brown,  and  then  suppose  a  John  Smith  was  on 
trial  for  his  life,  accused  of  the  crime.  Would  it  not  be  necessary,  gentlemen 
of  the  jury,  to  offer  proof  that  this  John  Smith  was  the  very  John  Smith  who 
had  committed  the  crime?'  It  chanced  to  be  an  unusually  intelligent  jurv," 
added  Mr.  Reed,  "and  saw  the  point  very  quickly,  and  acquitted  my  man.  This 
is  the  way  in  which  I  won  my  first  case  in  court." 

Judge  Senter,  before  whom  the  trial   was  held,  died  several  years  ago. 


THOMAS  FITCH. 


Since  Baker's  death,  which  occurred  nearly  forty  years  ago,  no  voice  has 
ever  stirred  tlie  hearts  of  men  in  the  Pacific  states,  if  indeed,  anywhere,  Hke  that 
of  Thomas  Fitch.  ^Ir.  Fitch  is  in  Salt  Lake  City  now.  in  the  practice  of  law. 
Only  a  short  time  before  this  history  was  completed,  he  sent  us  a  newspaper 
copy  of  a  public  speech  of  his  recently  delivered  there.  It  was  full  of  the  old 
fascination.  This  charming  orator  of  the  American  bar  was  for  a  time  promi- 
nent in  law  and  politics  in  California.  He  was  born  in  New-  York  city  on 
January  27,  1838.  He  came  to  California  from  Wisconsin  in  i860,  stumped 
this  State  for  Lincoln  in  that  year,  and  was  assemblyman  from  El  Dorado 


History  of  the  Bench  and  Bar  of  California.  397 

county  in  1863.  Removing  to  Nevada  he  was  a  member  of  the  constitutional 
convention  of  that  state  in  1864.  He  was  district  attorney  of  Washoe  county, 
Nevada,  1865-67,  and  represented  that  state  in  the  lower  house  of  congress, 
1869-71.  He  lived  and  practiced  law  in  San  Francisco  in  1874-78.  In  the 
latter  year  he  removed  to  Arizona  and  was  a  member  of  the  Arizona  House 
of  Representatives  in  1879.  About  1896  he  removed  from  Arizona  to  his 
native  city  and  left  New  York  for  Salt  Lake  in  1899.  Among  his  public 
addresses  in  San  Francisco,  which  are  masterpieces  of  eloquence,  are  his  re- 
marks to  Sunday  School  scholars  after  their  floral  procession  in  San  Francisco, 
July  4,  1861  ;  address  at  the  dedication  of  Red  Men's  Hall,  June  17,  1875; 
oration,  July  4.  1875;  oration.  Memorial  Da3^  1876;  all  appearing  in  the  local 
press;  and  his  oration  on  Garfield  at  Tombstone,  A.  T.,  in  October,  1881. 

The  famous  lal)or  agitator  of  San  Francisco  (see  the  sketch  of  Henry  E. 
Highton)  had  a  high  appreciation  of  Mr.  Fitch's  oratory.  This  is  said  to  his 
credit,  although  he  did  not  give  credit  to  Mr.  Fitch  for  selections  from  the 
latter's  graceful  speeches.  The  following  in  regard  to  Kearney's  effort,  at 
Faneuil  Hall.  Boston,  in  1878,  will  be  found  both  amusing  and  instructive: 

The  San  Francisco  Daily  Report  of  August  6,  1878,  said  : 

If  any  person  happens  to  have  a  copy  of  a  speech  made  by  Tom  Fitch  at 
a  Republican  meeting  held  at  Union  Hall  in  this  city  in  June,  1876,  to  ratify 
the  nominations  of  Hayes  and  Wheeler,  he  will  find  the  Orion,  Uranus,  and 
Jupiter  pyrotechnics,  verbatim  et  literatim  et  punctuatim.  That  Carl  Browne, 
in  patching  up  Kearney's  speech,  should  have  stolen  bodily  two  such  cele- 
brated bursts  of  eloquence  as  these,  and  sandwiched  them  indiscriminately  in 
with  Kearney's  vulgar  profanity  and  coarse  abuse,  shows  either  that  Kearney's 
two-dollar-and-a-half  speech-writer  is  a  poor  specimen  of  his  class,  or  else  was 
perpetrating  a  joke  that  may  get  him  into  trouble.. 

Upon  wliich  the  Bulletin  of  the  next  day  observed  : 

The  fact  that  Kearney  stole  the  commencement  of  his  oration  at  Faneuil 
Hall  bodily  from  an  address  delivered  by  Colonel  Bob  Ingersoll,  proposing 
James  G.  Blaine  for  the  presidency  at  the  Cincinnati  convention,  has  already  been 
established  in  the  Bulletin.  It  appears,  from  the  Daily  Report,  from  a  speech 
delivered  by  Tom  Fitch  at  the  Hayes  ratification  meeting  held  in  this  city  two 
years  ago,  that  there  were  three  men  speaking  on  the  Faneuil  Hall  platform — 
that  is  to  say,  Ingersoll,  Fitch  and  Kearney — when  as  a  matter  of  fact,  there 
was  only  one  present — that  is  to  say,  Kearney.  Ingersoll  is  at  this  moment  in 
England,  and  the  silver-tongued  Fitch  has  long  since  disappeared  in  the  wilds 
of  Arizona.  It  must  have  required  a  good  deal  of  nerve  to  get  up  before  a 
Boston  audience  and  endeavor  to  palm  off  the  utterances  of  these  orators  for 
his  own,  but  the  California  agitator  seems  to  have  been  equal  to  the  task. 
It  is  fortunate,  however,  that  it  is  not  difficult  to  tell  where  Ingersoll  ends  and 
Kearney  begins;  or  where  Kearney  stops  and  Fitch  takes  up  the  strain. 

That  there  may  be  no  mistake  about  it.  we  reproduce  Kearney's  peroration 
and  tlie  extract  from  Fitch's  speech  above  referred  to.  The  speech  of  Fitch 
was  delivered  at  Union  Hall  on  June  22,  1876.    The  extract  is  as  follows : 


398  History  of  the  Bench  and  Bar  of  California. 

"You  walk  the  earth  at  mid-day,  and  the  vast  expanse  of  the  blue  heavens 
appears  unrelieved  by  the  sparkle  of  a  single  star.  Our  world  seems  the  lonely 
satrap  of  space,  chained  to  the  fiery  chariot  of  the  mighty  sun.  And  yet  we 
know  that  Mars  still  holds  his  course ;  that  Venus  still  whirls  through  space ; 
that  Saturn  circles  amid  his  shining  rings ;  that  Jupiter  and  Uranus  are  flashing 
on  the  confines  of  light;  that  the  blazing  belt  of  Orion,  and  the  guiding  gleam  of 
the  North  Star  are  all  there,  and  that,  as  the  centrifugal  force  of  the  earth 
whirls  us  again  into  the  presence  of  night,  we  shall  once  more  behold  our  com- 
panion worlds  as  thej'  journej'  in  shining  splendor  upon  their  eternal  rounds. 

Kearney,  two  years  afterwards,  at  Faneiiil  Hall,  said  : 

"I  walk  the  earth  at  mid-day.  I  find  a  vast  expanse  of  blue  heavens,  unre- 
lieved by  the  sparkle  of  a  single  star;  but  I  know  that  Mars  still  holds  his 
course,  that  Venus  still  wheels  through  space,  that  Jupiter  and  Uranus  are  flash- 
ing in  the  heavens,  that  the  blazing  belt  of  Orion,  and  the  bright  and  gliding 
gleam  of  the  North  Star  are  all  there,  and  it  is  thus  with  a  movement  of  this 
kind.  We  know  the  workingmen  are  as  true  as  the  stars  in  heaven,  and  will, 
when  called  upon,  exhibit  themselves  in  beauty,  in  majesty  and  in  power." 

The  Alta,  of  August  8,  1878,  said,  editorially: 

Kearney  had  frequently  referred  to  the  fact,  in  mitigation  of  his  ungram- 
matical  utterances,  that  he  could  have  speeches  written  for  "two-and-a-half," 
while  an  honest  man  was  above  price.  If  Dennis  had  paid  anybody  two-and-a- 
half  for  the  speech  delivered  at  Faneuil  Hall,  he  has  a  good  cause  of  action 
against  the  person  who  took  his  money  for  it,  for  he  leaves  the  great  man 
before  the  public  in  the  position  of  a  purloincr  of  other  people's  ideas  and  lan- 
guage— a  mean,  contemptible  literary  thief,  an  impostor,  and  a  trickster — a  crime 
not  differing  in  degree  from  that  practiced  by  midnight  robbers.  The  scribe  who 
prepared  the  speech — presumably  the  "special  correspondent"  who  hawked  around 
to  the  Boston  papers  a  report  of  the  interview  between  Butler  and  Kearney — 
deliberately  stole  the  opening  and  close  from  the  speech  delivered  by  Hon. 
Thomas  Fitch,  in  this  city,  on  the  21st  of  June,  1876,  at  a  meeting  for  the  ratifi- 
cation of  the  nomination  of  Hayes  and  Wheeler.  The  phrase  "lesser  than  Mac- 
beth, yet  greater,"  has  peculiar  significance  in  that  speech,  which  it  lacks  in 
the  adaptation  of  Kearney's  speech-maker,  and  which  would  not  fit  in  a  speech 
made  by  Colonel  Ingersoll,  who  has  been  erroneously  credited  with  the  remarks 
by  the  other  newspapers.  The  Ingersoll  speech  is  a  marvel  of  glowing  eloquence, 
but  to  Tom  Fitch  belongs  the  credit  of  the  apposite  quotation  from  Shakespeare 
and  the  gorgeous  description  of  the  personality  of  the  man  of  the  Republican 
party.  We  present  the  speech  of  Hon.  Thomas  Fitch  and  the  theft  of  Dennis 
Kearney  in  parallel  columns. 

Fitch's  tril)tite  was  in  these  words : 


"But  before  I  speak  of  the  principles  presented,  and  the  candidates  ofifered 
for  our  support,  let  me  give  brief  utterance  to  the  feeling  that  fills  the  hearts 
of  many  thousands  of  earnest  Republicans  who  dwell  in  this  Golden  State, 
and  who — from  among  the  Northern  Sierras,  and  by  the  summer  seas,  from 
treasure-veined  hills  and  waving  plains,  and  evergreen  forests  and  busy  streets — 
send  a  message  of  love  and  greeting  to  him  who  is  'lesser  than  Macbeth,  yet 
greater,'  to  the  fiery,  unconquerable  Rupert  of  debate,  the  chivalrous,  the  white- 
plumed  Navarre  of  the  platform,  the  sagacious  statesman,  the  great-hearted 
leader,  the  gifted,  the  gallant,  the  glorious  Blaine. 

"The  knightly  hearts  that  dwell  bv  this  Western  sea  throb  with  uncalcu- 


History  of  the  Bench  mid  Bar  of  California.  399 

lated  response  to  his  manly  spirit,  and  across  mountains  and  desert  we  bid  them 
take  heart  of  hope,  for  there  shall  come  another  day  when  every  prize  he  has 
earned  shall  be  his  own.  And  we  say  this,  not  that  we  honor  our  chosen 
standard-bearer  less,  but  that  we  love  our  great  chieftain  more." 

And  this  is  Kearney's  : 

"In  order  to  beat  responsive  to  the  popular  will  and  expression  that  went 
up  from  this  meeting  tonight,  when  a  certain  man's  name  was  mentioned,  I 
feel  like  bringing  a  message  of  greeting  and  love  to  a  man  who  is  lesser  than 
Macbeth,  yet  greater,  to  that  fiery  and  incomparable  Rupert  of  debate,  (a  voice, 
"Good  boy,")  to  that  chivalrous  and  white-plumed  Navarre  of  the  rostrum,  the 
gallant,  gifted,  glorious  Butler.  (Great  applause  and  cries  of  "Say  it  again.") 
We  bid  him  take  heart  and  hope,  that  he  will  receive  the  reward  from  the 
workingmen  of  Massachusetts  he  so  justly  merits  for  his  bold  and  out-spoken 
action  in  behalf  of  down-trodden  humanity."  With  the  remark,  "It's  getting  hot, 
Mr.  Chairman,"  Mr.  Kearney  at  this  point  took  ofif  his  coat,  and  loosened  his 
cravat,  amid  the  loud  cheers  and  laughter  of  the  audience.  Continuing,  he 
said :  "I  am  sorry,  friends,  that  we  are  not  rich  enough  to  be  able  to  hire 
Beecher  to  knock  the  bottom  out  of  hell."     (Laughter.) 

The  conclusion  of  Fitch's  speech  was  also  stolen  by  Kearney  and  delivered 
in  Faneuil  Hall  as  his  own  peroration. 

In  September,  1863,  an  editorial  appeared  in  the  Virginia  City  (Nevada) 
Union,  of  which  Mr.  Fitch  was  editor,  sharply  criticizing  the  Enterprise,  of 
that  place,  for  defending  the  action  of  Governor  Seymour,  of  New  York,  in 
addressing  a  multitude  of  rioters  as  "My  friends."  The  Enterprise  rejoined 
with  a  bitter  editorial  attack  on  Mr.  Fitch.  For  this  editorial,  Mr.  Goodman 
was  challenged  by  Mr.  Fitch,  and  accepted  the  challenge.  The  parties  were 
to  meet  in  Six  Mile  Canyon  and  fight  with  navy  revolvers.  Mr.  Fitch  and  his 
seconds  were  on  the  ground  half  an  hour  before  the  time  appointed.  Mr. 
Goodman  and  his  party  were  arrested  while  taking  an  early  breakfast  at  a 
restaurant  in  Virginia  City,  and  this  was  followed  by  the  arrest  on  the  duelling 
ground  of  Mr.  Fitch  and  his  party.  All  were  placed  under  bonds  to  keep 
the  peace  in  the  State  of  Nevada.  The  Enterprise  a  few  days  afterwards 
published  another  personal  assault  on  Mr.  Fitch,  and  the  latter  gentleman 
rejoined  with  an  exceedingly  bitter  personal  attack  on  Mr.  Goodman.  Mr. 
Goodman  thereupon  challenged  Mr.  Fitch  to  meet  him  in  the  State  of  Cali- 
fornia. The  challenge  was  accepted  and  the  parties  met  in  Stampede  Valley, 
Nevada  county,  California,  near  the  State  line.  The  weapons  used  were  navy 
revolvers,  the  distance  ten  paces,  and  the  parties  fired  simultaneously.  The 
bullet  of  Mr.  Fitch  passed  through  the  coat  and  vest  of  Mr.  Goodman  without 
touching  his  skin.  Mr.  Fitch  was  shot  through  the  right  knee,  the  bullet 
grazing  the  bone  but  not  shattering  it.  The  i)arties  afterwards  became  warm 
personal  friends.  It  was  learned  subsequently  that  Mr.  Fitch  was  not  the 
author  of  tlie  original  article  in  the  Union  that  excited  the  ire  of  the  Enterprise, 
and  that  Mr.  Goodman  did  not  write  or  inspire  the  attack  on  Mr.  Fitch.  Both 
gentlemen,  as  editors  of  their  respective  papers,  assumed  the  responsibilitv  for 
articles  written  by  subordinates. 


400  History  of  the  Bench  and  Bar  of  California. 

One  of  the  happiest  phrases  Fitch  ever  threw  off  was  in  a  private  letter  to 
us  in  the  summer  i,.>f  1900.  In  referring-  to  our  effort  to  revive  the  project  to 
build  a  monument  to  Baker  in  Golden  Gate  Park,  San  Francisco.  Mr.  Fitch, 
after  stating  one  of  the  reasons  why  the  work  languished,  said,  "Baker  ought 
to  have  a  great  monument"  (we  thought  the  word  "great,"  so  often  misap- 
])lie(l.  was  in  good  place  here) — "in  Oregon" — (we  had  no  doubt  he  was 
going  to  stay  in  San  Francisco,  but  accepted  Oregon  because  that  was  the  state 
that  sent  him  to  the  senate)  "at  the  mouth  of  the  Columbia"  (now  we  yielded 
to  the  poetic  idea  as  the  writer  rose  superbly)  "on  the  heights  above  Astoria" 
( then  closing  his  fine  conception)  "where  it  could  l)e  seen  and  saluted  by  every 
passing  ship." 

The  words  themselves  are  a  nol)le  memorial :  "Baker  ought  to  have  a 
great  monument — in  Oregon — at  the  mouth  of  the  Columbia — on  the  heights 
above  Astoria — where  it  could  be  seen  and  saluted  by  every  passing  ship." 


F.  P.  TRACY. 


Frederick  P.  Tracy  was  city  attorney  of  San  Francisco  for  some  two  years 
— 1857-59.  There  were  no  regular  terms  then,  the  board  of  supervisors  ap- 
pointing the  incumbent.  He  practiced  law  in  partnership  with  F.  A.  Fabens 
(Fabens  &  Tracy).  There  are  many  of  our  oldest  citizens  who  assigned  him 
to  the  very  first  rank  of  the  early  bar,  but  they  estimated  him  from  his  powers 
as  a  public  speaker.  The  profession  accorded  him  no  such  high  place.  He 
was  a  good  lawyer,  but  not  at  the  front.  He  was  not  trained  for  the  bar, 
and  his  legal  education  was  defective.  He  took  up  the  study  comparatively 
hte  in  life.  Indeed,  he  took  up  the  study  after  he  came  to  this  State,  when 
lie  was  about  thirty  years  old.  He  was  a  strong  man.  but  not  strong  enough 
to  master  a  natural  taste  for  stimulants,  and  for  this  reason  he  turned  away 
from  the  calling  to  which  he  had  been  consecrated  and  wdiich  he  had  followed 
for  some  ten  years,  that  of  a  Methodist  clergyman.  The  spiritual  nature  was 
never  more 'than  temporarily  overthrown.  He  was  an  orator  of  a  high  order. 
He  had  a  large  figure  and  spoke  weighty  words.  He  addressed  the  moral  sense 
of  men.  He  loved  the  great  poets,  too,  and  could  repeat  from  memory  the 
whr»le  of  "The  Lay  of  the  Last  Minstrel."  One  of  the  fathers  of  the  Repub- 
lican party  in  California,  he  was  the  most  notable  "stumper"  for  his  party, 
next  to  Baker,  in  the  campaigns  of  1856  and  i860.  He  went  to  Washington 
City  to  see  Lincoln  inaugurated  in  March,  1861.  He  died  in  the  East  in 
March.  1862,  and  his  remains  were  brought  back  to  San  Francisco,  the  funeral 
obsequies  being  in  old  Piatt's  Hall  on  March  23,  1862.  His  wish,  expressed  in 
writing,  was  carried  out :  "Let  miy  funeral  service  be  conducted  by  a  minister 
of  the  Methodist  church  who  never  apologized  for  slavery." 


History  of  the  Bench  and  Bar  of  California.  401 

Tracy  was  born  in  Windham,  Connecticnt,  and  was  graduated  from 
some  New  England  Methodist  coHege.  He  w^as  about  56  years  of  age  at 
his  death,  in  1862.  He  was  a  CaHfornia  pioneer,  arriving  at  San  Francisco 
in  August,  1849.  ^J^"*  ^^''^  same  steamer  with  John  Currey  and  Annis  Merrill. 
A  daughter  of  Mr.  Tracy  became  the  wife  of  the  veteran  public  school  teacher, 
John  Swett,  who  was  state  school  superintendent  from  January  i,  1863,  to  De- 
cember I,  1867. 

Tracy  left  no  estate,  but  his  many  friends  erected  to  his  memory,  in  Laurel 
Hill,  a  monument  which  is  one  of  the  noblest  objects  which  the  eye  beholds, 
and  which  no  visitor  should  fail  to  look  upon,  wdien  called  for  the  first  time, 
for  whatever  purpose,  to  repair  to  that  famed  spot,  where  the  virtues  of  our 
great  men  are  exhibited  in  marble,  and  their  frailties,  with  tlieir  mortality, 
covered  with  the  blooms  of  earth. 


LAWYERS  SELECTING  JUDGES. 

The  lawyers  of  San  Francisco,  that  is,  229  of  them,  got  together  in  a 
public  hall  in  1879,  to  agree  upon  twelve  men  of  that  bar  for  Judges  of  the 
Superior  Court,  which  court,  by  virtue  of  the  new  constitution  of  that  year, 
was  to  be  organized  in  the  following  January.  The  idea  was  that  the  con- 
ventions of  the  two  great  political  parties,  which  had  not  yet  convened,  would 
follow  the  choice  of  this  meeting  of  the  bar,  nominating  judges  for  the  new 
court. 

Hon.  W.  W.  Cope,  who  had  been  a  Justice  of  the  Supreme  Court  from 
September  20,  1859,  until  the  remodeling  of  the  Court  in  1864,  presided  over 
iiiis  bar  meeting.  (Judge  Cope  was  the  gentleman,  then  living  in  Amador,  who 
defeated  Judge  Terry  for  the  Democratic  nomination  for  Supreme  Judge  in 
September,  '59.) 

There  was  of  course  much  able  and  witty  talk  at  this  gathering.  Some  one 
moved  that  each  person  present  be  assessed  so  much  to  pay  the  cost  of  the  hall 
and  ]3rinting.  Some  one  else  said  that  certain  gentlemen  had  alroad)'  adx'anced 
money  and  it  would  not  be  right  to  include  them  in  the  assessment.  Some  time 
being  wasted  in  the  discussion,  ex-attnrney  general,  Frank  M.  Pixley,  jumped 
up  and  said  nervously,  in  his  loud,  sharp  \'oice,  "Mr.  President,  I  move  that 
two  men  pass  the  hat.  and  that  we  stop  this  G — d  d — d  foolishness."  Henry 
H.  Reid  promptly  seconded  the  motion,  it  was  carried,  and  the  hats  were 
passed,  resulting  in  too  much  money  being  secured,  but  no  provision  was 
made  for  the  surplus. 

As  of  historic  interest  we  give  the  whole  vote  cast  at  the  meeting,  the 
twelve  gentlemen  first  named  being  declared  the  choice  i^f  the  bar  for  SujicriiTr 
Judges : 


402 


History  of  the  Bench  and  Bar  of  California. 


W.  P.  Daingerfield 193 

John  F.  Finn 155 

W.  H.  Fifield 148 

O.  P.  Evans 143 

John  Hunt,  Jr 142 

T.  K.  Wilson 136 

J.  C.  Gary 123 

S.   H.  Dwindle    119 

R.  Y.  Hayne   116 

S.  S.  Wright   115 

T.  W.  Freelon   114 

J.  M.  Allen 107 

Columbus  Bartlett   106 

H.  D.  Scripture 98 

C.  B.  Darwin 87 

D.  L.   Smoot    80 

Robert  Harrison    67 

John     Proffatt    15 

R.  Guy  McGlellan 15 

G.  N.  Mott II 

J.  W.  Harding 11 

P.  B.  Nagle 5 


J.  M.  Seawell 58 

Paul   Neumann    q;6 

Robert  Ferral 45 

John  T.  Humphreys   29 

J.  V.  Coffey 28 

Davis  Louderback   27 

E.  H.  Rixford 25 

Charles   Halsey    24 

T.   H.   Rearden    23 

D.  T.  Sullivan 22 

John  Haynes    21 

James  M.  Taylor 20 

F.  P.  Dann 19 

J.  R.  Brandon 19 

J.  A.  Waymire 19 

H.  L.  Joachimsen    18 

J.  L.  Crittenden 16 

William  Crosby 4 

George  E.  Harpham   4 

D.  J.  Toohy 4 

F.  F.  Taylor   2 

P.  B.  Ladd 2 


Of  the  twelve  lawyers  first  named,  those  who  secured  the  nominations 
of  their  respective  parties  and  were  elected,  were  William  P.  Daingerfield, 
O.  P.  Evans  and  T.  W.  Freelon,  Democrats,  and  T.  K.  Wilson,  J.  C.  Gary, 
John  Hunt,  Jr.,  J.  M.  Allen  and  John  F.  Finn,  Republicans.  The  other  four 
Superior  Judges  elected  at  that  time  were  M.  A.  Edmonds,  Republican,  who 
had  received  no  votes  at  the  bar  meeting,  and  three  Democrats,  Chas.  Halsey, 
Roberts  Ferrell,  and  Jeremiah  F.  Sullivan,  of  whom  the  last  named  received 
no  votes  at  the  bar  meeting.  The  men  who  received  votes  at  that  meeting 
and  who  in  after  years  became  Judges  of  the  Superior  Court,  were  R.  Y. 
Hayne,  J.  M.  Seawell,  J.  V.  Cofifey,  T.  H.  Rearden,  D.  J.  Toohy,  and  James 
A.  Waymire. 


A.  P.  CRITTENDEN. 


Alexander  Parker  Crittenden  was  appointed  to  the  United  States  Military 
Academy  (at  West  Point)  from  Kentucky.  He  w'as  a  cadet  there  from  July 
I,  1832  to  July  31,  1836.  He  was  a  native  of  Kentucky.  He  was  graduated 
on  July  I,  1836,  and  was  promoted  in  the  army  to  second  lieutenant,  First 
Artillery,  on  the  same  date.     He  resigned   September  30,    1836.      He  was 


History  of  the  Bench  and  Bar  of  California.  403 

assistant  engineer  of  the  Baltimore  and  New  York  (Pennsylvania)  Railroad 
in  1836-7,  and  held  the  same  place  on  the  Charleston  and  Augusta  Railroad 
in  1837  and  1838.  He  was  a  counselor  at  law  at  Brazoria,  Texas,  from  1839 
to  1849.  when  lie  came  to  California  and  lived  in  this  State  for  the  remainder 
of  his  life,  except  a  few  years  spent  at  Virginia  City,  Nevada,  in  the  sixties. 
He  was  a  member  of  the  assembly  of  California  at  the  first  session,  1850,  from 
Los  Angeles.  He  arrived  there  a  few  months  Ijcfore  the  first  general  election 
in  1849.  He  determined  to  leave  the  place  and  locate  at  San  Francisco.  He 
was  out  of  money  and  set  out  to  make  the  long  journey  of  nearly  five  hundred 
miles  on  foot.  A  few  miles  from  Los  Angeles  he  was  met  on  the  road  by 
an  okl  friend,  who  had  been  an  army  officer  at  West  Point,  named  Coutts,  who 
now  resided  at  Los  Angeles.  Coutts  took  him  back  to  his  home,  furnished 
him  with  means,  and  Crittenden  was  shortly  afterward  elected  to  the  assembly. 
Then,  instead  of  having  to  walk,  he  traveled  to  Sacramento,  the  State  capital, 
at  the  public  expense,  his  mileage  amounting  (at  eighty  cents  a  mile,  counting 
both  ways)  to  $1136. 

He  is  especially  referred  to  in  our  article  on  the  adoption  of  the  Common 
Law.     He  drafted  many  of  the  statutes  passed  at  the  first  session. 

Removing  to  San  Jose  he  represented  Santa  Clara  county  in  the  assemblv 
in  1852,  and  again  proved  a  useful  member. 

While  he  was  a  cadet  at  West  Point,  he  and  some  other  students  were  dis- 
ciplined for  some  frolic  which  they  indulged  in,  and  were  pursued  by  a  guard 
and  surrounded.  Crittenden  said,  "Let  us  cut  our  way  out ;  that  is  the  military 
wav."  But  his  advice  was  not  followed  and  they  were  all  placed  under  arrest, 
and  after  trial  were  all  expelled.  Crittenden  went  to  Washington  City  and 
sought  the  aid  of  his  distinguished  uncle,  John  J.  Crittenden,  then  United 
States  senator  for  Kentucky,  to  be  restored  to  the  Military  Academy.  His 
uncle  told  him  that  he  was  hardly  on  speaking  terms  with  the  President.  The 
young  man  then  went  himself  to  the  President,  who  was  General  Jackson, 
and  the  President,  after  hearing  his  story  said,  "You  are  the  kind  o{  material 
we  want  in  the  army.  You  go  back  to  West  Point,  but  on  your  way  tarry  a 
day  or  two  at  New  York  city,  and  when  you  get  to  West  Point  there  will  l)e 
an  order  there  to  re-admit  you."  And  so  it  was,  and  Crittenden  went  through 
the  four  years'  course. 

When  Crittenden  returned  to  San  Francisco  from  Virginia  City  in  1866. 
he  formed  a  law  partnership  with  Samuel  ]\1.  Wilson.  The  distinguished  firm 
of  Wilson  &  Crittenden  conducted  a  great  business  until  the  death  of  Mr. 
Crittenden  in  November,  1870. 

On  November  7,  when  Mr.  Crittenden's  death  was  announced  in  the  courts 
of  San  Francisco,  John  W.  Dwindle  made  the  motion  to  adjourn  in  the 
Twelfth  District  Court,  and  paid  an  elociuent  tribute  to  the  memory  of  Mr. 
Crittenden.  He  spoke  of  him  as  one  of  the  ablest  jurists  in  California,  a  firm 
friend,  and  amiable  gentleman.  At  the  conclusion  of  his  remarks  Judge  Mc- 
Kinstry  said  : 


404  History  of  the  Bench  and  Bar  of  California. 

"I  have  known  Mr.  Crittenden  a  great  many  years.  I  have  had  perhaps 
peculiar  opportunities  for  observing  and  admiring  his  integrity  of  purpose,  his 
boldness  of  conception  and  thought,  the  vast  resources  of  his  mind.  To  say  that 
in  this  man  the  elements  were  so  mingled  as  to  form  a  perfect  character  would, 
under  the  circumstances,  be  worse  than  panegyric.  It  would  be  unjust  to  our- 
selves, it  would  be  unworthy  of  him ;  for  no  man  despised  mere  exaggeration 
more  than  he  did.  I  cannot,  however,  but  bear  witness  with  all  who  knew  him, 
that  this  was  an  extraordinary  man.  All  here  were  accustomed  to  his  forensic 
manner.  His  clearness  of  statement  was  so  remarkable  as  that  not  infrequently 
it  rendered  all  argument  unnecessary.  His  matter  was  often  too  important  to 
admit  of  ornamentation,  but  at  times  he  was  eloquent  in  the  very  highest  sense, 
and  he  was  always  forcible  and  effective.  He  disdained  every  tortive  approach 
and  advanced  at  once  the  main  idea  involved  in  an  inquiry ;  accepted  it  in  all 
its  significance  if  possible — and  moulded  it  to  his  purpose.  He  rarely  met  with 
an  adversary  who  was  stronger  than  himself.  He  was  too  magnanimous  to  press 
an  undue  advantage  upon  one  weaker.  For  while  he  was  positive  in  the  asser- 
tion of  his  own  opinion,  he  respected  the  positive  opinions,  honestly  entertained, 
of  those  who  differed  from  him.  His  natural  quickness  and  aptitude  for  reason- 
ing were  rendered  more  acute  by  training  at  the  Military  Academy  at  West 
Point,  whence  he  was  graduated  near  the  head  of  his  class,  and  by  a  long  and 
active  career  in  the  practice  of  law;  so  that  his  inferences  had  become  almost 
demonstrations,  and  the  trenchant  blade  of  his  logic  hewed  its  way  to  a  con- 
clusion with  a  force  which  was  irresistible.  As  a  lawyer,  as  has  been  well 
remarked  by  Mr.  Dwinelle.  he  was  not  so  familiar  with  mere  cases  as  many 
others,  but  his  mind  was  imbued  with  the  philosophy  of  his  profession  as  pre- 
sented in  the  great  principles  which  are  taught  by  the  masters  amdng  the  civil 
and  common-law  writers.  But  profoundly  versed  as  was  Mr.  Crittenden  in 
the  peculiar  lore  of  his  own  profession,  his  acquirements  were  not  limited  to 
its  demands.  It  is  said  by  those  competent  to  judge  that  he  was  deeply  read  in 
the  pure  mathematics,  and  that  he  was  greatly  interested  in  the  progress  of  the 
physical  sciences,  having  far  more  than  a  superficial  knowledge  of  some  of  them. 
To  a  certain  familiarity  with  the  ancient  classics,  he  added  a  proficiency  in  several 
modern  languages,  and  was  generally  and  thoroughly  acquainted  with  the  poetry 
and  polite  literature  of  our  own  tongue.  But  it  was  in  the  hours  of  relaxation 
from  his  labors,  and  when  his  reserve  had  melted  under  the  genial  influence  of  an 
enlightened  social  intercourse,  and  he  gave  way  to  his  gentle,  kindly,  cheerful 
humor,  that  one  fully  recognized  how  much  of  attractiveness,  there  was  in  this 
talented  and  cultivated  man.  Generous  to  the  extreme  there  was  no  sacrifice  he 
refused  in  order  to  subserve  the  interests  of  a  friend.  So  that  while  all  who 
knew  him  admired  the  eminent  jurist  and  the  accomplished  orator,  those  who 
knew  him  best  loved  him  best." 


WILLIAM  T.  WALLACE. 


Hon.  William  T.  Wallace,  a  member  of  the  present  Board  of  Police  Com- 
missioners of  San  Francisco,  and  who  has  been  attorney  general  of  the 
State,  Superior  Judge  of  San  Francisco,  and  Chief  Justice  of  the  State  Su- 
preme Court,  was  born  in  Lexington,  Ky.,  March  22,  1828.  He  was  well- 
connected  and  well-educated,  and  was  admitted  to  the  bar  in  his  native  state 
and  practiced  there  for  a  time.    He  arrived  in  California  in  1850,  and  located 


W  ^%i 

r  .  .  ,  ■, 

■v."?»*La 

r*.  "-■■ 

"*''"w(PP>^^^ 

^^^^^w             H 

^^^^^^^1 

y      J 

^    <#• 

^n 

N-^^pK^^^^^^p^"            '^^ 

^^^^^^^- ----- 

l^m.    r.     I7a//ace 


History  of  the  BencJi  and  Bar  of  California.  405 

at  San  Jose,  where  he  married  a  daughter  of  Hon.  Peter  H.  Burnett,  our  first 
Governor. 

Wallace,  who  long  ago  came  to  he  a  man  of  great  physical  weight  and 
stature,  was  at  that  time  cjuite  tlhn,  and  consumpti\e,  weighing  only  140 
pounds.  Judge  Hester,  district  attorney  of  San  Jose  in  1852,  resigned  to 
take  the  place  of  District  Judge,  and  Wallace  was  appointed  District  Attorney. 
He  traveled  with  the  judge  to  the  county  seats  of  the  four  counties  comprising 
his  district.  He  was  district  attorney  for  one  year  and  went  to  each  county  seat 
six  times.  His  first  suhstantial  success  at  the  practice  was  made  about  1853, 
when  he  induced  the  ojjstinate  administrator  of  a  certain  large  estate  to  pay 
over  to  a  daughter  of  the  deceased,  her  portion  of  the  inheritance.  This  was 
$75,000.  and  she,  the  daughter,  paid  Judge  Wallace  a  fee  of  $15,000.  A 
client  of  Judge  Wallace,  a  prominent  physician  of  San  Jose,  had  married  the 
widow.  The  estate  lay  in  another  county,  the  administrator  would  not  for  a 
long  time  turn  over  the  daughter's  portion,  and  the  County  Judge  declined  to 
make  the  order  usual  in  such  cases.  Judge  Wallace  managed  to  get  the  admin- 
istrator to  pay  over  without  the  aid  of  legal  process. 

He  was  attorney  general  from  January,  1856,  to  January,  1858.  (The 
terms  of  State  officers  were  then  for  two  years. )  He  was  a  Justice  of  the 
Supreme  Court  from  January  10,  1870,  to  January  i,  1880,  being  Chief  Jus- 
tice from  February  24,  1872,  to  January  i,  1880,  a  period  longer  than  that 
served  by  any  other  Chief  Justice,  excepting  the  present  incumbent.  Chief 
Justice  Beatty. 

Judge  Wallace  was  elected  by  the  Democrats  of  San  Francisco  to  the 
assembly,  to  fill  a  vacancy,  at  the  session  of  January-March,  1883.  He  was 
elected  by  the  Democrats  in  the  fall  of  1886  a  judge  of  the  Superior  Court  of 
San  Francisco,  and  served  a  full  term  of  six  years.  He  was  presiding  judge 
of  the  court  for  the  year  1891.  He  was  re-elected  in  the  fall  of  1892  by  the 
Democrats  and  Non- Partisans,  and  served  a  second  term,  ending  December 
31,  1898.  In  1899  Mayor  Phelan  appointed  him  a  member  of  the  first  Board 
of  Police  Commissioners  under  the  charter  of  San  Francisco,  adopted  in  1898. 
He  is  now  ser\'ing  on  that  board.  Judge  Wallace  is  a  member  of  the  Board  of 
Regents  of  the  State  University,  and  his  term  will  expire  in  1902. 

The  ex-Judge  is  a  millionaire  and  has  a  numerous  posterity.  The  well- 
known  San  Francisco  lawyer,  Ryland  B.  Wallace,  is  his  son. 

In  December,  1887,  this  distinguished  man,  then  a  Judge  of  the  Superior 
Court  of  San  Francisco,  gave  us  some  of  his  memories  of  our  early  judges  and 
lawyers.     We  quote  him  as  follows,  from  our  notes  taken  at  that  time: 

Murray  was  unquestionably  the  greatest  man  who  ever  sat  on  our  Supreme 
Bench.  Rut  he  never  studied  any.  Had  he  possessed  the  industry  and  patience 
of  Judge  Field,  he  would  have  become  another  Mansfield  (Mansfield's  family 
name  was  Murray).  He  had  a  good  voice  and  fine  person,  the  portrait  extant 
of  him  being  little  more  than  a  caricature.  He  had  remarkable  alertness  of  mind 
and  would  catch  a  case  with  a  swiftness  and  breadth  of  grasp  which  I  have 
seen  no  other  judge  exhibit.     Without  having  examined  the  transcript  he  would 


406  History  of  the  Bench  and  Bar  of  California. 

yet  be  able  to  correct  counsel  in  statements  of  evidence.  He  would  in  some  way, 
early  in  the  oral  argument,  catch  the  "corner  facts,"  to  which  all  others  in  a 
case  must  bear  more  or  less  fixed  relation,  so  that  when  there  was  any  material 
misstatements  made  by  counsel,  there  was  a  disturbance  sensible  to  his  subtle 
mind. 

His  opinions  were  written  on  the  spur  of  the  moment  with  no  forethought 
or  effort,  often  on  the  flyleaves  of  transcripts.  They  still  are  sound  authority  and 
often  cited. 

Murray  drafted  the  bill  which  passed  the  legislature,  but  which  Governor 
Weller  vetoed,  to  prohibit  gambling.  I  think  he  hoped  thus  to  have  a  barrier 
raised  between  him  and  his  great  vice.  His  bill  made  it  a  felony  to  conduct  a 
faro  bank  either  as  owner  or  employe  (dealer),  while  patrons  of  the  game  were 
only  declared  guilty  of  misdemeanor.  Governor  Weller,  a  man  of  strong  com- 
mon sense,  vetoed  this  bill  in  words  which  I  think  I  can  almost  exactly  recall : 
"This  bill,"  he  said,  "makes  too  great  a  distinction  between  gentlemen  who  sit 
on  opposite  sides  of  the  same  table." 

The  father  of  Charles  T.  Botts  perished  at  the  burning  of  the  theater  in 
Richmond,  Va.,  in  1811.  He  was  one  of  the  counsel  on  the  trial  of  Aaron  Burr, 
and  his  speech  on  the  occasion  shows  the  same  general  cast  of  mind  that  his  son, 
the  California  judge,  possessed.  When  the  latter  was  appointed  Judge  of  the 
Sixth  Judicial  District,  comprising  Sacramento  and  Yolo  counties,  he  called  upon 
Judges  Murray,  Burnett  and  Terry,  of  the  Supreme  Bench,  in  the  chamber  of 
■that  tribunal,  when,  court  having  just  adjourned.  Judge  Botts  was  tendered  by 
the  dignitaries  named,  their  congratulations  on  his  appointment.  These  he  re- 
ceived with  characteristic  self-possession.  "I  will  try  to  do  my  duty,  but  it  is 
quite  likely,"  he  said,  "that  you  gentlemen  will  overrule  me  sometimes.  We 
can't  expect  the  Supreme  Court  to  be  always  right." 

You  remember  Baker's  hit  at  Judge  Botts?  The  Judge  in  the  State  campaign 
of  '58  edited  a  Democratic  paper,  in  which  he  paid  a  great  deal  of  attention  to 
the  Republican  orator,  not  assailing  him  personally,  however.  In  one  of  his 
open  air  speeches,  toward  the  end  of  the  contest.  Baker  took  occasion  to  return 
the  compliments  of  the  tireless  editor  with  interest.  "This  Botts  family,"  he 
said,  among  other  things,  "is  a  great  family.  It  has  great  talents  and  great 
eccentricities.  John  Minor  has  all  the  talents  and  Charles  T.  all  the  eccen- 
tricities." * 

Judge  Botts  was,  at  the  end  of  the  fragmentary  term  for  which  he  was  ap- 
pointed, succeeded  by  Hon.  John  H.  McKune,  who  had  defeated  him  at  the  fall 
election  of  1858.  The  Sacramento  bar  gave  Judge  Botts  a  dinner  on  his  retiring 
from  office,  on  which  occasion  the  thought  was  made  prominent  that  the  fate  of 
a  judge  at  a  popular  election  is  no  criterion  of  his  merit — that  it  is  but  a  doubtful 
compliment  to  say  of  a  man  in  ermine — "He  is  a  popular  judge." 

With  Colonel  E.  D.  Baker  I  was  very  intimate.  My  home  was  at  San  Jose 
while  he  was  at  this  bar,  and  when  I  visited  San  Francisco  I  sometimes  went  to 
Baker's  house  by  his  invitation.  I  was  associated  with  him  in  quite  a  number  of 
cases  in  different  counties,  among  them  the  Peralta  will  case  and  the  Scale  mur- 
der case.  This  latter  was  tried  at  San  Leandro,  then  the  seat  of  justice  of 
Alameda  county. 

Scale  was  a  brother  of  H.  W.  Scale,  and  killed  a  man  named  Shore  in  a 
land  dispute.  Baker,  /ames  A.  McDougall  and  I  defended  Scale  on  an  indict- 
ment for  murder.  Wm.  Van  Vorhees  was  the  district  attorney,  and  associated 
with  him  for  the  prosecution  was  Edward  Stanly,  uncle  of  Judge  Jno.  A. 
Stanl}'.    We  called  him,  as  we  did  Baker,  '"Colonel,' — he  had  not  yet  been  military 


*John  Minor  Botts,  elder  brother  of  Charles  T.,  was  a  Virginian  statesman  of 
distinction,  and  of  the  same  political  faith  as  Baker — first  a  Whig,  and,  after 
that  party  dissolved,  a  Republican. — Editor. 


History  of  the  Bench  and  Bar  of  California.  407 

governor  of  North  Carolina.  Tlie  accused  had  killed  Shore  by  shooting  him 
with  a  pistol,  and  the  deceased  had  struck  and  slightly  wounded  Seale  with  an 
axe.  The  point  was  one  of  time — whether  deceased  used  his  axe  before  or  after 
he  was  shot. 

There  was  but  one  witness  for  the  prosecution,  and  he  testified  that  Shore 
did  not  use  the  axe  until  after  defendant  had  shot  him,  and  then  by  an  ascending 
stroke,  he  having  his  hand  resting,  as  he  was  shot,  upon  the  perpendicular  axe 
handle.  For  the  defense  there  was  also  but  one  witness,  and  he  an  illiterate  man, 
who  testified  that  deceased  stood  by  his  axe  in  the  same  position  as  placed  by  the 
other  witness,  but  that  he  used  the  axe  before  he  was  shot,  raising  it  and  bringing 
it  down  upon  the  defendant.  The  defense  was  enabled  to  show  that  the  hat  of 
the  accused  was  cut  in  front  by  a  sharp  weapon,  as  also  his  forehead. 

Van  Vorhees  opened  and  Stanly  closed  for  the  people.  The  former,  who 
was  an  effective  speaker,  concluded  his  address  to  the  jury  with  the  words: 
"Gentlemen,  if  the  prisoner  is  not  guilty,  the  State  does  not  desire  his  blood." 
Baker  rose  at  once,  and  repeating  these  words,  made  a  most  masterly  speech. 
He  spoke  for  two  hours  and  a  half,  using  these  words  of  the  district  attorney  as 
a  text,  which  by  frequent  and  fervid  repetition,  he  made  to  run  all  through  his 
splendid  address.  All  that  he  said  sprung  from  these  words  and  related  back 
to  them,  reminding  me  now,  as  I  think  of  it,  of  a  beautiful  carpet  in  which  there 
is  one  striking  figure  as  a  center  piece,  and  to  which  all  other  parts  have  rela- 
tion. That  Van  Vorhees  could  have  intended  to  give  Baker  such  a  cue  is  out 
of  the  question,  as  the  two  men  did  not  like  each  other.  The  defendant  was 
found  not  guilty. 

On  this  trial.  Colonel  Stanly  became  so  incensed  at  Baker  that  he  desired 
me  to  bear  to  him  an  unfriendly  message.  The  tragedy  from  which  the  trial 
resulted  occurred  where  two  fields  adjoined,  one  partly  an  open  field,  the  other 
entirely  enclosed.  One  of  Stanly's  questions  was,  "if  a  certain  thing  testified  to 
happened  in  the  open  enclosure."  Baker  asked  the  court  to  have  Stanly  explain 
what  he  meant  by  an  "open  enclosure."  Stanly  was  nettled  by  the  advantage 
taken  of  this  slip  and  made  an  ill-natured  reply.  Once  or  twice  thereafter.  Baker 
made  perhaps  too  fine  objection  to  Stanly's  examination,  and  when  the  trial 
was  ended,  Stanly's  ire  had  mounted  to  a  high  pitch.  But  Judge  Wallace  refused 
to  bear  his  message  to  Baker,  and  reminded  him  that  he  (Stanly)  and  Baker  had 
always  been  close  personal  and  political  friends.     The  matter  went  no  further. 

Baker  always  was  possessed  of  the  idea  that  his  forte  was  military  leader- 
ship.   He  said  that  his  place  was  at  the  head  of  an  army.* 

I  think,  of  course,  with  all  his  friends,  that  he  was  mistaken  in  this.  How 
common  such  an  error  is  !  Baker,  the  brilliant  orator,  envied  the  brawny,  com- 
manding will  of  Broderick,  while  the  latter  deeply  lamented  his  inability  to  talk 
like  Baker. 

As  a  speaker,  I  never  heard  of  Baker's  making  a  failure.  He  couldn't  fail. 
He  had  so  much  knowledge,  such  wide  reading,  the  most  wonderfully  retentive 
memory  I  ever  knew  a  person  to  possess,  and  the  classics,  modern  and  ancient, 
were  an  open  book  to  him.  He  could  make  a  great  speech  impromptu,  and  then 
dictate  it  to  a  reporter  almost  word  for  word. 

You  will  remember  Miss  Annie  A.  Fitzgerald  of  Santa  Clara,  whose  poetical 
effusions  used  to  be  seen  in  the  press  occasionally  in  the  fifties  and  sixties.  On 
a  professional  visit  to  San  Jose,  Baker  once  came  into  my  oflfice,  and  noticing 
some  verses  of  this  lady  on  my  table,  read  them  and  remarked  that  ihcy  wore 


*He  said  the  same  thing  to  the  Rev.  and  Hon.  Samuel  B.  Bell.  "Whatever 
I  may  have  accomplished  as  a  speaker  or  lawyer,"  said  he,  "is  as  nothing  com- 
pared with  my  possibilities  as  a  soldier.  I  have  often  talked  with  eminent  mili- 
tary men— graduates  of  West  Point,  and  I  feel  that  I  know  the  art  of  war  better 
than  any  military  captain  whom  I  have  met." — Editor. 


408  History  of  the  Bench  and  Bar  of  California. 

pretty  and  poetic.  In  allusion  to  a  habit  of  his,  I  suggested  that  he  might  find 
occasion  to  quote  them  in  one  of  his  speeches.  He  said  he  might  do  so.  I  told 
him  to  take  the  slip  along.  "No."  he  said,  "I  know  them."  When  I  learned  that 
he  had  never  seen  the  verses  before,  I  doubted  his  ability  to  repeat  them.  He 
then  as  I  held  the  paper,  repeated  them  word  for  word.  I  forget  the  subject,  but 
I  think  there  were  as  many  as  six  stanzas,  of  four  or  six  lines  each.  Some  five 
or  six  months  after  this,  I  told  the  circumstances  to  Milton  Williams,  a  San 
Jose  attorney,  and  it  so  happened  that  Baker  came  in  while  we  were  yet  talking 
about  him.  He  was  in  a  linen  ulster,  having  just  arrived  by  stage  from  San 
Francisco.  I  spoke  at  once  of  what  I  had  been  telling  Milton  Williams,  and 
Baker  said,  "I  can  repeat  the  verses  now;  give  me  the  first  line."  I  held  the 
printed  slip,  which  all  these  months  had  been  on  my  table,  and  read  the  first 
line,  whereupon  Baker  repeated  the  entire  poem,  word  for  word." 

Baker's  visit  to  San  Jose,  now  referred  to,  was  to  take  part  in  the  case 
of  the  Peralta  will,  before  Judge  Hester,  of  the  District  Court.  I  was  also  asso- 
ciated with  him  in*  support  of  the  will  in  this  case.  We  lost  the  case,  and  an 
incident  of  it  will  furnish  one  of  the  rare  instances  of  Baker's  loss  of  tem- 
per, and  further  serve  to  exhibit  his  wonderful  memory.  On  rising  to  address 
the  jury  he  first  paid  to  Judge  Hester  a  compliment  for  his  fairness  and 
ability.  So  eloquent,  felicitous  and  graceful  was  this  tribute,  that  he  seemed 
to  be  throwing  over  the  shoulders  of  the  Judge  a  garland  of  fresh  flowers.  But, 
after  we  had  lost  the  case  and  were  moving  fo-r  a  new  trial,  the  judge,  in  settling 
the  bill  of  exceptions,  kept  ruling  out  what  we  wanted  in,  and  we  saw  that  our 
motion  for  a  new  trial  would  inevitably  be  denied.  Baker  became  incensed  at 
this,  and,  addressing  the  court,  said:  "Your  Honor,  in  my  address  to  the  jury 
on  the  trial  of  this  case,  I  took  occasion  to  use  these  words."  And  he  then 
repeated  his  fine  encomium  on  the  Judge,  just  as  I  had  heard  him  utter  it  first. 
and  then  added :     "I  desire  to  take  it  all  back — all  back." 

And  in  this  connection,  I  may  say  that  Baker  was  always  circumspect  and 
chaste  in  speech.  I  saw  him  in  so  many  diflerent  situations  and  places,  public 
and  private,  that  any  fault  of  his  in  this  respect  must  have  been  noticed  by  me. 
But  I  never  heard  him  utter  a  sentence  on  any  occasion  that  might  not  have 
been  spoken  to  the  gentlest  lady  in  her  parlor. 

While  depreciating  himself  as  an  orator.  I  think  this  was  simulated.  He  used 
to  tell  me  that  he  thought  he  stood  perhaps  at  the  head  of  the  third-rate  orators 
in  the  United  States.  To  his  mind.  Sergeant  S.  Prentiss  was  the  great  master. 
You  tell  me  that  he  declared  to  the  late  Major  Tompkins  of  this  bar  that  he 
"couldn't  hold  a  candle  to  Prentiss  as  an  orator."  He  said  as  much  to  me,  often. 
Prentiss  is  the  only  orator  of  whom  I  ever  heard  him  break  into  eulogy.  Clay, 
whom  I  regard  as  one  of  the  greatest  of  orators,  didn't  seem  to  have  excited 
Baker's  admiration.  I  have  seen  Clay,  in  my  boyhood,  do  things  on  the  stump 
that  even  now  impress  me  as  wonderful.  Baker's  sentences  were  full  of  beauty, 
and  read  grandly.  Now,  Clay's  words  were  almost  commonplace.  If  you  should 
read  a  report  of  one  of  Clay's  speeches,  you  would  say,  "That  is  just  what  he 
said,  but  what  is  it  that  impressed  me  so  when  he  said  it?"  Clay's  voice  was 
full  of  music  and  penetrating  power,  and  his  strong  personality  overcame  you. 
I  especially  recall  one  scene  of  Clay,  which  I  pictured  to  Baker.  It  was  at  Lex- 
ington, Kentucky,  his  Ashland  home  being  near  by,  and  Clay  having  just  returned 
from  Washington.  He  was  received  by  the  populace  with  most  extravagant 
demonstrations  of  delight — they  had  met  him  on  the  road,  removed  the  horses, 
and  drawn  his  carriage  into  the  city.  When  the  multitude,  hoarse  from  cheering, 
had  become  quiet.  Clay  calmly  surveyed  it  a  moment,  then  taking  out  a  snuff-box 
he  always  carried,  said,  "Fellow  Citizens,  I  believe  I  will  take  a  pinch  of  snuff." 
So  doing,  he  brought  out  a  large  silk  handkerchief,  which  he  used  with  a  loud 
report.  Then,  very  deliberately  at  first,  he  proceeded  to  address  the  throng, 
and  soon  all  were  spell-bound — he  was  making  one  of  those  overpowering  off- 
hand speeches  such  as  only  he  could  make. 


History  of  the  Bench  and  Bar  of  California.  409 

I  said  I  told  this  to  Baker.  He  did  not  appear  to  be  much  surprised;  he 
said,  "That's  like  Clay."  "Mr.  Webster,"  he  observed,  "would  not  have  done  such 
a  thing.  He  had  too  much  good  taste."  Then  he  added,  thoughtfully,  "If  Web- 
ster had  done  such  a  thing,  he  could  never  have  recovered  from  it." 

That  was  just  the  point — Claj'  did  recover  from  it. 

Yes,  Baker  believed  that  Sergeant  S.  Prentiss  was,  beyond  peradventure, 
the  greatest  orator  this  country  ever  produced. 

On  Decenil)cr  8,  1873,  Mr.  Henry  E.  Highton,  of  the  San  Francisco  bar, 
bent  to  a  local  paper  a  letter  signed  "Publicola,"  in  which  he  strongly  nrgecl  the 
election  of  Chief  Justice  Wallace  to  the  United  States  senate.  This  letter 
merits  notice  for  its  discussion  of  two  interesting  points  advanced  against  the 
propriety  of  the  election  of  Judge  Wallace.  These  two  objections  were,  first, 
that  by  reason  of  his  judicial  office  the  judge  was  constitutionally  ineligible; 
and,  second,  that  it  would  be  a  breach  of  propriety  to  transfer  him  from  the 
supreme  bench  to  the  senate.  The  first  point  was  based  on  Section  16,  of 
Article  6,  of  the  State  constitution  :  "The  Justices  of  the  Supreme  Court  shall 
be  ineligilile  to  any  other  office  than  a  judicial  office  during  the  term  for  which 
they  shall  have  been  elected." 

Mr.  Highton  argued  that  United  States  senators  are  federal  officers;  that 
their  qualifications  cannot  be  prescribed  by  the  states;  that  the  federal  consti- 
tution is  exhaustive  and  exclusive  on  the  subject  and  there  can  be  no  valid 
state  legislation  thereon ;  that  the  clause  cjuoted  from  the  State  constitution 
was  designed  simply  to  prevent  judicial  officers  fromi  holding  executive  or 
legislative  state  offices.  He  further  cited  the  case  of  Judge  Trumbull,  of  Illi- 
nois, who  was  elected  a  United  States  senator,  while  on  the  bench,  against  a 
plain  provision  in  the  constitution  of  that  state,  and  who  was  admitted  to  his 
seat. 

As  to  the  propriety  of  transferring  a  judge  to  the  senate,  Mr.  Highton  con- 
tended that  so  far  from  it  being  a  breach  of  propriety,  in  the  case  of  Judge 
Wallace,  there  was  a  peculiar  fitness  in  it.  He  thus  ex])ressed  himself  on  this 
head  : 

"By  the  very  exigency  of  his  position,  he  had  been,  for  some  time  at  least, 
mainly  occupied  in  the  consideration  and  solution  of  matters  of  private  right, 
and  withdrawn  from  all  active  interference  with  the  executive  and  legislative 
branches  of  the  State  government.  What  better  preparation  could  be  devised 
for  useful  membership  in  the  senate  of  the  United  States?  That  body  is  con- 
servative in  its  character,  quasi  judicial  in  the  words  of  Joel  Tiffany,  compelled 
to  reconcile  the  jarring  interests  of  different  states,  the  regulator  of  the  last 
resort  of  our  relations  with  foreign  governments,  which  demand  the  exact  ai)p!i- 
cation  of  the  principles  of  international  law,  and  invested  with  the  highest  judi- 
cial functions  and  powers  in  cases  of  impeachment.  Surely  it  cannot  be  hon- 
estly asserted  that  the  mind  and  training  of  a  lawyer,  the  discriminating  habit 
of  a  judge,  and  the  incorruptibility  of  a  gentleman,  are  necessarily  disqualifica- 
tions for  the  performance  of  these  delicate  and  complicated  duties. 

Mr.  Highton  concluded  by  alluding  to  the  duties  of  the  governor  of  a  state, 
his  relations  to  the  legislature  etc.,  and  declared  that  in  the  candidacy  of  a 


410  History  of  the  Bench  and  Bar  of  California. 

governor  for  the  United  States  senate  there  was  a  positive  indehcacy  which 
was  inexcusable. 


JOSEPH  W.  VVINANS. 

The  late  J.  B.  Townsend  was  very  tiresome  in  trying  his  cases,  and  we 
told  in  our  book  of  1889,  that  upon  one  occasion  he  answered  "ready"  to 
a  case  before  Judge  E.  D.  Wheeler,  of  the  old  Nineteenth  District  Court,  San 
Francisco,  the  Judge,  addressing  the  other  lawyers  present,  said,  "No  other 
case  will  be  reached  today,  gentlemen."  Something  very  like  this  occurred  in 
Judge  R.  F.  Morrison's  District  Court  in  the  same  city  in  1877.  Joseph  W. 
Winans.  of  whom  a  sketch  appears  in  this  History,  was  a  fine  scholar  by 
general  consent,  and  was  by  many  accounted  an  orator.  Many  attorneys  were 
in  court  on  the  occasion  referred  to,  waiting  for  their  cases  to  be  called,  it 
being  law  and  motion  day.  Mr.  Winans'  opportunity  came  first,  and  it  seemed 
that  he  would  never  stop.  He  would  frequently  pause  as  if  about  to  sit  down, 
but  just  as  hope  was  brightest,  he  would  resume.  B.  S.  Brooks  at  length 
arose  and  said  in  his  demure  way,  "Your  Honor,  do  you  think  you  will  be 
able  to  hear  any  other  motions  today?"  His  Honor  smiled  (something  Judge 
Morrison  did  not  often  do,  although  not  a  stern  man  at  all)  and  said,  slowly, 
"Yes,  I  think  I  will." 

Mr.  Winans'  father,  who  almost  became  a  centenarian,  always  lived  in 
New  York  city.  He  w-as  quite  rich  to  the  last,  getting  a  start  in  the  grocery 
business  early  in  life,  and  investing  in  real  estate.  He  put  up  a  row  of  build- 
ings after  he  was  90,  and  superintended  their  construction  himself.  When 
he  was  92  or  93,  he  visited  his  eminent  lawyer  son  in  San  Francisco.  The 
lawyer  w-as  then  over  60,  but  the  old  man  would  refer  to  him  in  conversation 
as  his  favorite  boy.  He  desired  Mr.  Winans  to  break  up  here  and  remove 
with  his  family  to  New  York  city.  "It  would  be  a  costly  move,"  remarked 
the  lawyer.  "How  much  would  it  cost?''  asked  the  father.  The  answer  was, 
"To  break  up  here  entirely,  and  take  my  family  and  library  and  effects  to 
New  York  city,  and  get  settled  there,  would  cost  probably  ten  thousand  dol- 
lars, father."    "I  will  let  you  have  it,  Joseph,"  said  the  father. 

Mr.  Winans  really  entertained  the  proposition  for  some  weeks,  then  relin- 
quished it.  The  old  man  outlived  his  "boy"  two  years.  Our  bar  leader  died 
in  San  Francisco  in  1887,  aged  66.  His  father  died  in  New  York  in  1889, 
aged  96,  and  leaving  an  estate  worth  two  millions  of  dollars.  If  the  dates  had 
been  reversed,  the  cultured  lawyer  would  probably  have  gone  to  New  York, 
indeed,  and  to  the  classic  and  romantic  lands  of  which  he  wrote,  and  have 
fully  gratified  his  taste  for  art. 

Mr.  Winans  was  not  only  a  great  buyer  of  books,  but  he  spent  a  little 
fortune  in  the  binding  of  them.    He  showed  great  nicety  in  this  matter.    And 


History  of  the  Bench  and  Bar  of  California.  411 

this  brings  to  mind  some  clever  words  by  Irving  Browne,  editor  of  the  Albany 
(New  York)  Laiv  Journal,  written  in  1885.  No  man  enjoyed  them  more 
than  Mr.  Winans.     They  now  follow  : 

The  Binding  of  Books. — To  make  the  books  suggestive  of  the  contents : 
Thus,  as  to  colors :  One  might  appropriately  dress  military  treatises  in  red, 
theological  in  blue,  gastronomical  in  claret  or  salmon ;  books  on  magic  in 
black ;  a  history  of  pugilism  in  blue-black,  instructions  for  actors  and  singers 
in  yellow,  and  guide-books  and  travels  in  orange.  One  might  bind  Lamb  in 
pea-green;  the  History  of  the  Friends  in  drab;  of  the  Popes  in  scarlet;  and 
Cicero  de  Scnectute  in  gray;  while  Magna  Charta  should  always  be  preserved 
in  violet ;  an  account  of  the  Crimean  \\"ar  in  Russia,  a  history  of  the  Barbary 
v^tates  in  Morocco,  accounts  of  the  intestinal  convulsions  in  vellum,  works  or 
Arboriculture  in  tree-calf;  Bacon  in  hog-skin,  biographies  of  celebrated  women 
in  muslin,  statistics  of  the  lumber  trade  in  boards;  a  description  of  Saxony 
in  sheep ;  and  all  love  tales  in  plain  calf  with  clasps ;  criminal  trials  should  be 
in  full  gilt,  and  accounts  of  famous  sculptors  in  marbled  side  and  edges.  Any 
history  of  the  Baptists  should  not  have  sprinkled  edges.  All  books  relating 
to  defective  vision  should  be  blind-tooled,  and  books  about  the  deaf  and  dumb 
should  be  in  quiet  colors." 


ARCHIBALD  C.  PEACHY. 


It  has  never  been  known  to  more  than  a  very  few  persons — and,  indeed, 
it  is  not  easy  of  belief — that  David  S.  Terry  once  refused  to  accept  a  chal- 
lenge to  fight  a  duel,  sent  him  by  one  whose  station  in  life  warranted  its  accept- 
ance. But  he  did  decline  to  fight  Archibald  C.  Peachy.  It  was  early  in  1879, 
when  the  last  constitutional  convention,  of  which  Terry  was  a  member,  was 
in  session  at  Sacramento.  There  was  no  correspondence  on  the  subject. 
Judge  Terry,  when  he  received  the  hostile  message,  simply  told  the  bearer 
that  he  would  not  entertain  it,  because  Mr.  Peachy  had  become  nearly  blind. 
Mr.  Peachy  sent  him  word  that  he  could  see  as  well  as  he  cared  to,  but  nothing 
further  came  of  it.  The  parties  were  friends,  but  Terry,  in  conversation  with 
a  number  of  gentlemen,  had  dropped  a  remark,  half  jocular,  touching  Peachy's 
private  life,  which  even  a  sensational  newspaper  could  hardly  afford  to  print. 

Mr.  Peachy  had  been  a  member  of  the  great  pioneer  law  firm  of  Plalleck, 
Peachy  &  Billings.  He  was  well  off.  He  was  a  very  able  man,  and  a  fine- 
looking  one — tall,  straight,  proud,  dressing  elegantly  and  tastefully,  carrying 
a  cane  and  wearing  large  gold-rimmed  eye-glasses.  He  was  a  Virginian,  born 
of  an  old  aristocratic  family  at  Williamsburg,  October  8,  1820.  He  came 
to  California  in  1849,  arriving  at  San  Francisco  April  ist.  In  1852,  April 
5th,  he  fought  a  duel  with  James  Blair  at  the  Presidio.     It  was  bloodless. 


412  Historv  of  the  Bench  and  Bar  of  California. 

Air.  P'eachy  was  a  member  of  the  assembly  in  1852.  He  was  in  the  senate  at 
the  sessions  of  i860  and  1862,  and  was  chairman  of  important  committees. 
His  old  law  firm  owned  Montgomery  Block,  and  held  the  property  down  to 
the  year  1872,  when  the  partnership  was  dissolved  by  the  death  of  General 
Halleck.  On  January  i,  1874,  Mr.  Peachy  sold  his  one-third  interest  in  Mont- 
gomery Block  to  General  Halleck's  widow  for  $72,500.  He  died  on  April 
17-    1883. 


B.  F.  WASHINGTON. 

B.  F.  Washington  died  at  San  Francisco  January  22.  1872.  He  was  born 
in  Jefferson  county,  Virginia,  in  1820,  w^as  admitted  to  the  bar  in  Virginia, 
and  practiced  there  some  years.  He  came  to  California  in  1850,  and  in  that 
year  was  elected  the  first  recorder  or  police  judge  of  Sacramento  city.  At 
the  end  of  his  term  he  resumed  law  practice  in  Sacramento.  In  1852  he 
became  editor  and  part  proprietor  of  the  Democratic  State  Journal  at  Sacra- 
mento. He  became  also  part  owner  of  the  Tinies  and  Transcrif^t  in  the  same 
city.  He  fought  his  duel  with  Washburn  when  he  was  editing  that  paper. 
Washington  was  collector  of  the  port  of  San  Francisco  under  President 
Buchanan,  t 857- 1860.  He  was  editor  of  the  San  Francisco  Examiner  from 
June.  1863.  until  his  last  illness,  six  weeks  before  his  death.  In  1868  he  was 
a  member  of  the  Board  of  Tide  Land  Commissioners  appointed  by  Governor 
Haight,  his  term  lasting  four  years.  He  left  two  sons  and  two  daughters, 
who  are  still  living.  He  was  a  large  man,  over  six  feet  in  height.  He  had 
decided  gifts  as  an  orator  and  a  poet.  His  death  occurred  when  he  was  fifty- 
two  years  old,  January  22,  1872. 

The  duel  with  Washburn  ( C.  A.),  who  was  editor  of  the  Alta-California, 
took  place  on  the  San  Jose  road  near  the  bay  shore  on  the  morning  of  March 
2 1  St,  1854.  The  weapons  were  rifles,  distance  fifty  paces.  The  seconds  of 
Washburn  were  Benjamin  S.  Li])pincott  and  George  Wilkes.  Those  of  Wash- 
ington were  Phil.  T.  Herbert  and  J.  Watson.  At  the  first  fire,  owing  to  some 
misunderstanding  in  regard  to  gi\-ing  the  word,  only  Washburn  fired.  Wash- 
ington having  handed  his  weapon  to  one  of  his  seconds,  who  in  his  excite- 
ment, fired  it  in  the  air.  On  the  second  attempt  Washburn's  piece  was  acci- 
dentally discharged  in  the  ground.  They  fired  again  witliout  either  being 
injured,  Washington's  Ijullet  passing  through  Washburn's  hat.  .V  fourth 
exchange  of  shots  was  had  without  harm,  but  the  weapons  were  loaded  again, 
and  now,  on  the  fifth  exchange,  both  parties  fired  simultaneously.  \\^ash- 
ington  was  unhurt,  but  Washburn  had  the  point  of  his  shoulder-blade  shat- 
tered, the  ball  lodging  in  his  back.  It  was  a  serious  wound,  but  he  recov- 
ered. He  became  United  States  minister  to  F'araguay,  by  appointment  of 
President  Lincoln. 


History  of  the  Bench  and  Bar  of  California.  413 

EDWARD  J.  PRINGLE. 

Mr.  Pringle.  of  whom  a  notice  appears  elsewhere  in  this  History,  before 
commencing  practice  spent  a  year  travehng  over  Europe,  with  the  purpose  of 
illustrating  past  and  future  reading. 

He  carried  a  letter  of  introduction  from  Professor  C.  C.  Felton,  of  Cam- 
bridge, to  Mr.  John  Forster,  the  editor  of  the  London  Bxauiiner,  who  invited 
him  to  a  dinner,  which  was  e\er  memorable  to  him.  The  party  consisted  of 
Carlyle,  Dickens,  Ralph  Waldo  Emerson,  Forster  and  himself.  Carlyle  did 
nearly  all  the  talking  and  found  ready  listeners.  After  dinner  Carlyle  turned 
around  to  the  fire-place,  put  up  his  feet  against  the  chimney  in  true  American 
style,  and  smoked  a  long  clay  pipe.  He  talked  about  the  pseudo  reformers — 
''kicking  up  tranquility;'  as  he  phrased  it — in  Ireland.  He  was  very  bitter 
against  the  Irish  agitators,  and  talked  so  much  about  the  musket  as  being  the 
best  cure  for  the  complaint  that  Dickens  laughed,  and  called  it  musket  wor- 
ship. The  great  American  philosopher  listened  to  Carlyle  with  much  interest 
and  spoke  but  little.  Emerson  and  Carlyle  not  only  had  the  kinship  of  genius, 
Ijut  were  warm  personal  friends.  Some  years  later,  in  welcoming  some  new 
triumph  of  Emerson's  brain,  Carlyle  exclaimed:  "Here  comes  our  friend 
Emerson  with  news  from  the  Empyrean."  Dickens,  who  took  advantage  of 
the  lulls  in  Carlyle's  talk,  told  of  the  efforts  he  was  making  with  Miss  Curdett 
Coutts  to  send  the  abandoned  women  of  London  to  the  colonies.  He  ex- 
pressed great  surprise  that  the  prospect  of  leading  honest,  comfortable  lives 
as  wives  in  the  colonies  failed  to  induce  them  to  tiy  from  the  misery  of  the 
London  streets,  whose  glare  and  glitter  seemed  to  hold  them  in  permanent 
fascination. 

Some  years  before  his  death,  Mr.  Pringle  told  us  of  many  events  of  great 
historical  interest  in  European  history.  In  the  years  1847  ^^'^^^  1848  began 
the  great  political  revolutions.  Mr.  Pringle  saw  Louis  Philippe  at  the 
Tuileries  during  his  last  fete  days,  in  July,  1847.  ^"  ^'""^  spring  of  1848  the 
rising  political  storm  on  the  continent  inflamed  the  Chartists  in  England, 
whose  threatened  demonstration  in  London  in  April.  1848.  caused  widespread 
uneasiness.  Mr.  Pringle  ran  over  from  Paris  to  see  the  row.  but  the  loyalty 
of  the  people  of  England  rose  with  the  occasion.  It  was  interesting  to  see 
the  great  actress  of  the  day,  Rachel,  in  the  two  counter  tides.  Mr.  Pringle 
saw  her  called  out  in  Paris  to  sing  the  "Marseillaise."  kneeling  to  the  tricolor 
in  a  perfect  storm  of  republican  shouts,  and  he  saw  her  called  out  in  London 
to  sing  "God  Save  the  Queen'  in  a  tempest  of  loyal  frenzy. 

He  carried  letters  to  Switzerland  from  Professor  Agassiz.  One  of  the 
letters  was  to  an  innkeeper  on  the  high  Alps,  where  Agassiz  had  spent  some 
seasons  in  marking  the  course  of  the  glaciers.  The  party  of  young  men, 
four  in  num])er — one  of  whom  was  a  cousin  of  Ralph  Waldo  Emerson — 
were  delighted  with  the  hospitalities  of  the  host  and  his  ])retty  daughters. 


414  History  of  the  Bench  and  Bar  of  California. 

Some  years  after  it  transpired  that  the  liost  had  selected  these  pretty  daugh- 
ters (?)  to  add  to  the  charms  of  his  house.  They  had  been  carrying  on,  for 
many  years,  robberies  and  murders  of  their  guests.  Under  the  floor,  where 
our  little  party  had  been  so  agreeably  entertained,  were  the  bones  of  many 
travelers — the  recollection  of  whose  fate  brings  to  mind  the  crimes  of  the 
Bender  family  of  Kansas.  Agassiz,  it  will  be  remembered,  was  born  in 
Switzerland.  To  his  letter  to  the  Alpine  innkeeper  Mr.  Pringle,  no  doubt, 
owed  his  life. 

A  very  interesting  case  may  be  mentioned  in  which  Mr.  Pringle  won  a 
signal  triumph,  that  of  Montgomery  vs.  Bevans,  decided  by  Judge  Field  in 
the  United  States  Circuit  Court.  Montgomery,  after  whom  Montgomery 
street,  San  Francisco,  was  named,  was  commander  of  the  United  States  sloop 
of  war  Portsmouth,  which  entered  that  harbor  in  1846,  in  which  year  Mont- 
gomery took  possession  of  the  town  in  the  name  of  the  United  States.  Under 
his  command  were  two  grown  sons,  whom  he  dispatched  to  Sutter's  Fort  in 
a  small  boat  by  way  of  the  Sacramento  River,  accompanied  by  some  sailors 
and  carrying  with  them  a  considerable  sum  of  money  to  pay  off  soldiers  at 
the  fort.  They  never  reached  their  destination  and  never  returned,  and  never 
since  have  been  heard  from;  and  their  fate  is  still  shrouded  in  profound  mys- 
tery. A  Mexican  grant  for  which  they  had  applied  was  issued  to  them  just 
after  their  departure  up  the  Sacramento.  Commodore  Montgomery,  as  the 
heir-at-law  of  his  two  sons,  sued  Bevans  to  dispossess  him  from  the  land 
granted.  Bevans  held  under  a  second  grant  issued  to  him,  on  the  theory  that 
the  Montgomery  boys  were  dead  when  the  first  grant  was  issued.  This 
theory  Mr.  Pringle  successfully  upheld,  and  his  client  prevailed. 

Mr.  Pringle's  knowledge  of  the  law  was  the  product  of  long  and  patient 
study.  He  was  a  man  of  broad  scholarship,  pure  and  exact  in  his  expression, 
and  knightly  in  his  bearing,  both  in  and  out  of  court.  As  was  said  of  Coke : 
"No  legal  question  could  arise  wdiich  he  could  not  illustrate  out  of  the  stores 
of  his  learning,"  and  like  that  great  apostle  of  the  law  he  delighted  in  good 
clothes,  well  worn,  agreeing  with  Sir  Edward  that  the  outward  neatness  of 
our  bodies  might  be  a  monitor  of  purity  to  our  souls.  He  possessed  excellent 
literary  taste  and  was  a  critical  judge  of  the  fine  arts.  Pie  was  not  the  victirn 
of  any  vice,  and  enjoyed  the  blessing  of  health  to  a  remarkable  degree. 

THE  EDITOR. 

San  Francisco,  Cal. 


THE  MEN  OF  THE 
^^  FIRST  ERA  ^^ 


ujb  &  dfe  tSb  i&  &(&£&&  t^- 


HISTORY  of  the 
BENCH  and  BAR 
of  CALIFORNIA 


MEN  of  the  FIRST  ERA 


HALL  McAllister  and  his  line. 

He  was  not  the  ablest  in  all  respects,  but  he 
united  more  of  the  essential  qualities  of  the 
great  lawyer  than  any  of  his  competitors. 
Their  variable  radiance  which  now  and  then 
dimmed  his  steady  light,  only  served  to  show 
that  the  prolonged  sunshine  is  better  than 
flashes   of   lightning. 

The  tide  of  his  practice  knew  no  ebb,  from 
its  first  swell  in  the  middle  of  the  century  to 
the  end  of  his  life  in  1888,  and  it  had  an  ex- 
ceptionally extended  range.  His  indefatiga- 
ble industry  in  preparation,  his  patience  in 
the  elucidation  of  intricate  facts,  the  remarka- 
bly thorough  way  in  which  he  tried  his  whole 
case,  and  the  well-known  fact  that  he  was,  as 
we  may  express  it,  the  lawyers'  lawyer — be- 
ing ni'^st  consulted  by  other  attorneys  and  by 
the  bench — these  distinctions  lifted  him  to  the 
first  place  among  the  advanced  few. 

No  less  a  man  than  Reuben  H.  Lloyd,  in  the 
course  of  testimony  which  he  was  giving  on 
the  witness-stand  some  years  before  McAllis- 
ter's death,  observed  that,  in  the  matter  con- 
cerning which  he  was  then  being  interrogated, 
he  had  taken  the  advice  of  Hall  McAllister 
and  that  it  was  his  habit  to  advise  with  him 
in   matters  affecting  him    (Lloyd)    personally. 

E.  D.  Sawyer,  who  had  been  a  District 
Judge,  in  addressing  a  jury  in  the  old  Twelfth 
District  Court,  April  21,  1875,  took  occasion 
to  remark  that  he  only  knew  of  one  lawyer 
who  was  equally  good  in  all  kinds  of  cases, 
and  that  was  Hall  McAllister. 

John  Garber,  who  has  succeeded  to  first 
place — that  is,  who,  while  he  is  not  equally 
good  in  all  kinds  of  cases,  is  yet  primus  inter 
pares  by  general  confession — said  very  finely 
of  McAllister  at  the  latter's  death  : 


"I  have  good  reason  to  know  the  man,  for 
I  was  either  with  or  against  him  in  many  im- 
portant cases,  and  had  excellent  opportunity 
to  know  and  appreciate  his  varied  accomplish- 
ments. He  was  capable  of  infinite  labor  and 
was  always  equipped  for  every  emergency.  His 
intellectual  capabilities  knew  no  limit.  His 
extensive  reading  and  broad  culture  prepared 
him  to  illustrate,  in  a  pleasing  manner,  any 
subject  which  presented  itself.  He,  indeed, 
was  a  man  who  adorned  every  subject  he 
touched.  He  was  in  love  with  his  profession, 
and  to  it  he  gave  his  entire  life  and  energy. 
Both  in  private  and  professional  life  he  was 
kind-hearted,  affable,  and  a  most  genial  and 
charming  companion." 

Some  enterprising  dealer  in  that  line,  aware 
of  the  prime  place  held  by  McAllister  in  the 
mind  and  heart  of  the  bar,  issued,  a  year  or 
so  before  the  great  lawyer's  death,  a  very 
large  engraved  portrait  of  him,  which  he  took 
around  to  the  various  law  offices  in  San  Fran- 
cisco for  sale.  The  portrait  is  to  be  seen  on 
the  walls  of  prominent  attorneys  today,  and 
formed  part  of  the  office  effects  of  leading 
lawyers  who  died  after  McAllister  did — Creed 
Haymond,  for  instance.  The  favor  with 
which  the  portrait  was  received  was  such  as 
has  rarely  been  accorded  to  the  likeness  of  a 
living  man. 

Matthew  Hall  McAllister,  the  father  of 
Hall  McAllister,  was  born  in  Savannah.  Ga., 
November  26,  1800.  As  he  was  the  father, 
so  was  he  the  son  of  a  distinguished  lawyer. 
His  ancestors  emigrated  from  Scotland.  Af- 
ter graduating  from  Princeton  College,  he 
prepared  himself  for  the  bar,  to  which  he 
was  admitted  in  Savannah.  He  there  fol- 
lowed the  profession  for  twenty-nine  years. 
During  the  administration  of  John  Quincy 
Adams  he  was  LInited  States  attorney  for 
the  Southern  District  of  Georgia.     His  father. 


418 


History  of  the  Bench  and  Bar  of  California. 


Matthew  McAllister,  had  held  the  same  office 
under  Washington.  Judge  McAllister  was 
for  many  years  one  of  the  most  prominent 
public  men  in  the  Southern  Empire  State. 
Always  a  strong  Democrat,  he .  yet  opposed 
with  vigor  the  attempts  at  nullification  in  1832. 
He  participated  in  the  fiery  debates  of  that 
period,  and  threw  all  the  weight  of  his  influ- 
ence and  example  in  favor  of  the*  Union. 
For  quite  a  number  of  years  he  represented 
Savannah  in  the  legislature— first  in  the  lower, 
later  in   the  higher  branch. 

In  1845  he  was  the  Democratic  nominee  for 
Governor  of  Georgia,  and  was  defeated.  In 
1848  he  was  a  delegate  to  the  Democratic  Na- 
tional Convention  which  nominated  General 
Cass  for  President.  In  1850  he  removed  to 
California.  He  was  then  fifty  years  old,  an 
age  far  exceeding  that  of  the  average  Areo- 
naut  of  that  day.  His  son  Hall  had  preceded 
him  and  had  become  established  in  law  prac- 
tice in  San  Francisco.  Judge  McAllister  nrac- 
ticed  law  with  great  success  until  he  went  on 
the  federal  bench.  He  paid  a  visit  to  Georgia 
in  1853.  He  found  the  legislature  in  session 
and  about  to  elect  a  United  States  senator. 
The  Whigs  predominated  and  prevailed,  but 
Judge  McAllister,  although  he  had  fixed  his 
residence  permanently  on  the  Pacific,  received 
the  Democratic  nomination  and  his  full  party 
vote  for  senator.  In  1855  the  Judge  was  ap- 
pointed by  President  Pierce  the  first  United 
States  Circuit  Judge  for  California.  His  judi- 
cial opinions  were  reported  in  one  volume  by 
his  son.   Cutler. 

In  1862  Judge  McAllister  resigned  his  place 
on  the  bench,  having,  at  the  age  of  sixty-two, 
greatly  failed  in  health.  He  died  three  years 
later.  His  wife  survived  him  some  ten  years 
and  died  in  New  York  city.  He  had  pros- 
pered in  business  and  left  a  fine  estate,  con- 
sisting chiefly  of  improved  city  real  estate, 
embracing  among  other  parcels  the  property 
on  Montgomery  street,  adjoining  on  the  north 
Sherman's  building.  His  mental  powers  gave 
way  before  he  left  the  bench,  but  up  to  a  year 
or  so  of  his  resignation,  he  was  a  strong  man 
in  mind  and  body.  To  quote  Mr.  H.  E. 
Highton,  who  wrote  of  him  at  the  time  of 
his  death,  "He  possessed  in  happy  combination 
the  shrewd  practical  sense,  the  keen  and 
analytical  power,  and  the  strong  moral  feeling 
which  characterized  his  Scottish  ancestry,  and 
the  glowing  imagination  and  the  chivalrous 
honor,  which  grow  out  of  aristocratic  systems 
and  ripen   under  tropical   skies.     His  learning 


was  both  extensive  and  varied;  his  style, 
whether  in  speaking  or  writing,  was  rich  and 
clear,  his  language  apt  and  precise.  His  man- 
ners were  of  the  old  school — so  gentle  and  so 
courtly  that  they  won  for  him  affection  and 
connnanded    respect." 

In  the  Eighth  Volume  of  Howard's  United 
States  Supreme  Court  Reports  may  be  found 
the  case  of  Kennedy  vs.  the  Georgia  State 
Bank,  argued  by  Judge  ]\IcAllister,  and  in 
which  he  overthrew  the  giant  Webster.  \n- 
othcr  of  his  unfading  laurels  was  an  opinion 
of  his  while  on  the  bench,  which  was  for- 
mally adopted  by  the  United  States  Supreme 
Court. 

Judge  McAllister's  sons  were  Ward  McAl- 
lister, of  New  York  city  (of  the  immortal 
"Four  Hundred");  Hall  McAllister;  Cutler 
McAllister,  Hall's  San  Francisco  law  partner, 
who  died  while  on  a  visit  to  Florida  in  1879; 
Julian,  a  General  in  the  United  States  army, 
who  died  a  few  years  after  Cutler,  and  Rev.  F. 
M.  McAllister,  an  Episcopal  clergj'man,  who 
was  the  first  rector  of  the  Church  of  the  Ad- 
vent in   San  Francisco. 

As  a  lawyer.  Judge  McAllister  long  sur- 
vived in  his  son  Hall,  of  lasting  fame.  His 
descendants  are  many,  including  the  second 
Hall  McAllister,  son  of  the  first  Hall,  and 
Elliott  McAllister,  son  of  Cutler,  both  now  at 
the  San  Francisco  bar.  His  mind  is  stamped 
on  the  jurisprudence  of  the  State  and  Na- 
tion, and  his  honored  name  will  live  for  gen- 
erations. 

Hall  Mc.'Mlistcr  was  born  in  Georgia,  in 
1826.  He  arrived  in  San  Francisco  in  June, 
1849,  a  year  before  his  father  came,  and  by 
way  of  the  Straits  of  Magellan  and  Valpa- 
raiso. He  took  his  place  at  this  bar  in  August 
of  that  year,  a  novice  among  experienced  men. 
He  was  a  wary  observer,  in  love  with  his 
calling,  and  entered  the  lists  with  that  reso- 
lute purpose  which  if  stubbornly  adhered  to, 
rarely  fails  to  bring  to  the  legal  practi- 
tioner a  fair  measure  of  success. 

Tliat  period  of  probation  from  which  law- 
yers— even  those  of  the  brightest  parts  and 
promise — seldom  find  exemption,  was  with 
Hall  McAllister  exceptionally  brief.  Several 
favourable  circumstances  conspired  with  his 
native  bent  and  energy  of  character  to  cut 
his  probation  short,  and  to  launch  him  ausni- 
ciously  into  the  full  tide  of  practice.  Of  an 
honorable  and  talented  family,  courted  by 
society,    enjoying    the    affectionate    help    of    a 


History  of  the  Bench  and  Bar  of  California. 


419 


father  distinguished  in  his  own  profession, 
anxious  and  able  to  assist  and  advance  him; 
of  fine  person,  robust  health,  vigorous  mind 
and  a  fixed  ambition,  he  stepped  into  the  arena 
of  professional  life  with  the  air  of  one  who 
feels  he  has  a  hold  upon  the  future,  and  with 
the  almost  absolute  assurance  of  success.  It 
is  most  true  that  he  owed  much  to  fortuit- 
ous circumstances ;  much  to  paternal  prompt- 
ings and  guidance,  "which  nursed  the  tender 
thought  to  reason,  and  on  reason  build  re- 
solve— that  column  of  true  majesty  in  man;" 
but  it  is  just  as  true  that  even  without  such 
aids  he  was  born  to  be  what  he  became;  one 
of  the  few  unchallenged  leaders  of  a  large 
and  able  bar.  He  never  knew  what  it  was 
to  be  poor,  or  without  friends,  although  he 
never  wielded  great  wealth.  But  even  if 
he  had  set  forth  upon  his  brilliant  career 
without  the  advantages  of  competency,  friend- 
ship and  a  liberal  education,  he  would  surely 
have  arrived  at  the  desired  goal  by  slower 
marches  but  in  good  season.  If  we  attribute 
his  auspicious  entry  into  professional  life 
chiefly  to  good  fortune,  we  must  give  him 
credit  for  the  unsurpassed  zeal  and  industry 
which  distinguished  his  progress.  He  might 
have  builded  on  his  father's  fame,  but  in- 
stead thereof  he  laid  his  own  foundations, 
and  the  superstructure  which  he  erected  was 
entirely  his  own.  He  had  a  more  vigorous 
and  comprehensive  legal  mind  than  his  father 
possessed. 

Mr.  McAllister  had  a  large,  square  face,  an 
unusual  proportion  of  it  below  the  eyes;  a 
forehead  neither  full  nor  high,  and  lower  than 
the  average  of  men  of  ability,  with  no  cor- 
rugations to  betray  the  earnest  study  he  con- 
centrated upon  his  causes  ;•  a  head  thick 
through  and  noticeable  chiefly  for  its  peculiar 
and  irregular  shape;  the  whole  suggesting  the 
seat  of  a  practical  mind,  highly  endowed  with 
the  powers  of  analysis  and  conclusion.  His 
large  and  heavy  frame  lent  to  him  the  aspect 
of  solidity  and  power,  but  his  movement  of 
body,  notably  lively  for  a  man  of  his  stature, 
militated  somewhat  against  this  impression. 
This  alertness  of  movement  corresponded 
with  the  action  of  his  mind;  and,  like  the 
latter,  never  ran  into  haste.  Thoroughness 
and  dispatch  exercised  joint  and  harmonious 
control  over  his  whole  being. 

In  the  trial  of  a  cause  his  manner  was  ad- 
mirable. He  was  cautious,  but  caution  never 
fettered  him.  He  was  rapid,  but  was  never 
carried   beyond   his   object.      One   of  his   most 


noticeable  habits  was  to  take  down  with  his 
own  hand  all  the  evidence  of  witnesses.  He 
was  eternally  writing.  St.  Augustine  said 
of  that  "most  learned  of  the  Romans,"  Mar- 
cus Terentius  Varro,  that  he  had  read  so 
much  that  we  must  feel  astonished  that  he 
found  time  to  write  anything;  and  he  wrote 
so  much  that  we  can  scarcely  believe  that 
any  olie  could  find  time  to  read  all  that  he 
had  composed.  It  may  be  said  of  McAllister, 
that  he  read  so  much,  it  seems  hardly  possible 
he  could  write  much ;  yet  it  would  engross 
the  time  of  almost  any  person  to  read,  not 
what  he  composed,  but  what  he  wrote  down 
in  court.  What  he  wrote  would  hardly  prove 
as  entertaining  as  the  critical,  philosophical, 
and  other  treatises  of  Varro,  for  what  dropped 
from  his  pen  was  testimony.  This,  however 
interesting  to  him  as  bearing  on  his  cause, 
would  be  dry,  cold  and  barren  enough  to 
others. 

This  habit  of  taking  down  testimony,  al- 
though the  shorthand  reporter  is  doing  the 
same  task  more  accurately,  is  very  advanta- 
geous to  an  advocate.  And  it  loses  half  its 
benefit  when  done  by  proxy,  for  the  evidence 
is  then  less  impressed  upon  the  advocate's 
mind.  This  duty  is  generally  shirked,  be- 
cause it  is  hard  work,  and  is  unjustly  regarded 
as  merely  manual.  Successful  lawyers  usu- 
ally turn  aside  from  the  clerical  details  of 
their  business.  In  McAllister  this  habit  of 
which  we  speak  was  in  keeping  with  his  gen- 
eral industry. 

McAllister  sat  usually  facing  the  jury,  and 
rarely  rising  from  his  chair.  His  table  was 
covered  with  books  and  papers,  and  a  boy 
was  generally  waiting  to  make  fresh  drafts 
upon  his  well-stocked  library.  The  court- 
room was  for  him  a  place  of  earnest  work. 
From  the  beginning  to  the  end  of  the  trial, 
he  was  writing,  reading,  questioning,  object- 
ing, argumg,  appealing.  The  observer  was 
constantly  impressed  with  his  industry  and 
watchfulness.  P>ut  from  the  court-room  he 
turned  playfully  away  and  would  walk  along 
the  corridors  of  the  City  Hall,  and  even  on  the 
streets,  with  his  arm  on  some  brother  law- 
yer's shoulder. 

In  eliciting  testimony,  McAllister  exhausted 
the  information  without  trying  the  patience 
of  the  witness.  He  never  bored  or  insulted. 
He  never  played  the  tyrant  over  a  timid  wit- 
ness, and  never  led  a  rash  one  to  his  un- 
doing, just  for  the  love  of  the  thing.  He 
never  figured  in  any  of  the  discreditable  scenes 


History  of  the  Bench  and  Bar  of  California. 


in  which  lawyers  and  witnesses  grapple  in 
wordy  combat. 

He  was  never  fined  by  a  court.  McAllister, 
like  every  thoroughly  trained  lawyer,  was 
politic,  and  therefore  polite — alike  courteous 
to  court,  counsel,  jury  and  witness.  To  coun- 
sel as.sociated  with  him  in  the  trial  of  a  cause 
he  was  uniformly  deferential,  but  would  not 
play  second  fiddle.  He  always  led  his  side. 
He  was  not  troubled  with  the  idea,  which 
haunts  so  many  legal  small-fry,  that  to  be 
respectful  to  an  adversary  is  to  succumb  to 
him,  or  that  to  listen  decently  to  a  postulate 
is  to  admit  its  soundness.  He  never  sneered 
at  a  proposition,  and  never  stated  one  dog- 
matically. He  met  the  tyro  with  his  hesi- 
tating step,  and  the  veteran  with  his  measured 
stride    with    the    same   air   of   respect. 

With  all  his  dispatch,  it  was  yet  in  the  full- 
ness of  time,  and,  with  a  clear  comprehen- 
sion of  his  cause,  that  McAllister  rose  to 
address  his  familiar  and  favorite  auditory — 
the  jury.  He  was  now  in  the  house  of  his 
friends,  and  in  speech  and  manner  he  showed 
that  he  was  conscious  of  it.  Having  omitted 
nothing  as  regarded  introduction  of  evidence, 
so  now  he  left  nothing  unsaid  which  the  jury 
should  hear.  They  had  vvitnessed  his  pa- 
tient management,  his  shrewd  generalship,  the 
evidences  of  his  careful  preparation,  and  if, 
when  he  rose  before  them,  they  had  not  al- 
ready recognized  the  fact  that  he  knew  his 
case  to  the  utmost  details,  he  soon  convinced 
them  of  it.  They  appreciated  his  address  to 
their  reason,  admired  his  methodical  arrange- 
ment of  facts,  and  found  entertainment  in 
his  argument.  Without  betraying  any  effort 
to  subject  them  to  any  personal  influence;  al- 
ways respectful  without  being  patronizing; 
ever  earnest,  but  never  inflamed;  fluent,  yet 
not  verbose ;  easy  in  manner,  yet  a  stranger 
to  dramatic  effect,  he  challenged  respect  fo*- 
himself,  even  when  he  failed  to  elicit  sympa- 
thy for  his  cause.  His  voice  and  physique, 
as  well  as  the  cast  of  his  mind,  were  more 
suited  to  the  argumentative  than  the  pathetic 
style.  .-\t  times,  however,  in  capital  cases, 
he  approached  eloquence,  drawing  on  the 
classics  to  give  point  and  polish  to  his  ap- 
peals. In  quoting  Shakespeare  and  the  Bible 
he  was  quite  happy.  His  elocutionary  powers 
belonged  neither  to  the  first  nor  the  second 
order.  Nothing  could  be  said  for  his  gestic- 
ulation ;  his  metaphors  were  few  and  not 
striking,  and,  as  to  apostrophe,  that  perfec*: 
flower  of  Baker's  oratory,  he  rarely  called  't 
to  his  aid. 


We  said  this  bar  leader  had  no  specialty. 
Great  lawyers  are  often  distinguished  for 
specialties;  too  often  the  public  assign  them 
to  specialties,  when,  in  truth,  they  have  none. 
McAllister  never  suffered  from  this  popular 
pi'opensity.  Not  only  had  he  no  specialty, 
but  the  fact  was  ackncnvledged  by  all. 
Whether  his  case  involved  land  titles,  inher- 
itance, patent  rights,  private  franchises,  per- 
sonal liberty,  human  life,  or  constitutional 
law.  he  was  equal   to  the  occasion. 

.\s  a  pleader — a  writer  of  pleadings — Mc- 
.Allister  was  careful  and  correct,  evincing  an 
intimate  acquaintance  with  English  forms  and 
precedents.  Although  he  probably  did  more 
work  than  any  member  of  the  California  bar, 
there  was  no  one  who  took  things  easier,  or 
whom  work  hurt  less.  He  owed  this  in  a 
great  measure  to  his  powers  of  endurance — a 
splendid  auxiliary  to  close  mental  applica- 
tion— and  to  his  habit  of  investigating  and 
methodizing  at  the  same  time.  He  was  full 
of  life  and  energy,  had  naturally  a  high  tem- 
per, which  he  kept  under  good  control,  seemed 
to  have  schooled  himself  to  be  slow  to  anger, 
and  was  not  combative. 

He  had  one  habit,  which  some  commend  and 
some  condemn — that  of  interjecting  into  his 
arguments  doggerel  of  his  own  manufacture. 
Perhaps  it  ought  not  to  be  censured,  because 
he  generally  turned  it  to  account.  It  was  at 
least  better  than  punning,  and  an  advocate 
perchance  often  indulges  in  pleasantry  of  some 
kind  to  cause  a  laugh  and  give  surcease  from 
the  monotony  of  argument. 

"A   little   nonsense   now   and    then. 
Is  relished  by  the  wisest  men." 

It  may  be  said  of  McAllister's  poetry,  that 
it  was  more  pleising  to  the  car  when  spoken 
l)y  its  author  in  court  than  it  would  be  to 
the  eye  if  in  ])rint.  At  any  rate,  we  shall  not 
print  any  of  it.  Occasionally  he  deserved 
punishment  for  his  temerity  in  this  line — 
or  rather  in  these  lines.  In  his  argument  in 
the  case  of  the  Hibernia  Savings  and  Loan 
Society  vs.  Mahoney  ct  al..  Fourth  District 
Court,  1877,  he  let  go  some  verses  on  which 
issue  was  joined  by  the  opposing  counsel, 
Judge  Delos  Lake.  The  latter,  recalling  the 
stereotyped  expression,  "more  truth  than 
poetry,"  declared  that  his  adversary's  verses 
contained  "more  poetry  than  truth,"  and 
added  that  "that  was  not  saying  anything  for 
the  poetry." 

Among  this  advocate's  minor  resources  was 
an    unfailing   vein   of   humor,   not   noteworthy 


History  of  the  Bench  and  Bar  of  California. 


421 


for  its  richness,  yd  not  to  be  omitted  in  this 
sketch.  On  one  occasion  he  was  called  at 
the  eleventh  hour  into  a  case  in  which  he 
had  a  colleague  who  was  well  prepared. 
While  the  latter  was  examining  a  witness, 
his  memorandum  of  authorities  fell  under 
McAllister's  eye,  and  was  soon  copied  on  a 
fresh  sheet  of  paper,  and,  in  a  short  time,  a 
messenger  laid  the  books  on  the  table.  The 
time  for  argument  arriving,  McAllister's  col- 
league called  on  him  to  open,  which  he  did 
by  reading  from  his  own  books  his  asso- 
ciate's authorities.  In  closing,  he  said  his 
associate  would  supplement  what  he  had  said 
by  further  argument.  The  associate  arose, 
with  serious  front,  and  observed,  poor  man ! 
that  he  had'  intended  to  address  ^he  court, 
but  that  Mr.  AlcAllister  had  covered  the 
ground  so  thoroughly  that  he  deemed  it  un- 
necessary  to   add  anything. 

A  certain  lame  lawyer  had  a  certain  lame 
client.  The  two  resembled  each  other  strong- 
ly in  their  awkward  gait  and  clumsy  locomo- 
tion. The  litigant,  while  looking  for  his  at- 
torney on  the  street  one  day,  hobbled  up  to 
McAllister    and    asked :       "Have     you      seen 

Lawyer    — going    along    this    way?"      "I 

never  saw  him  going  along  any  other  way," 
was  the  reply. 

Among  the  more  important  of  the  law 
causes  in  which  McAllister  won  renown  wor- 
thy of  especial  note  was  that  of  Tompkins 
vs.  Mahoney.  tried  in  San  Francisco  in  the 
year  1865.  The  plaintiff,  a  lawyer,  recovered 
judgment  against  the  defendant  for  some 
$30,000,  including  interest  for  legal  services 
rendered  during  a  period  of  several  years. 
McAllister  was  his  attorney,  and  his  excel- 
lent address  to  the  jury  so  pleased  his  client 
that  the  latter  declared,  in  his  enthusiasm, 
that  he  would  have  given  one-half  of  the 
amount  of  the  verdict  for  a  verbatim  copy 
of  the  .speech.  (TItc  courts  had  no  official 
stenographers  at  that  time.) 

Mr.  McAllister  married  a  lady  of  rare  ac- 
complishments, a  daughter  of  Samuel  Her- 
man, notary  public,  and  raised  a  large  fam- 
ily. His  widow  survived  him  a  few  years. 
He  owned  a  city  residence,  a  beautiful  sum- 
mer home  in  Marin  county,  and  was  in  com- 
fortable circumstances.  Reference  to  his  fam- 
ily recalls  a  scene  which  occurred  in  the  early 
days  in  the  United  States  Circuit  Court,  of 
which  tribunal  Hall's  father  was  judge.  Hall's 
brother.  Cutler  McAllister,  was  clerk,  and 
Hall      McAllister     himself     the     chief     prac- 


titioner. It  happened  one  day,  that  as  Mc- 
Allister was  presenting  an  ex  parte  motion, 
no  one  beinf  in  the  courtroom  but  the  father 
and  the  two  sons — judge,  clerk  and  counselor 
— J.  J.  Papy,  a  well  known  attorney,  now 
deceased,  having  business  in  the  court,  opened 
the  courtroom  door,  and,  after  a  hasty  glance, 
was  about  to  withdraw,  when  the  judge  said: 
"Come  in,  Mr.  Papy."  The  latter  bowed  his 
acknowledgement  to  the  bench,  and  said : 
"Your  Honor  will  pardon  me;  I  hate  to  in- 
trude into  a  family  meeting."  The  punctilious 
Mr.  Papy  then  silently  stole  away,  and  the 
argument  was  resumed. 

McAllister's  name  ran  through  eighty  vol- 
umes of  Supreme  Court  Reports,  beginning 
with  the  case  of  Payne  vs.  Pacific  Mail 
Steamship  Company,  in  Volume  i.  He  ac- 
quired a  competency,  but  he  continued  his 
work  to  the  last,  as  might  one  who  felt  the 
sharp  spur  of  want. 

McAllister  broke  down  suddenly  in  body 
and  mind,  in  the  summer  of  1888.  The  physi- 
cians said  the  trouble  was  impoverishment 
of  blood,  caused  by  overwork.  He  passed 
several  months  in  Europe,  returning  in  No- 
vember, and  died  at  his  country  residence  near 
San  Rafael,  on  December  2,  1888,  aged  62 
years.  He  was  buried  with  the  rites  of  the 
Episcopal  church.  He  left  a  widow,  as  al- 
ready stated,  and  three  daughters,  one  of  whom 
was  the  second  wife  of  Hon.  Frank  G.  New- 
lands,  and  a  son.  The  latter  is  the  present 
Hall  McAlli.ster,  of  San  Francisco,  who  is  fol- 
lowing his  father's  profession. 


STEPHEN   J.    FIELD. 

We  come  to  the  most  distinguished  name 
in  the  judicial  history  of  the  State,  and  one 
that  is  illustrious  in  the  magistracy  of  the 
nation.  There  were  always  those  who  did 
not  like  the  man.  but  never  one  who  refused 
to  bow  to  the  pre-eminent  lawyer  and  imperial 
judge. 

The  Rev.  David  D.  Field,  an  eminent  New 
England  divine,  who  died  about  the  year 
1862,  lived  to  see  five  sons  attain  enviable 
distinction.  These  were  David  Dudley  Field, 
the  groat  bar  leader  of  New  York,  Cyrus 
West  Field,  who  brought  Europe  and  Ameri- 
ca to  speaking  terms  through  the  electric  cur- 
rent ;  Jonathan  Field,  once  president  of  the 
Massachusetts  State  senate;  Stephen  Johnson 
Field,  the  jurist,  and  Henry  Martyn  Field, 
who,  like  his  father,  reached  eminence  in  the 
pulpit. 


422 


History  of  the  Bench  and  Bar  of  California. 


"One  o'er  another  rose  their  heads  in  tiers. 
Steps  for  their  father's  honorable  years." 

The  stock  is  Puritan. 

Stephen  J.  Field  was  born  in  Haddam, 
Connecticut,  November  4,  1816.  His  grand- 
fathers on  both  sides  were  American  army 
officers  in  the  revolution. 

Rev.  Dr.  Field  removed  from  Connecticut 
to  Massachusetts  and  settled  at  Stockbridge, 
when  his  son  Stephen  was  but  three  years 
old.  Ten  years  later,  Stephen  accepted  an  in- 
vitation from  Rev.  Mr.  Brewer  and  wife, 
missionaries  to  the  Levant,  to  go  with  them  to 
the  scene  of  their  future  labors.  Mrs.  Brewer 
was  his  sister,  and  her  invitation  being  empha- 
sized by  the  advice  of  his  father,  and  his  eldest 
brother,  he  sailed  with  the  missionary  couple 
December  10,  1829.  and  arrived  at  Smyrna 
February  5,  1830.  He  was  abroad  two  and  a 
half  years,  passing  his  time  at  Smyrna,  Athens 
and  other  famous  cities  which  had  survived 
buried  empires,  visiting  also  the  islands  of 
the  Grecian  Archipelago.  He  acquired  the 
modern  Greek,  and  a  fair  knowledge  of  the 
French,  Italian  and  Turkish  tongues.  His 
brother,  David,  had  advised  him  to  this 
course  with  a  view  to  seeking  a  chair  in  an 
American  university  as  professor  of  Oriental 
Languages  and  Literature.  He  was  in  Smyrna 
when  the  city  was  visited  by  a  fearful  plague 
in    1831. 

Having  been  thrown  in  contact  while  abroad 
with  people  of  many  religious  creeds  and 
faiths,  all  of  which  presented  to  his  eye  evi- 
dences of  sincerity  in  belief,  as  well  as  of 
humanity  and  true  devotion,  the  b.oy  returned 
home  with  his  hold  upon  Puritanism  entirely 
loosened.  He  had  been  taught,  for  so  his 
parents  thoroughly  believed,  that  the  New 
England  Puritans  had  the  only  true  religion. 
He  now  concluded  that  there  was  other  food 
for  the  soul,  and  ever  afterwards  hi.s  early 
conclusion  being  strengthened  by  mature  re- 
flection, he  showed  a  lofty  tolerance  in  re- 
ligious matters.  In  tracing  his  career  and 
noting  the  exceptional  activity,  courage  and 
persistence  which  marked  it,  it  would  seen. 
proper  to  call  him  a  greater  man,  if  not  a 
greater  lawyer,  than  his  eminent  elder  brother. 
He  struggled  against  greater  disadvantages, 
he  overcame  more  stupendous  obstacles,  he 
accomplished  more  difficult  undertakings,  he 
rose  to  a  more  enduring  fame. 

Entering  Williams  College  in  1833,  he  wc. 
the  highest  honors,  delivering  the  Greek  ora- 
tion in  the  junior  exhibition,  and  the  valedic- 


tory, upon  his  graduation  in  1837.  I"  the  fol- 
lowing spring  he  became  a  law  student  m 
his  brother  David's  office  in  New  York  ci:v 
He  was  admitted  to  practice  in  1841,  the  period 
of  his  study  in  law  having  been  broken  for 
a  time  by  his  service  as  a  teacher  in  the  Al- 
bany Female  Academy.  As  soon  as  admittca 
to  the  bar  his  brother  received  him  as  a  part- 
ner, and  they  had  a  cordial  business  and 
brotherly   union    of   seven   years. 

When  the  Mexican  War  broke  out,  David 
Dudley  Field  strongly  advised  his  young 
brother  to  go  to  California.  He,  David,  had 
made  himself  familiar  with  the  geography 
and  even  the  political  history  of  the  Pacific 
coast,  and  had  contributed  to  the  Democra'ic 
Review  two  articles  on  the  "Oregon  Ques- 
tion." 

The  young  lawyer  determined  to  first  make 
a  visit  to  Europe.  So,  dissolving  the  partner- 
ship, he  crossed  the  Atlantic  in  June,  1848.  In 
December  of  that  year,  in  Paris,  he  heard  of 
the  discovery  of  gold  in  California.  This 
country  had  come  under  the  American  flag. 
He  at  once  concluded  to  visit  it,  but  remained 
in  Europe,  sightseeing,  for  about  nine  months, 
then  returned  to  New  York.  It  was  now  Oc- 
tober I,  1849,  and  six  weeks  later  he  sailed 
for  California  by  way  of  Panama.  He  ar- 
rived in  San  Francisco  December  28,  1849, 
just  in  time  to  be  a  pioneer.  He  got  into 
lodgings  with  three  dollars  left  him,  two  of 
which  he  was  compelled  to  part  with  the  ne.xi 
morning  for  the  cheapest  breakfast  he  ciuM 
order. 

He  was  buoj-ant  in  spirit,  although  out  of 
money,  and  in  a  new  land,  far  distant  from 
his  home  and  kindred.  The  day  v/as  beau- 
tiful—in very  midwinter — the  air  was  exhil- 
arating, everybody  was  active  and  hapi)y,  and 
the  common  salutation  was  "What  a  glorious 
country !"  Passing  along  Clay  street,  when 
near  Kearny,  he  noticed  a  sign  in  very  large 
letters,  "Jonathan  D.  Stevenson.  Gold  dust 
Bought  and  Sold  Here."  "Hello,  here  is  good 
luck !"  he  thought.  His  brother  David  had 
given  him  a  promissory  note  which  he  held 
against  Colonel  Stevenson  for  $350,  stating 
that  he  understood  the  Colonel  had  become 
rich  in  California,  and  if  this  were  true,  to 
ask  him  to  pay  the  note.  Taking  the  pi'xe 
of  paper  from  his  otherwise  empty  pocket,  he 
entered  the  place  where  gold  dust  was  bough!. 
and  sold.  He  was  recognized  and  cordially 
received.  In  talking  about  the  "glorious 
country,"    the    Colonel    let    fall    the    welcome 


History  of  the  Bench  and  Bar  of  California. 


423 


information  that  he  had  made  $200,000.  The 
note  was  presented  and  paid  with  interest  in 
full— $440. 

San  Francisco  was  given  a  short  tritl.  In 
less  than  three  weeks  from  the  time  he  landed 
here  the  joung  lawyer  took  the  stcunl-oat 
for  Sacramento.  His  objective  point  was  the 
new  town  of  Vernon,  a  little  further  up  the 
river  at  which  point  he  had  been  advised 
to  enter  upon  an  active  practice  of  law  by 
Simmons,  Hutchinson  &  Co.,  of  San  Fran- 
cisco, to  which  firm  he  had  brought  letters  of 
introduction.  Finding  that  Vernon  consisted 
of  a  single  shanty  surrounded  by  a  vast  ex- 
panse of  water — the  country  was  then  flooded 
— he  pushed  on  to  Nye's  Ranch,  near  the 
mouth  of  the  Feather  river.  There  he  found 
a  bustling  camp  of  several  hundred  men,  and 
concluded  to  pitch  his  tent.  An  auctioneer 
was  selling  town  lots.  The  lawyer  asked  him 
the  price.  The  lots  were  80x160.  the  same 
as  in  Sacramento,  and  the  uniform  price  was 
$250.  "Suppose  a  man  puts  his  name  down 
and  afterwards  does  not  want  the  lots?"  asked 
the  lawyer.  "Oh,  you  need  not  take  them  if 
you  don't  want  them,"  replied  the  auctioneer. 
"I  took  him  at  his  word,"  said  the  newcomer 
afterwards ;  "I  wrote  my  name  down  for 
sixty-five  lots  aggregating  in  price  of  $16,250." 

He  had  only  about  $20  left  of  what  Colonel 
Stevenson  had  paid  him,  but  he  became  the 
lion  of  the  hour,  the  capitalist  of  the  com- 
munity. Tlie  proprietors  of  the  land  who 
had  just  bought  it  from  General  Sutter,  but 
who  had  not  yet  got  their  deed,  showed  the 
newly  arrived  capitalist  marked  attention. 
Two  of  their  number  were  French  gentlemen, 
and  finding  their  new  acquaintance  spoke 
their  tongue,  they  became  the  more  appre- 
ciative. 

From  the  beauty  and  hcalthfulness  of  the 
spot,  and  its  adniiraljlc  location,  our  far- 
seeing  friend  was  satisfied  as  to  its  future. 
Messieurs  Covillaud  and  Sicard,  the  two 
French  gentlemen  named,  became  his  friends 
and  clients,  and  he  wrote  for  them  the  first 
deed  or  law  paper  ever  recorded  afifecting  prop- 
erty in  Marysville.  General  Sutter,  then  lin- 
ing at  Hock  Farm,  six  miles  distant,  signed 
this  deed,  which  conveyed  several  leagues  of 
land. 

So  the  attorney  went  to  work  at  once.  On 
the  next  day  after  his  arrival,  in  the  evening, 
a  public  meeting  was  held  to  decide  if  a  town 
government  should  be  established.  It  was 
c'ecided   in    the   affirmative   after   a   speech   by 


Field,  predicting  a  brilliant  future  for  the 
place. 

Who  named  Marysville?  On  January  18, 
1S50,  the  people  of  the  new  town,  then  called 
by  some  Nye's  Ranch,  by  others  Yubaville, 
established  a  town  government  electing  an 
Ayuntamiento,  or  Town  Council,  first  and 
second  alcaldes  and  a  marshal.  Judge  Field 
was  elected  first  alcalde  by  a  majority  of 
nine  votes.  It  was  urged  against  him  that 
he  was  a  newcomer.  He  had  been  there  only 
three  days,  while  his  opponent  had  been  there 
nine  days.  In  the  evening  •  another  public 
meeting  was  held  to  hear  the  result  of  the 
election.  It  was  resolved  at  that  gathering 
to  give  the  new  town  a  name.  The  compet- 
ing cognomens  were  "Yubafield,"  Yubaville," 
and  "Circumdoro."  But  at  the  last  moment 
an  old  man  arose,  and  said  that  there  was 
an  American  lady  in  the  place,  the  wife  of 
one  of  the  proprietors  (the  French  gentle- 
man, Covillaud).  Her  name  was  Mary,  and 
in  her  honor  he  moved  that  the  place  be  called 
"Marysville."  This  was  at  once  agreed  to 
amid  hearty  cheers,  and  with  not  one  dissent- 
ing voice.  Mrs.  Covillaud  was  one  of  the 
survivors  of  the  Donner  party,  who  endured 
such  frightful  sufferings  in  the  Sierra  Ne- 
vada mountains,   in  the  winter  of   1846-7. 

As  the  constitution  of  the  State  had  gone 
into  effect,  although  the  State  had  not  been 
admitted  into  the  Union,  to  make  his  calling 
and  election  sure,  the  new  alcalde  obtained 
from  Governor  Burnett  a  commission  as  jus- 
tice of  the  peace,  the  two  offices  amounting  to 
one  and  the  same  thing  in  jurisdiction,  ex- 
cept that  the  duties  of  the  justice  of  the  peace 
were  accurately  defined. 

A  few  weeks  after  his  arrival  at  Marysville, 
he  was  very  glad  that  he  had  put  his  name 
down  on  that  auctioneer's  list  for  sixty-five 
lots — and  he  was  very  glad  that  the  auctioneer 
had  not  treated  it  as  a  joke.  Within  ninety 
days  he  had  sold  over  $25,000  worth  of  real 
estate,  and  had  a  good  majority  of  his  lots 
left.  Fie  had  brought  from  San  Francisco 
frame  and  zinc  houses,  which  yielded  a  rental 
of  over  $1000  a  month.  His  fees  as 
alcalde  were  large,  and  at  one  time,  not  to 
mention  his  real  estate,  he  had  $14,000  in 
gold  dust  of  his  own  in  his  safe.  About  that 
time  he  employed  as  a  clerk  George  C.  Gor- 
'ham,  then  17  years  of  age.  He  found  Gor- 
liam  a  f|uick  youth  and  a  trusty  agent,  and 
was    always    his    faithful    friend. 

Leaving   the   office   of   alcalde,   Judge    Field 


424 


History  of  the  Bench  and  Bar  of  Colifoniia. 


had  just  entered  actively  upon  the  practice 
of  the  law  when  he  was  nominated  for  the 
assembly.  He  had  had  a  rupture  with  the 
District  Judge,  William  R.  Turner,  which 
has  no  parallel  in  controversies  between 
bench  and  bar,  and  which  will  be  noticed 
hereafter.  As  a  candidate  for  the  legislature 
he  openly  announced  that  his  purpose  was  to 
reform  the  judiciary,  and  to  have  Judge  Tur- 
ner removed  from  the  bench  of  that  district. 
Judge  Turner,  in  return,  threatened  to  drive 
the  would-be  lawmaker  into  the  Yuba  river. 
Yuba  county  then  embraced,  in  addition  to  its 
present  area,  the  present  counties  of  Ne- 
vada and  Sierra.  Many  interesting  incidents 
of  this  animated  canvass  are  preserved.  At 
one  place  in  the  mines  he  arrived  on  the  scene 
just  in  time  to  save  an  innocent  man  from 
being  hanged.  He  treated  the  l}-nch  jury 
many  times  to  the  best  wines  and  cigars  that 
could  be  got,  and  appealed  to  their  hearts 
while    tickling    their    appetities. 

He  was  elected  by  a  large  majority.  Im- 
mediately he  commenced  the  preparation  of 
a  bill  relating  to  the  judiciary.  The  legis- 
lature met  at  San  Jose  the  first  Monday  in 
January,  1851.  Judge  Field  was  appointed 
on  the  judiciary  committee.  To  this  commit- 
tee he  submitted  his  bill,  and  they  approving 
it,  it  became  a  law.  Its  essential  features  have 
ever  since  been  preserved,  and  are  now  to  be 
found  in  our  Code  of  Civil  Procedure.  Be- 
sides creating  eleven  judicial  districts,  it  de- 
fined the  jurisdiction  and  powers  of  every 
judicial  officer  in  the  State,  from  Supreme 
Judge  down  to  Justice  of  the  Peace.  He  also 
introduced  a  bill  dividing  the  county  of  Trin- 
ity, and  creating  that  of  Klamath,  and  an- 
other bill  dividing  the  county  of  Yuba  and  cre- 
ating that  of  Nevada,  and  not  forgetting  his 
old  enemy  (and  the  sequel  will  show  what 
cause  he  had  to  be  mindful  of  him),  he  se- 
cured the  formation  of  a  new  Eighth  Dis- 
trict out  of  Trinity  and  Klamath,  and  had  the 
counties  of  Yuba,  Sutter  and  Nevada  united 
into  a  Tenth  Judicial  District.  So  Jud^e 
Turner,,  as  Judge  of  the  Eighth  Judicial  Dis- 
trict, had  to  change  his  territorial  base,  and  go 
to  Trinity  and  Klamath,  then  sparsely  settled 
counties.  Not  yet  feeling  that  he  had  got 
even  with  his  old  foe,  he  presented  petitions 
from  many  of  the  leading  citizens  of  Yuba 
county,  praying  Turner's  impeachment  and 
removal  from  office,  on  the  grounds  of  in- 
competency, ignorance,  and  arbitrary  and 
tyrannical  conduct.  As  an  impeachment  trial 
would    necessitate    a    considerable    extension 


of  the  session,  and  the  members  generally  de- 
sired to  get  home,  the  proposed  impeachment 
was  indefinitely  postponed  by  a  majority  of 
three  votes.  Judge  Field  not  voting. 

Judge  Field  introduced  and  secured  the 
passage  of  the  California  Practice  Act,  now 
known  as  the  Code  of  Civil  Procedure.  He 
adapted  it  from  the  New  York  Code  of  that 
name.  We  are  in  like  manner  indebted  to  him 
for  our  Criminal  Practice,  nO'W  our  Penal 
Code.  In  this  work  he  altered  and  recon- 
structed over  three  hundred  sections  of  the 
New  York  codes  and  added  over  one  hundred 
new   sections. 

Of  course  our  Civil  Procedure  and  Penal 
Codes  have  been  greatly  amplified  since  they 
left  his  hands  in  the  shape  of  the  Civil  and 
Criminal  Practice  Acts.  The  state  of  Ne- 
vada and  the  surrounding  territories  adopted 
these  laws  regulating  civil  and  criminal  pro- 
cedure before  they  were  translated  and  elab- 
orated   into    our   own    codes. 

As  an  illustration  of  the  re:spect  which 
Judge  Field  exacted  from  his  co-legislators, 
on  account  of  his  clearness  of  judgment  and 
constant  industry,  it  may  be  stated  that  the 
Criminal  Practice  Act,  as  introduced  by  him, 
was  never  read  before  the  legislature.  The 
rules  were  suspended  and  the  bill  read  by 
its  title  and  passed.  It  narrowly  escaped  hos- 
tile action  from  the  Governor.  It  comprised 
over  six  hundred  sections,  and  on  the  last  day 
of  the  session  the  Governor  told  Judge  Field 
that  he  could  not  sign  it  without  reading  it, 
and  it  was  too  late  for  him  to  do  that.  The 
Judge  urged  him  to  sign  it,  representing  that 
it  was  essential  to  the  harmonious  working 
of  laws  already  passed.  "You  say  it  is  all 
right?"  asked  the  Governor.  "Yes,"  answered 
the  Judge,  and  the  signature  was  given  which 
made  it  a  law. 

Our  legislator  also  secured  the  passage  of 
an  act  making  it  impossible  for  judges  to 
disbar  attorneys  without  a  hearing.  This 
was,  no  doubt,  suggested  to  him  by  his  war 
with  Judge  Turner.  He  also  drew  the  char- 
ters of  the  cities  of  Marysville,  Nevada  and 
Monterey.  His  other  legislative  work  was 
important.  When  the  legislature  adjourned, 
he  was  a  ruined  man  in  a  pecuniary  sense. 
He  could  hardly  pay  his  passage.  After  his 
expulsion  from  the  bar,  by  Judge  Turner,  he 
conmicnced  speculation,  and  sowing  to  the 
winds  he  reaped  whirlwinds.  When  he  re- 
turned to  the  city  which  he  had  practically 
founded  he  had  only  a  few  cents  in  his 
pocket,    and    he    was    minus    all    his    property, 


Stephen  J,  Field 


Hisforv  of  the  Bench  and  Bar  of  California. 


425 


and  in  debt  to  the  depth  of  $18,000.  No  old 
Californian  will  be  surprised  at  this.  It  was 
in  keeping  with  the  average  Californian's  ex- 
perience. "My  dear  Mr.  Peck,"  he  said  to  the 
proprietor  of  the  United  States  Hotel  (whom 
he  could  have  bought  out  twenty  times  over, 
one  year  before),  "will  you  trust  me  for  two 
weeks'  board?"  Whether  from  innate  nobility 
or  motives  of  business  policy.  Peck  answered, 
"Yes,"  and  he  added,  "for  as  long  as  vou 
want."  And  Peck  sent  a  man  and  had  the 
law-maker's  trunks  brought  from  the  steam- 
boat,  and   made   him   at   home. 

Now,    in    a    little    room,    with    a    pine    table 
and   a   cane-bottom   sofa,   and   the   bills   which 
had   just   passed   the   legislature   and   the   stat- 
utes of  the  previous  session  for  a  library,  thus 
humbly,    thus    bravely,    did    he    take   again    to 
his    profession.      There    was    an    unfurnished 
loft   over   his   office   in    which   he   slept.      The 
cot  he   slept  upon   he   bought  on   credit.     On 
this  he  spread  a  pair  of  blankets.     His  pillow 
was   his   valise.      His    washstand   was   a   chair 
without  a  back.     He  managed  to  secure  a  tin 
basin,  a  pail,  a  piece  of  soap,  a  toothbrush,  a 
comb,   and   a   few   towels.      He   was   his   own 
hewer  of  wood  and  drawer  of  water.     He  did 
not   use   that  rude  furniture  long,  nor   did  he 
pass  many  nights  in  the  loft.     Soon  the  luxury 
of   fine   apartments    for   both    office   and    lodg- 
ings   was    attained.      Within    two    and    a    half 
years  he  paid  all  his  indebtedness,  which,  with 
interest,    exceeded    $38,000.      His    great    suc- 
cess  drew   him   closer   to   his   profession,    and 
he   resisted   every   suggestion   or   invitation   to 
run    for    office.      Marysville    had    grown    into 
an    attractive    and    busy    city    of    twelve    or 
fifteen     thousand    people,    and    being    at    the 
head  of  navigation,  was  the  emporium  whence 
a   vast   country   drew   its   supplies.     It  had   an 
able  bar.    Judge  Field  practiced  in  Marysville, 
and    also    in    all    Northern    California.      For 
some  years  he  had  the  most  lucrative  practice 
in   the  State,  outside  of  San   Francisco.     We 
have    examined    the    California    Reports,    and 
find    that    during    the    period    of    about    seven 
years — between  his  leaving  the  legislature  and 
his    going    on     our    Supreme    bench — he    had 
more  causes  in  our  Supreme  Court  than  any 
other  lawyer.     And  his  success  on  appeal  wa-; 
almost    phenomenal.      He    was    successful    in 
nine   out    of   every    ten    cases.      Wherever    t)ie 
Reports    show    Stephen   J.    Field    was    for    the 
appellant,    the    judgment    was    reversel,    and 
where   he   was   for   the   respondent,   the   ,U'!g- 
ment  was  affirmed — that  is.  that  was  the  rule, 
and    the   exceptions   were   few. 


William   R.   Turner,  who  had  just  been  ap- 
pointed  Judge    of   the    District    Court    of    the 
Eighth     Judicial     District^     which     embraced 
Yuba  county,  opened  his  court  in  Marysville, 
on    the   first   Monday   in   June,    1850.      Among 
those  who  waited  upon  him  a  few  days  before 
to  pay   their   respects,   was   Stephen  J.    Fields 
who  handed  him  his  latest  copies  of  the  New- 
York   Evening   Post,   which   journal   was   then, 
the   organ    of   the   Freesoil   party.      From   this 
fact  Judge  Turner,  who  had  lived  in  TexaSj 
and   was   a  pro-slavery  man   of  narrow  mind 
and   violent   temper,   inferred   that   his   North- 
ern   visitor   was    an    Abolitionist,    althoug^li   he- 
was  in  error  on  this  as  on  many  other  point.'* 
about  him — all  of  which  he  found  out  in  time. 
The   New   York   lawyer    was   about   to   revisit 
his    old    home,    leaving   his   affairs    in    a   very 
prosperous    state,    when    his    friend,    General 
Sutter,    insisted   that   he    should   postpone   his 
departure  long  enough   to  be  his  counsel   and 
assist    his    attorney   in    the    case    of    Cameron 
vs.    Sutter,   just   instituted   in  Judge   Turner's 
court.      The   request   was   complied    with,    and 
during    the   first    week    of    court    the    case    of 
Cameron  vs.  Sutter  was  called.    Judge  Field's 
associate    made    a   preliminary   motion,    which 
Judge    Turner    denied.      Jesse    O.    Goodwin, 
who  sat  near,  passed  Judge  Field  the  Practice 
Act,  and  pointed   to  a  section   bearing  on  the 
question.     Judge  Field  arose,  and  asked  per- 
mission   to    read    the   section.     Judge    Turner 
replied :      "The    court    knows    the    law ;    the 
mind  of  the  court  is  made  up;  take  your  seat, 
sir."     Judge  Field   was  amazed,  but  said,  re- 
spectfully, that  he  excepted  and  would  appeal. 
Judge  Turner  then,  in  loud  and  angry  tones, 
said :      "Fine    that    gentleman    $200."      Judge 
Field's  next  was,  "Very  well,"  or  "Very  well, 
sir."      Judge    Turner    immediately    added,    "I 
fine  him  $300,  and  commit  him  to  the  custody 
of  the  sheriff  for  eight  hours."     Another  quiet 
"Very   well,"   came   from  Judge   Field.     Then 
Judge    Turner    exclaimed    excitedly,    "I    fine 
him    four    hundred    dollars    and    commit    him 
twelve    hours."     Judge    Field    then    remarked 
that  it  was  his  right  by  statute  to  appeal  from 
any  order  of  his   honor,   and   that  it   was  no 
contempt  of  court  to  give  notice  of  an  excep- 
tion or  an  appeal,  and  he  asked  the  members 
of  the  bar  present  if  it  could  be  so  regarded. 
Judge  Field  had  better  tell   the  rest  himself: 
"Upon  my  statement,  he  flew  into  a  perfect 
rage,  and  in  a  loud  and  boisterous  tone  cried 
out,  'I  fine  him  five  hundred  dollars  and  com- 
mit him  twenty-four  hours — forty-eight  hours 
— turn   him   out   of  court — subpoena   a   posse — 


426 


History  of  the  Bench  and  Bar  of  California. 


subpoena  me.'  I  left  the  court-room.  The  at- 
torney in  the  case  accompanied  me,  and  we 
were  followed  bv  the  deputy  sheriff.  After 
going  a  few  steps  we  met  the  coroner,  to 
whom  the  deputy  sheriff  transferred  me.  .  . 
.  Tlie  attorney,  who  was  much  exasperated 
at  the  conduct  of  the  Judge,  said  to  me,  as 
we  met  the  coroner,  'Never  mind  what  the 
Judge  does;  he  is  an  old  fool.'  I  replied, 
'Yes,  he  is  an  old  jackass.'  This  was  said  in 
an  ordinary  conversational  tone,  but  a  Cap- 
tain Powers,  with  whom  Turner  boarded, 
happened  to  hear  it,  and  running  to  the  court- 
house and  opening  the  door,  he  hallooed  out : 
'Judge  Turner !  Oh.  Judge  Turner !  Judge 
Field  says  you  are  an  old  jackass.'  A  shout 
followed,  and  the  Judge  seemed  puzzled 
whether  or  not  he  should  send  an  officer 
after  me  or  punish  his  excitable  friend  for 
repeating  my  language.  Toward  evening  the 
deputy  sheriff  met  the  Judge,  who  asked  him 
what  he  had  done  with  me.  The  deputy  an- 
swered that  I  had  gone  to  my  office,  and  was 
still  there.  The  Judge  said:  "Go  and  put 
him  under  lock  and  key,  and  if  necessary 
put  him  in  irons.'  The  deputy  came  to  me 
and  said :  'The  Judge  has  sent  me  to  put 
you  under  lock  and  key;  let  me  turn  the  key 
upon  you  in  your  own  office.'  " 

Asking  the  deputy  to  show  his  warrant  of 
commitment,  and  finding  that  he  had  none, 
the  lawyer  became  indignant,  and  told  the 
officer  to  go  away.  Saying,  "I  will  lock  the 
door  anyway,"  the  officer  did  so,  and  retired. 
A  writ  of  habeas  corpus  was  immediately  sued 
out  and  forthwith  executed,  and  that  same 
evening  the  County  Judge,  Henry  P.  Haun, 
afterwards  United  States  Senator,  promptly 
discharged  the  lawyer,  there  being  no  war- 
rant in  the  officer's  hands.  While  Judge 
Field  was  treating  a  crowd  of  excited  friends 
that  night — which  cost  him  $290 — Judge  Tur- 
ner came  on  the  scene,  on  fire  with  fury,  and 
applied  vile  and  obscene  epithets  to  the 
County  Judge,  saying  that  he  would  teach 
"that  fellow"  that  he  was  an  inferior  Judge. 
The  wrathful  magistrate  was  hung  in  effigy 
that  night  on  the  public  plaza.  He  said  this 
was  Judge  Field's  work — which  was  another 
mistake. 

The  story  of  this  extraordinary  "contempt" 
case  is  a  long  one,  but  we  can  reduce  it  and 
not  spoil  it.  On  the  day  when  the  court  next 
opened,  Judge  Turner  made  an  order  that 
Judge  Field  be  expelled  from  the  bar  for 
suing  out  the  habeas  corpus;  also  expelling 
Samuel    B.    Mulford    and   Jesse    O.    Goodwin 


for  being  witnesses  on  the  return — on  the  pre- 
tense that  they  had,  all  three,  "villified  the 
court  and  denounced  its  proceedings."  He 
also  fined  the  County  Judge  $50  and  ordered 
him  imprisoned  for  forty-eight  hours  for  dis- 
charging Judge  Field  from  arrest.  The 
County  Judge  paid  his  fine  and  left  the  court- 
room, and  the  sheriff  took  Judge  Field  into 
custody.  The  latter  immediately  sued  out  an- 
other writ  of  habeas  corpus,  and  while  before 
Judge  Haun  and  his  associates  of  the  Court 
of  Sessions,  arguing  for  his  discharge,  the 
sheriff  entered  and  declared  his  intention  of 
taking  Judge  Field  from  the  court-room  and 
Judge  Haun  from  the  bench,  and  putting  both 
in  confinement  in  pursuance  of  Judge  Tur- 
ner's order. 

There  was  an  extraordinary  scene  in  court. 
Judge  Haun  told  the  sheriff  that  the  Court 
of  Sessions  was  holding  its  regular  term; 
that  he  (the  sheriff)  was  violating  the  law, 
and  that  the  court  must  not  be  disturbed  in  its 
proceedings.  The  sheriff  returned  to  Judge 
Turner  and  reported  the  situation.  Judge 
Turner  ordered  a  posse  to  be  summoned, 
asking  those  in  the  courtroom  to  serve  on  it, 
and  directed  the  sheriff  to  take  Judge  Haun 
and  Lawyer  Field  by  force,  and,  if  necessary, 
to  put  Judge  Haun  in  irons — to  handcuff  him. 
The  sheriff  and  his  posse  soon  rushed  into 
the  Court  of  Sessions,  forced  the  attorney 
from  the  court-room,  and  were  just  about  to 
give  the  unexampled  exhibition  of  tearing  a 
magistrate  from  his  seat,  when  Judge  Haun 
stepped  to  a  closet,  and  drew  from  it  a  navy 
revolver,  cocked  it,  and  leveling  it  at  the 
sheriff,  declared  he  would  kill  him  if  he  ap- 
proached nearer.  He  also  fined  the  sheriff 
$200  for  contempt  of  court,  appointed  a  tem- 
porary bailiff,  and  directed  the  latter  to  eject 
the  sheriff  and  his  party  from  the  chamber. 
The  new  bailiff  acted  promptly,  the  bystand- 
ers responded  to  his  call,  and  the  intruders 
withdrew.  Judge  Haun  then  laid  his  revolver 
on  his  desk,  inquired  if  there  was  any  further 
business,  and  there  being  none,  he  adjourned 
the  court.  To  further  curtail  the  account,  it 
may  be  stated  that  before  the  Supreme  Court, 
Judge  Field  was  successful  as  usual.  That 
tribunal  entirely  undid  Judge  Turner's  work. 
His  orders  imposing  fines  were  reversed,  and 
Messrs.  Field,  Goodwin  and  Mulford  were 
restored  to  the  bar.  Judge  Turner  refused  to 
obey  the  mandate  of  the  Supreme  Court  for 
the  restoration  of  the  attorneys.  He  issued 
an  address  to  the  public,  to  which  the  three 
attorneys    and    five    others    replied,    the    reply 


History,  of  the  Bcncli  and  Bar  of  California. 


427 


declaring  that  Judge  Turner  was  a  man  of 
depraved  tastes,  of  vulgar  habits,  of  an  un- 
governable temper,  reckless  of  truth  when  his 
passions  were  excited,  and  grossly  incompe- 
tent. 

Judge    Turner    then    threatened    to    publicly 
insult  Judge  Field,  and  then   to  shoot  him,  if 
he  resented  it.     Judge  Field  repaired  to  San 
Francisco  and  took  counsel  of  Judge  Nathan- 
iel   Bennett.      The    latter    gave    some    advice, 
which,    if    acted    upon,     would    hardly    have 
tended  to  promote  Judge  Turner's  well-being. 
Being  unused  to  arms,  and  reared  to  do  with- 
out them.  Judge  Field  did  not   like  to   "heel" 
himself,  to  use  the  word  of  that  day,  but  he 
was    told    and    he    believed    that    his    life    de- 
pended   on    it,    and   accordingly    he   purchased 
a  pair  of  revolvers,  had  a  sack  coat  made  with 
pockets   in    which   the   weapons   could    lie   and 
be   discharged   without   taking   them   out,    and 
by  practice  made  himself  a  good  shot.     Then 
he  sent  by  Ira  A.  Eaton,  a  message  to  Judge 
Turner,  which  was  substantially,  "I  desire  no 
trouble   with   you,   but   I   will   not   avoid   you ; 
I  have  heard  of  your  threats,  and  if  you  attack 
me  or  come  at  me  in  a  threatening  manner,  I 
will    kill    you."      They    often    met,    in    many 
places,    but    no    words    passed.      Judge    Field, 
when    he    saw    his    foe,    always    grasped    his 
pocketed  arms,  and  kept  a  sharp  lookout.     He 
said  he  felt  that  he  was  in  great  danger,  but 
that  after  a  time  there  was  a  sort  of  fascina- 
tion  in    this   feeling.      He   did   not   think   that 
Judge  Turner  would  have  shot  him  down  de- 
liberately,    when    sober,    but    that,     when     in 
drink,  and  in  presence  of  lawless  crowds  who 
heard    his    threats,    it    would    have    taken    but 
little   to   urge   him   on. 

All  this  happened,  be  it  remembered,  six 
or  seven  months  before  the  legislature, 
through  Judge  Field's  influence,  removed 
Judge  Turner  to  the  snows  of  Trinity.  In 
the  meantime  the  disbarred  attorney  was 
ruined  in  business.  He  was  not  permitted 
to  practice  in  the  District  Court,  despite  the 
Supreme  Court  mandate,  and  if  he  had  been, 
his  relations  with  the  court  were  such  as  to 
keep   clients   away   from   him. 

Why  did  not  the  Supreme  Court  compel 
obedience  to  its  mandate?  It  happened  thus: 
TTie  disbarred  attorneys  having  been  admit- 
ted to  the  Supreme  Court,  which  entitled 
them  to  practice  in  all  the  courts  of  the  State, 
Judge  Turner  made  an  order  for  them  to 
show  cause  why  they  should  not  be  again 
expelled.  They  showed  cause  enough,  but 
it   was  not   received,   and    a    second   order   of 


expulsion  was  entered.  From  his  very  posi- 
tion he  was  enabled  to  keep  the  attorneys 
lively,  and  for  a  time  to  ruin  their  business. 
Another  mandate  was  obtained  from  the  Su- 
preme Court  for  their  reinstatement.  They 
then  asked  for  Judge  Turner's  punishment, 
but  the  Supreme  Court  declined  to  punish 
him,  on  the  ground  that  he  had  recognized 
the  first  mandate  by  making  a  second  order 
of  expulsion,  after  an  order  to  show  cause, 
etc.      (Very  nice  point.) 

Judge  Turner,  after  being  removed  to  Trin- 
ity, served  out  his  term,  and  at  its  close  was 
a    candidate    for    re-election.      His    opnonent 
being   declared    elected   by   one   vote,    he    con- 
tested,   and    it    went-  to    the    Supreme    Court. 
Judge  Field  was  then  on  the  latter  bench,  but 
he   did   not  participate   in    the   hearing  or   de- 
cision, and  Justices  Terry  and  Baldwin  gave 
the  office  to  Turner.     The  latter  then  sent  a 
friend  to  Judge  Field  to  inquire  if  he   would 
be  reconciled.     Judge  Field  said  no;   that  the 
world  was   wide   enough   for  both;   and   each 
would  go  his  own  way.     TTie  next  day  Judge 
Turner   stationed   himself   where   Judge    Field 
had  to  pass  to  go  into  court,  and  as  his  old 
adversary  approached,   he   called   out:     "I   am 
now   at  peace   with   all   the   world ;   if  there  is 
any  man   who   feels  that  I   have  done  him  an 
injury,  I  am   ready  to  make  amends."     Judge 
Field   looked   at   him   a   moment,    then   passed 
on.      The   same   thing  occurred   the  next   day. 
That   was   the   last  time   the   two  Judges   ever 
met.     Judge  Turner  served  out  his  term,  and 
was    again    elected.      In     1867,    Mr.     Charles 
Westmoreland,  member  of  the  assembly  from 
Trinity,   offered   resolutions   looking   to   Judge 
Turner's    impeachment    for    high    crimes    and 
misdemeanors.      Mr.    Westmoreland    made    a 
speech   severely  arraigning  the  Judge   for  his 
many  acts  of  tyranny.     The  resolutions  were 
adopted,   but   before   the  appointed   committee 
took  action.  Judge  Turner  resigned,   and  not 
long  afterwards  died. 

At  the  end  of  this  extraordinary  and  pro- 
tracted struggle.  Judge  Field  found  that  his 
triumph  had  cost  him  his  fortune  and  his  busi- 
ness. Yet  his  reputation  as  a  lawyer  had  in- 
creased, and  as  soon  as  it  was  seen  that  he 
had  fair  play  at  court,  his  practice  again  be- 
came large.  Judge  Turner  being  moved  to 
another  district,  and  a  new  (Tenth)  district 
being  created,  comprising  Yuba.  Nevada,  and 
Sutter  counties,  the  Governor  commissioned 
Gordon  N.  Mott.  Judge  of  the  new  court. 
Judge  Mott  was  the  personal  and  political 
friend  of  Judge  Field,  who  urged  him  for  the 


428 


History  of  the  Bench  and  Bar  of  California. 


place.     He  died  in   1887,  at  quite  an  advanced 
age,  in  San  Francisco. 

In  the  fall  of  1857,  Judge  Field  was  elected, 
as  the  Democratic  nominee,  a  Justice  of  the 
State  Supreme  Court.  In  September,  1857, 
immediately  after  his  election,  and  about  three 
months  before  his  term  was  to  commence, 
Hugh  C.  Murray,  Chief  Justice,  died,  and 
Peter  H.  Burnett,  Associate  Justice,  was  ap- 
pointed Chief  Justice.  To  the  vacancy  thus 
caused  by  Judge  Murray's  death  and  Judge 
Burnett's  advancement.  Judge  Field  was  ap- 
pointed by  Governor  J.  Neely  Johnson,  an  old 
Whig  and  Know  Nothing  opponent  of  his. 
He  accepted  and  took  his  seat  on  the  Supreme 
bench,  October  13,  1857,"  nearly  three  months 
earlier  than  he  had  anticipated. 

The  opinions  of  this  jurist,  delivered  while 
on    our    State    Supreme    bench,    are    compre- 
hended  in   fifteen    volumes   of   the    California 
Reports — Nos.    7    to   21    inclusive.     They   had 
been    commented    on    and    approved    by    Mr. 
Emory  Washburn,  professor  of  law  in  Har- 
vard University,  (see  American  Law  Register 
for  June,    1862)  ;   by  Judge   Dillon,   a   leading 
and      universally     approved      American      law 
writer;  by   Professor  John   Norton   Pomeroy, 
who    ably    sketched    Judge    Field's    career    as 
legislator    and    jurist;    by    Judge    Joseph    G. 
Baldwin,  one  of  the  most  fertile  legal  minds, 
who  said  that  "Judges   reposed  confidence  in 
his   opinions,    and    he   always   gave   them    the 
strongest  proofs  of   the   weight  justly   due   Id 
his  conclusions,"  and  by  many  other  authori- 
ties on  legal  science.     Said   Professor  Pome- 
roy:   "I  was  told  by  a  gentleman,  who  has  for 
many  vears  been  employed  by  a  leading  law 
publishing   house   of    Boston    as    its   traveling 
agent  through  all  the  States  of  the  Mississippi 
and   Ohio   valleys,   that,    when   he  first  began 
his   work,   the   New   York   Reports   were  uni- 
versally  sought   for   in   every   State;   but   that 
of  late  years  the  demand  had   changed   from 
the    New    York    to    the    California    Reports. 
Everywhere    through    the    Western    and    the 
Northwestern   States  the  profession  generally 
wished    to    obtain    the    California    Reports    as 
next  in  authority  to  those  of  their  own  State." 
This  gratifies  our  State  pride ;  and  to  whom 
do  we  owe  it  more  than  to  Judge  Field?     He 
had  been   longer  on  our   Supreme  bench   than 
any   other   man,   his    decisions   had   been    less 
disturbed,  and  more  respected  by  his  succes- 
sors than  those  of  any  other  Judge,  and,  be 
ing    grounded    in    immutable    principle,    they 
have  all  the  strength   and  majesty  of  author- 
ity. 


judge  Field  was  commissioned  by  President 
Lincoln  a  Justice  of  the  Supreme  Court  of  the 
United  States  on  March  16,  1863.  He  took 
the  oath  on  May  20th,  following.  He  was 
assigned  to  the  Tenth  circuit,  then  comprising 
California  and  Oregon,  Nevada  being  after- 
wards included. 

On  January  13,  1866.  at  Washington,  while 
opening  his  mail,  which  lay  on  a  center  table, 
Judge  Field  noticed  among  the  papers  a  small 
package  about  an  inch  and  a  half  thick,  three 
inches  wide  and  three  and  a  half  inches  long. 
It   was   stamped,   addressed   to  "Hon.    Stephen 
J.     Field,     Washington,     D.     C,"     and     was 
marked    "Per    Steamer."      It    bore    no    trace 
of  hand-writing.     The  Judge's  name  had  been 
cut  from  a  volume  of  the  California  Reports, 
and    pasted    on.       The    words    "Washington, 
D.    C,"    and    "Per    Steamer,"    had    been    cut 
from   a   newspaper.      On    the   other   side   were 
the    words    in    print :      "From    Geo.    H.   John- 
ston's    Pioneer    Gallery,    645    and    649    Clay 
street,    San    Francisco."     Thinking    it    was    a 
present    for   his   wife,   who   was   then    in   New 
York,    he    concluded    to    partially    open    it    to 
.satisfy    himself    on    that    point.      Tearing    off 
the    paper    and    raising    the    lid    of   what    ap- 
peared to  be  some  sort  of  a  little  box,  he  was 
struck     with     its     black     appearance     inside. 
"What  is  this?"  he  said  to  Judge  Delos  Lake, 
of    San    Francisco,    who    was    making    him    a 
call.      Judge    Lake    also    suspected    something 
wrong,    and    quickly    said,    looking    over    his 
friend's    shoulder :      "Don't  open   it — it   means 
mischief."     Judge  Lake   took   it  in   his  hands, 
and    treating    it    with    the   utmost    tenderness, 
carried  it  to  the  capitol  and  showed  it  to  Mr. 
Broom,    one    of    the    clerks    of    the    Supreme 
Court.     They  concluded   to   try  to  explode  it. 
They  dipped  it  in  water,  let  it  soak  for  some 
minutes,   then   took   it   into   the   carriage   way, 
under  the  steps  leading  to  the  Senate  Cham- 
ber,  and   threw   it  against  the   wall,   shielding 
themselves  behind  one  of  the  columns.     The 
blow    exposed    the    contents.      Twelve    pistol 
cartridges  lay  imbedded  in  glue,  a  bundle  of 
sensitive    friction    matches,    a    strip    of    sand- 
paper,   and    some    fulminating    powder    were 
ingeniously  placed — the  whole  contrivance  be- 
ing so  arranged  that  opening  the  lid  would  ig- 
nite the  matches,  which  in  turn  would  explode 
the  cartridges.     It   was   sent   to   the   War  De- 
partment,   and    General    Dyer,    chief    of    ord- 
nance,  had   it   examined.     A   detailed   descrip- 
tion  of   it   was   returned   to   General   Dyer  by 
Major  Benton. 

This    murderous    instrument    was    evidently 


History  of  the  Bench  and  Bar  of  California. 


429 


sent  to  the  Judge  by  some  man  in  San  Fran- 
cisco, who  had  been  disappointed  by  some  de- 
cision. On  the  inside  of  the  lid  was  pasted 
a  slip  cut  from  a  San  Francisco  paper,  o' 
October  31,  1864,  stating  that  Judge  Field 
had  on  the  day  previous  decided  a  certain  case, 
but  this  availed  nothing,  so  far  as  the  dis- 
covery of  the  bloody-minded  inventor  wai 
concerned.  He  was  never  found  out.  Not 
even  an  arrest  was  made  in  connection  with 
the  affair,  although  the  San  Francisco  police 
and  many  detectives  spent  months  in  trying 
to  find  a  clue. 

Judge  Field  was  married  in  San  Francisco 
in  1859,  ^"d  his  widow,  who  was  Miss  Sue 
V.  Swearingen,  is  still  living. 

About  the  year  1880,  Judge  Field  had 
printed  in  a  neat  little  volume  of  250  pages 
his  autobiography.  This  was  to  preserve  the 
record  of  his  eventful  life,  and  was  distrib- 
uted to  his  intimate  friends,  only  thirty  copies 
having  been  printed.  A  year  later,  an  octavo 
volume  of  464  pages  was  given  to  the  profes- 
sion by  Chauncey  F.  Black  and  Samuel  B. 
Smith,  of  New  York  city.  It  was  a  compihi- 
tion  made  by  political  and  personal  friends 
of  Judge  Field,  is  an  account  of  his  work  as 
a  legislator  and  Judge,  and  gives  copious 
extracts  from  his  many  opinions.  It  is  pre- 
ceded by  an  introductory  sketch  by  John 
Pomeroy,  and  contains  also  an  elaborate 
article  by  John  T.  Doyle,  of  the  San  Francisco 
bar,  on  the  Electoral  Commission  of  1877  and 
Judge   Field's   connection   therewith. 

Judge  Field's  judicial  connection  with  the 
Sharon  cases,  and  with  the  celebrated  con- 
tempt case  of  David  S.  Terry,  is  set  forth 
ii-  this  History  in  the  article  on  that  litiga- 
tion. Judge  Field  and  Judge  Terry  had  been 
on  the  California  Supreme  bench  together  for 
two  years   (1857-59). 

After  the  killing  of  Terry,  his  slayer,  David 
Neagle,  was  arrested  at  Stockton,  upon  a 
warrant  issued  there  by  a  justice  of  the  peace, 
before  whom  Mrs.  Terry  had  filed  a  com- 
plaint charging  both  Neagle  and  Judge  Field 
with  the  murder  of  her  husband.  On  habeas 
corpus  proceedings  before  the  United  States 
Circuit  Judge  Sawyer  and  United  States  Dis- 
trict Judge  Sabin,  Neagle  was  discharged 
from  custody  on  September  16,  1889.  Judge 
Field,  later  in  the  same  year,  presented  Neagle 
with  a  gold  watch  and  chain. 

In   discharging  Neagle,  the  court  said  : 

"When  the  deceased  left  his  seat,  some 
thirty  feet  distant,  walked  stealthily  down  the 
passage  in  the  rear  of  Justice  Field  and  dealt 


the  unsuspecting  jurist  two  preliminary  blows, 
doubtless  by  way  of  reminding  him  that  the 
time  for  vengeance  had  at  last  come.  Justice 
Field  was  already  at  the  traditional  'wall'  of 
the  law.  He  was  sitting  quietly  at  a  table, 
back  to  the  assailant,  eating  his  breakfast, 
the  side  opposite  being  occupied  by  other  pas- 
sengers, some  of  whom  were  women,  simi- 
larly engaged.  When,  in  a  dazed  condition, 
he  awoke  to  the  reality  of  the  situation  and 
saw  the  stalwart  form  of  the  deceased  with 
arm  drawn  back  for  a  final  mortal  blow,  there 
was  no  time  to  get  under  or  over  the  table, 
had  the  law,  under  any  circumstances,  re- 
quired such  an  act  for  his  justification.  Nea- 
gle could  not  seek  a  'wall'  to  justify  his 
action  without  abandoning  his  charge  to  cer- 
tain death.  When,  therefore,  he  sprang  to 
his  feet  and  cried,  'Stop!  I  am  an  officer,' 
and  saw  the  powerful  arm  of  the  deceased 
drawn  back  for  the  final  deadly  stroke,  in- 
stantly change  its  direction  to  his  left  breast, 
apparently  seeking  his  favorite  weapon,  the 
knife,  and  at  the  same  time  heard  the  half- 
suppressed,  disappointed  growl  of  recognition 
of  the  man,  who,  with  the  aid  of  half  a  dozen 
others,  had  finally  succeeded  in  disarming 
him  of  his  knife  at  the  court-room  a  year 
before,  the  supreme  moment  had  come,  or 
at  least,  with  abundant  reason,  he  thought 
so,  and  fired  the  fatal  shot.  The  testimony 
all  concurs  in  showing  this  to  be  the  state  of 
facts,  and  the  almost  universal  consensus  of 
public  opinion  of  the  United  States  seems 
to  justify  the  act.  On  that  occasion  a  second, 
or  two  seconds,  signified,  at  least,  two  valu- 
able lives,  and  a  reasonable  degree  of  pru- 
dence would  justify  a  shot  one  or  two  sec- 
onds too  soon  rather  than  a  fraction  of  a 
second  too  late.  Upon  our  minds  the  evi- 
dence leaves  no  doubt  whatever  that  the  hom- 
icide was  fully  justified  by  the  circumstances. 
Neagle  on  the  scene  of  action,  facing  the 
party  making  a  murderous  assault,  knowing 
by  personal  experience  his  physical  reputa- 
tion, his  lifelong  habit  of  carrying  arms,  his 
readiness  to  use  them,  and  his  angry,  murder- 
ous threats,  and  seeing  his  demoniac  looks, 
his  stealthy  assault  upon  Justice  Field  from 
behind,  and,  remembering  the  sacred  trust 
committed  to  his  charge — Neagle,  in  these  try- 
ing circumstances,  was  the  party  to  deter- 
mine when  the  supreme  moment  for  action 
had  come,  and  if  he  honestly  acted  with 
reasonable  judgment  and  discretion,  the  law 
justifies  him,  even  if  he  erred.  But  who  will 
have  the  courage  to  stand   up  in   the  presence 


430 


History  of  the  Bench  and  Bar  of  California. 


of  the  facts  developed  by  the  testimony  of 
this  case,  and  say  that  he  fired  the  smallest 
fraction  of  a  second  too  soon? 

"In  our  judgment,  he  acted,  under  the  try- 
ing circumstances  surrounding  him,  in  good 
faith,  and  with  consummate  courage,  judg- 
ment, and  discretion.  The  homicide  was,  in 
our  opinion,  clearly  justifiable  in  law,  and  in 
the  forum  of  sound,  practical  common  sense 
commendable.  This  being  so.  and  the  act 
having  been  done  ...  in  pursuance  of 
a  law  of  the  United  States,  as  we  have  al- 
ready seen,  it  cannot  be  an  offense  against, 
and  he  is  not  amenable  to.  the  law  of  the 
State." 

The  decision  of  the  Circuit  Court  discharg- 
ing Neagle  from  the  custody  of  the  sheriff 
of  San  Joaquin  county  was  affirmed  by  the 
Supreme  Court  of  the  United  States  on  the 
14th  of  April,  1890.  Justice  Field  did  not 
sit  at  the  hearing  of  the  case,  and  took  no 
part  in  its  decision,  nor  did  he  remain  in  the 
conference-room  with  his  Associate  Justices 
at  any  time  while  it  was  being  considered,  or 
on  the  bench   when   it  was   delivered. 

The  opinion  of  the  court  was  delivered  by 
Justice  Miller.  Dissenting  opinions  were  filed 
by  Chief  Justice  Fuller,  and  Justice  Lamar. 
Justice  Miller's  opinion  concludes  as  follows: 
"We  have  thus  given,  in  this  case,  a  most 
attentive  consideration  to  all  the  questions 
of  law  and  fact  which  we  have  thought  to 
be  properly  involved  in  it.  We  have  felt  it 
to  be  our  duty  to  examine  into  the  facts  with 
a  completeness  justified  by  the  importance  of 
the  case,  as  well  as  from  the  duty  imposed 
upon  us  by  the  statutes,  which  we  think  re- 
quires of  us  to  place  ourselves,  as  far  as  pos- 
sible, in  the  place  of  the  Circuit  Court  and 
to  examine  the  testimony  and  the  arguments 
in  it.  and  to  dispose  of  the  party  as  law  and 
justice   require. 

"Tlie  result  at  which  we  have  arrived  upon 
this  examination  is,  that  in  the  protection  of 
the  person  and  the  life  of  Mr.  Justice  Field. 
while  in  the  discharge  of  his  official  duties. 
Neagle  was  authorized  to  resist  the  attack 
of  Terry  upon  him;  that  Neagle  was  correct 
in  the  belief  that  without  prompt  action  on  his 
part  the  assault  of  Terry  upon  the  Judge 
would  have  ended  in  the  death  of  the  latter; 
that  such  being  his  well-founded  belief,  he 
was  justified  in  taking  the  life  of  Terry,  as 
the  only  means  of  preventing  the  death  of  the 
man  who  was  intended  to  be  his  victim  ;  that 
in  taking  the  life  of  Terry,  under  the  cir- 
cumstances, he  was  acting  under  the  authority 


of  the  law  of  the  United  States,  and  was 
justified  in  doing  so;  and  that  he  is  not  liable 
to  answer  in  the  courts  of  California  on.  ac- 
count of  his  part  in  that  transaction. 

"We  therefore  affirm  the  judgment  of  the 
Circuit  Court  authorizing  his  discharge  from 
the  custody  of  the  sheriff." 

Judge  Field  was  also  arrested  under  the 
same  warrant  in  his  chambers  in  the  Federal 
building,  San  Francisco,  by  Sheriff  Cunning- 
ham, of  Stockton.  The  sheriff  had  given  the 
Judge  a  day's  notice,  and  a  petition  for  a  writ 
of  habeas  corpus  was  presented  to  the  other 
Federal  Judges  before  named.  The  writ  was 
issued,  and  was  heard  on  August  22d.  The 
United  States  district  attorney  appeared  for 
Judge  Field,  and  associated  with  him  were 
Richard  T.  Mesick,  Samuel  M.  Wilson  and 
William  F.  Herrin.  The  matter  was  submit- 
ted with  leave  to  file  briefs  before  August 
27th.  Before  that  date  the  Governor  of  the 
State  wrote  to  the  attorney-general  as  fol- 
lows : 

"Executive    Department, 
"State   of   California. 

"S.\CRAMENTO,    AugUSt    21,     1889. 

"Hon.  G.  A.  Johnson, 

"Attorney-General.    Sacramento : 

"Dear  Sir:  TTie  arrest  of  Hon.  Stephen  J. 
Field,  a  Justice  of  the  Supreme  Court  of  the 
United  States,  on  the  unsupported  oath  of  a 
woman,  who,  on  the  very  day  the  oath  was 
taken,  and  often  before,  threatened  his  life, 
will  be  a  burning  disgrace  to  the  State  unless 
disavowed.  I  therefore  urge  upon  you  the 
propriety  of  at  once  instructing  the  district 
attorney  of  San  Joaquin  county  to  dismiss 
the   unwarranted   proceedings    against   him. 

"The  question  of  the  jurisdiction  of  the 
State  court  in  the  case  of  the  deputy  United 
States  marshal.  Neagle.  is  one  for  argument. 
The  unprecedented  indignity  on  Justice  Field 
does  not  admit  of  argument. 
"Yours  truly. 

"R.    W.     W.\TERMAN, 

"Governor." 
On  the  2r)th  of  .Vugiist,  upon  the  motion  of 
the  district  attorney  and  the  filing  of  the  at- 
torney-general's letter,  the  charge  against  Jus- 
tice Field  was  dismissed  by  the  justice  of  the 
peace  who  had  issued  the  warrant  against 
him. 

The  dismissal  of  this  charge  released  him 
from  the  sheriff's  claim  to  his  custody,  an-i 
the  habeas  corpus  proceeding  in  his  behalf 
fell  to  the  ground.  On  the  27th,  the  day  ap- 
pointed for  the  further  hearing,  the  sheriff 
announced  that  in  compliance  with  the  order 
of  the  magistrate  he  released  Justice  Field 
from  custody,  whereupon  the  case  of  habeas, 
corpus   was   dismissed. 


History  of  the  Bench  and  Bar  of  California. 


431 


Among  the  expressions  of  public  and  pri- 
vate opinion  conveyed  to  Judge  Field  on  the 
subject  of  this  tragedy,  was  one  from  the 
great  Democratic  leader  and  statesman, 
•  Thomas  F.  Bayard,  of  Delaware,  of  which 
the    following   is   an   extract: 

"Passing  over  the  arguments  that  may  be 
wrought  out  of  the  verbiage  of  our  dual  con- 
stitution of  government,  the  robust  and  es- 
sential principle  must  be  recognized  and  pro- 
claimed^that  the  inherent  powers  of  every 
government  which  are  sutticient  to  authorize 
and  enforce  the  judgments  of  its  courts  are 
equally  and  at  all  times  and  in  all  places  suffi- 
cient to  protect  the  individual  Judge  who  fear- 
lessly and  conscientiously,  in  the  discharge  of 
his  duty,  pronounces  those  judgments. 

"The  case,  my  dear  friend,  is  not  yours  alone  ; 
it  is  equally  mine,  and  that  of  every  other 
American.  A  principle  so  vital  to  society  and 
to  the  body  politic,  was  never  more  danger- 
ously and  wickedly  assailed  than  by  the  as- 
sault of  Terry  and  his  wife  upon  you  for  your 
just  and  honorable  performance  of  your  duty 
as  a   magistrate." 

On  the  day  after  Judge  Terry's  death,  the 
following  proceedings  occurred  in  the  Su- 
preme Court  of  the   State : 

Late  in  the  afternoon,  just  after  the  coun- 
sel in  a  certain  action  had  concluded  their 
argument,  and  before  the  next  cause  on  the 
calendar  was  called,  James  L.  Crittenden, 
Esq.,  who  was  accompanied  by  W.  T.  Bag- 
gett,  Esq.,  arose  to  address  the  court.  He 
said :  "Your  honors,  it  has  become  my  pain- 
ful and  sad  duty  to  formally  announce  to 
the  court  the  death  of  a  former  Chief  Jus- 
tice— " 

Chief  Justice  Beatty :  "Mr.  Crittenden,  I 
think  that  is  a  matter  which  should  be  post- 
poned until  the  court  has  had  a  consultation 
about   it." 

The  court  then,  without  leaving  the  bench, 
held  a  whispered  consultation,  and  Mr.  Crit- 
tenden then  went  on  to  say:  "I  was  doing 
this  at  the  request  of  several  friends  of  the  de- 
ceased. It  has  been  customary  for  the  court 
to  take  formal  action  prior  to  the  funeral. 
In  this  instance,  I  understand  the  funeral  is 
to  take  place  tomorrow." 

Chief  Justice  Beatty:  "Mr.  Crittenden,  the 
members  of  the  court  wish  to  consult  with 
each  other  on  this  matter,  and  you  had  better 
postpone  your  motion  of  formal  announce- 
ment until  tomorrow  morning." 

Mr.  Crittenden  and  Mr.  Baggett  then  with- 
drew from   the  court-room. 

On  the  following  day,  in  the  presence  of  a 
large   assembly,   including   an   unusually   large 


attendance  of  attorneys,  Mr.  Crittenden  re- 
newed his  motion.     He  said  : 

"If  the  court  please,  I  desire  to.  renew  the 
matter,  which  I  began  to  present  last  .evening. 
As  a  friend — a  personal  friend — of  the  late 
Judge  Terry,  I  should  deem  myself  very 
cold,  indeed,  and  very  far  from  discharging 
the  duty  which  is  imposed  upon  that  rela- 
tion, if  I  did  not  present  the  matter  which 
I  propose  to  present  to  this  bench  this  morn- 
ing. I  have  known  the  gentleman  to  whom  I 
have  reference  for  over  thirty  years,  and  I 
desire  simply  now,  in  making  this  motion, 
to  say  that  the  friendship  of  so  many  years, 
and  the  acquaintance  and  intimacy  existing 
between  that  gentleman  and  his  family  and 
myself  for  so  long  a  period,  require  that  I 
should  at  this  time  move  this  court,  as  a 
court,  out  of  recollection  for  the  memory  of 
the  man  who  presided  in  the  Supreme  Court 
of  this  State  for  so  many  years  with  honor, 
ability,  character,  and  integrity,  and,  there- 
fore, I  ask  this  court,  out  of  respect  for  his 
memory,  to  adjourn  during  the  day  on  which 
he  is  to  be  buried,   which  is  today." 

Chief  Justice   Beatty   said : 

"I  regret  very  much  that  counsel  should 
have  persisted  in  making  this  formal  an- 
nouncement, after  the  intimation  from  the 
court.  Upon  full  consultation,  we  thought  it 
would  be  better  that  it  should  not  be  done. 
The  circumstances  of  Judge  Terry's  death  are 
notorious,  and  under  these  circumstances  this 
court  had  determined  that  it  would  be  better 
to  pass  this  matter  in  silence,  and  not  to  take 
any  action  upon  it ;  and  that  is  the  order  of 
the    court.' 

Judge  Field  in  1897,  when  his  term  on  the 
United  States  Supreme  bench  had  equaled 
those  of  John  Marshall  and  Joseph  Story 
(thirty-four  years),  resigned.  He  had  writ- 
ten in  that  period  620  of  the  decisions  of  that 
court.  He  died,  childless,  at  the  age  of  eighty- 
three  years,  at  Washington,  D.  C,  of  kidney 
disease,  on  the  9th  day  of  April,   1S99. 


E.  D.   BAKER. 


Colonel  Edward  D.  Baker,  who  was  pre- 
eminent as  a  lawyer,  orator  and  statesman,  a 
soldier  in  three  wars,  and  who  fell  in  battle, 
has  tnsaged  the  editor's  pen  in  three  inde- 
pendnit  works  already.  What  has  been  said 
will  be  suinniarized  here,  and  something  added: 

He  was  born  in  London,  England,  in  i8ri. 
When  five  years  old,  his  parents  came  to  the 


432 


History  of  the  Bench  and  Bar  of  California. 


United  States,  bringing  him  with  them.  They 
came  to  this  country,  loving  its  institutions. 
They  were  teachers,  educators,  and  making 
their  home  in  Philadephia,  when  the  echoes 
of  the  old  bell  of  freedom  yet  lingered  on  the 
air,  they  opened  a  school  and  taught  the  youth 
of  that  city  until  the  father's  death,  ten  years 
later.  The  mother  lived  to  a  great  age,  sur- 
viving her  distinguished  son. 

When  in  the  fullness  of  time,  the  latter  be- 
came a  United  States  Senator,  his  first  letter 
bearing  the  senatorial  frank  was  addressed  to 
the  aged  mother.  The  Rev.  Thomas  H.  Pearne 
of  Portland,  Oregon,  is  authority  for  the 
statement  that,  on  the  way  to  the  postoffice 
with  the  letter  in  hand,  and  conversing  with 
a  friend,  the  Senator  remarked  with  fond  pride 
that  his  mother,  then  more  than  eighty  years 
old,  was  a  woman  of  strong,  cultivated  mind ; 
that  she  had  often  taken  down  his  speeches  in 
shorthand,  which  she  wrote  with  elegance  and 
rapidity;  that  she  was  a  beautiful  writer,  and 
still  retained  in  vigor  her  mental  faculties. 
Tears  were  in  his  eyes  as  he  recounted  her  vir- 
tues and  excellences. 

At  seventeen,  Baker  went  to  Illinois,  settling 
at  Carrollton.  He  studied  law  and  elocution. 
When  he  was  twenty-one  he  entered  the  Black 
Hawk  war,  obtaining  a  Major's  commission. 
He  distinguished  himself  in  that  war.  In 
1845-6  he  represented  the  Springfield  district 
in  Congress ;  and  the  old  Globe  will  show  that 
he  was  then  gifted  with  that  clearness  of  vis- 
ion, and  that  charm  of  speech,  which  later  so 
often  fascinated  the  people  of  the  New  West. 
He  was  then  the  first  orator  of  Ilinois.  He 
was  a  Whig,  but  unlike  most  of  the  Northern 
Whigs,  he  favored  the  Mexican  war.  He  gave 
up  his  seat  in  Congress  to  fight  under  Taylor. 
He  was  at  Cerro  Gordo,  at  the  head  of  the 
Fourth  Illinois  regiment,  which  regiment  was 
raised  by  him.  Without  following  him  through 
the  war,  let  it  be  said  that  at  its  close  his 
State  presented  him  with  a  sword. 

In  184Q.  he  went  to  Congress  again,  a  Whig 
from  a  Democratic  district.  In  1851  we  find 
Baker  in  a  strange  role — superintendent  of 
construction  of  the  Panama  railroad.  He  had 
a  heavy  force  of  men  under  him,  and  managed 
them   with   ability. 

In  June,  1852,  Baker  arrived  in  San  Fran- 
cisco, and  until  he  departed  for  Oregon,  eight 
years  later,  he  practiced  law  with  distinguished 
brilliancy  and  success.  In  1859  he  ran  for 
Congress  on  the  Republican  ticket.  That  was, 
without   exception,    the    most    interesting   year 


in  the  political  history  of  California.  It  was 
the  year  of  Broderick's  death — the  year  when 
the  great  Democratic  party  broke  in  two. 
Burch  and  Scott  were  the  regular  Buchanan 
administration  candidates  for  Congress.  The 
anti-Lecompton  or  Douglas  candidates  were 
Joseph  C.  McKibben  of  Sierra,  and  Judge 
Booker  of  Stockton.  The  Republican  candi- 
dates were  Colonel  Baker  and  P.  H.  Sibley. 
California  then  was  strongly  Democratic.  By 
a  tacit  understanding  between  the  Republic.ins 
and  Douglas  Democrats  those  two  elements 
coalesced  on  candidates  for  Congress,  and  cast 
their  united  vote  for  Baker  and  McKibben. 
It  was  of  no  avail.  Burch  and  Scott  were 
elected  by  a  heavy  majority.  But  Baker  made 
a  magnificent  canvass.  From  San  Diego  to 
Yreka,  his  eloquent  tongue  was  heard,  and 
never  before  or  since  have  our  hills  and  plains 
echoed  so  marvelous  a  voice.  The  Sacramento 
Union  employed  shorthand  reporters  to  ac- 
company the  orator  and  to  report  his  speeches 
verbatim.  It  was  in  that  campaign  that  Baker 
made  his  great  speech  at  Forest  Hill,  Placer 
county,  known  as  his  "Forest  Hill"  speech. 

Henry  Edgerton  declared  to  us  that  he  never 
heard  so  grand  a  speech.  It  may  be  found  in 
full  in  the  Sacramento  Union  of  August  2.3, 
1859. 

It  was  in  this  campaign  that  we  had  the 
pleasure  of  grasping  his  warm  hand  for  the 
first  time.  It  was  on  the  very  day  of  election, 
and  at  the  Third  ward  polls  in  Sacramento. 

Colonel  Baker  lost  this  fight.  As  he  after- 
wards publicly  declared,  his  hopes  and  his 
heart  were  crushed.  But  in  less  than  one  year 
from  the  time  of  that  Waterloo,  he  was  a  Sen- 
ator of  the  United  States.  Oregon  was  his 
constituenc}'. 

Baker  was  very  engaging  on  the  lecture  plat- 
form. Few,  if  any,  of  his  efforts  in  that  line 
were  reported  with  any  attempt  at  fullness. 
Indeed,  before  1859,  shorthand  was  a  very  rare 
accomplishment  in  California.  Notable  among 
his  lectures,  besides  that  on  "Books,"  were 
"The  Sea,"  "The  Plurality  of  Worlds"  and 
"Socrates."  These  he  treated  with  a  glowing 
imagination,  closing  the  last  with  a  noble  trib- 
ute to  Truth.  At  the  Burns'  centennial,  1859, 
he  was  very  happy. 

Another  fine  effort  was  his  oration  at  the 
dedication  of  Lone  ^lountain  cemetery  (where 
his  body  rests).  May  30,  1854.  Starr  King,  in 
his  touching  address,  six  years  later  over  Ba- 
ker's open  grave,  made  this  allusion:  "We 
have  borne  him  now  to  the  home  of  the  dead. 


History  of  the  Bench  and  Bar  of  California. 


433 


to  the  cemetery  which,  after  fit  services  of 
prayer,  he  devoted  in  a  tender  and  thrilling 
speech,  to  its  hallowed  purposes." 

A  thoughtful  and  polished  production  of 
Baker  was  his  oration  at  Broderick's  funeral, 
September  i8,  1859.  It  contains  his  stirring 
protest  against  duelling.  Never  was  man  so 
eloquently  mourned  as  Broderick.  Edgerton, 
we  have  seen,  considered  the  "Forest  Hill" 
speech  as  Baker's  best.  That  is  the  opinion 
of  Lieutenant  Governor  Nefif,  and  many  lead- 
ing men.  The  multitude  believe  the  Broderick 
oration  was  the  masterpiece  of  all.  Examina- 
tion and  comparison  will  demonstrate  that  the 
reply  to  Benjamin,  in  the  United  States  Sen- 
ate on  January  2,  1861,  was  Baker's  greatest 
and   best-sustained   efifort. 

He  was  freely  and  often  interrupted,  but 
stood  forth  the  prince  of  debaters,  and  pos- 
sessed of  great  and  varied  knowledge. 

But  for  beauty  of  expression  and  pleasing 
effect  his  Atlantic  Cable  address  of  September, 
1858,  eclipsed  all  others.  His  eloquence  is 
there  transporting,  as  poetry  and  music.  Baker 
suffered  a  severe  penalty  for  his  brilliant  de- 
fense in  the  celebrated  trial  of  Charles  Cora. 
For  a  time  he  was  socially  ostracized.  Society 
indicted  him.  It  would  never  have  visited  such 
censure  upon  an  advocate  of  ordinary  powers. 
Cora  had  killed  General  Richardson,  United 
States  marshal,  and  his  trial  for  the  crime 
commenced  January  8,  1856.  He  employed 
Colonel  Baker  to  defend  him,  but  public  opin- 
ion insisted  that  the  Colonel  should  leave  the 
accused  to  his  fate.  He  did  his  duty,  and,  in 
consequence,  such  was  the  inflamed  state  of  the 
public  mind,  the  eloquent  old  man  suddenly 
found  himself  like  a  stranger  in  a  strange 
land.  Day  after  day  the  newspapers  poured 
out  their  wrath  upon  his  head.  He  stood  his 
ground  and  "hung  the  jury."  Before  Cora 
could  l)c  put  on  trial  the  second  time  the  v\"'i- 
lance  committee  hanged  him. 

But  Baker  may  be  quoted  in  his  own  vindica- 
tion. In  defense  of  Cora  before  the  jury  he 
took  occasion  to  say : 

"The  legal  profession  is,  above  all  others, 
fearless  of  public  opinion,  candid  and  sympa- 
thetic. It  has  ever  stood  up  against  the  tyr- 
anny of  monarchs  on  the  one  hand,  and  the 
tyranny  of  public  opinion  on  the  other.  .Xnd 
if,  as  the  humblest  among  them,  it  becomes  me 
to  instance  myself.  I  may  say  it  with  a  bold 
heart — and  I  do  say  it  with  a  bold  heart — that 
there  is  not  in  all  this  world  a  wretch  so  Inmi- 
blc,    so    guilty,    so    despairing,    so    torn    with 


avenging  furies,  so  pursued  by  the  vengeance 
of  the  law,  so  hunted  to  cities  of  refuge,  so 
fearful  of  life,  so  afraid  of  death— there  is  no 
wretch  so  deeply  steeped  in  all  the  agonies  of 
vice  and  misery  and  crime — that  I  would  not 
have  a  heart  to  listen  to  his  cry,  and  find  a 
tongue  to  speak  in  his  defense,  though  around 
his  head  all  the  fury  of  public  opinion  should 
gather,  and  rage,  and  roar,  and  roll,  as  the 
ocean  rolls  around  the  rock.  And  if  I  ever 
forget,  if  I  ever  deny,  that  highest  duty  of 
my  profession,  may  God  palsy  this  arm  and 
hush  this  voice  forever." 

It  is  the  judgment  of  many  that  Baker  never 
stood  forth  as  the  orator  so  irresistibly  as  in 
the  old  American  Theatre  in  San  Francisco 
(where  now  stands  the  Halle'ck  block),  on  the 
night  of  October  27,  i860.  Perhaps  on  that 
occasion  he  excited  his  audience  to  a  pitch  of 
enthusiasm  and  delight  beyond  all  his  other  tri- 
umphs. One  year  before,  he  had  left  the  State 
—defeated  in  a  tremendous  struggle,  but  hope- 
ful and  free  of  soul.  He  was  now  on  his 
way  from  Oregon  to  Washington  to  take  his 
seat  as  a  Senator  of  the  United  States.  He 
seemed  inspired.  The  speech  was  fully  report- 
ed and  widely  distributed.  Delivered  witb- 
out  notes,  it  was  full  of  gems  that  will  snarkle 
forever,  as  this  : 

"Here,  then,  long  years  ago,  I  took  my 
stand  by  freedom,  and  where,  in  youth,  my 
feet  were  planted,  there  my  manhood  and  my 
age  shall  march.  And,  for  one,  I  am  not 
ashamed  of  freedom.  I  know  her  power;  I 
rejoice  in  her  majestv;  I  walk  beneath  her 
banner ;  I  glory  in  her  strength.  I  have  seen 
her  struck  down  on  a  hundred  chosen  fields 
of  battle.  I  have  seen  her  friends  fly  from 
her.  I  have  seen  her  foes  gather  around  her. 
I  have  seen  them  bind  her  to  the  stake.  I 
have  seen  them  give  her  ashes  to  the  winds, 
rcgathering  them  again  that  they  might  scatter 
them  yet  more  widely.  But  when  they  turned 
to  exult  I  have  seen  her  again  meet  them,  face 
to  face,  clad  in  complete  steel,  and  brandishing 
in  her  strong  right  hand,  a  flaming  sword,  red 
with    insufferable   light!" 

The  natural  grace,  the  manly  animation  of 
the  speaker,  the  way  he  suited  the  action  to 
tin-  word,  were  peculiarly  his  own.  and  full 
of  fascination.  He  appeared  to  brandish  in  his 
own  "strong  right  hand"  the  "flaming  sword, 
red  with  insufferable  light";  and  his  audience, 
tossed  on  the  mountain  waves  of  his  eloquence, 
seenud  to  see  him  standing,  unconquerable, 
the    especial    champion    of    freedom,    who,    no 


434 


Hislorx  of  the  Bench  and  Bar  of  California. 


more  to  be  bound  to  the  stake,  was  to  exult 
in  majesty  and  triumph  forever.  The  daily 
papers,  reporting  the  occasion,  told  of  one  indi- 
vidual in  the  audience,  who,  in  the  exuber- 
ance of  his  enthusiasm,  leaped  on  the  stage 
and  cheered  as  he  waved  the  flag  of  freedom 
before   the   throng. 

During  his  short  term  in  the  Senate  he  de- 
livered a  few  great  speeches,  in  one  of  which 
occurred  his  oft-quoted  tribute  to  the  press. 
He  also  quickly  won  a  high  reputation  for 
skill  in  debate,  while  his  reply  to  Benjamin 
in  January,  1861,  evidenced  great  logical  power 
as  well  as  majesty  of  expression. 

It  surprised  the  country  when  Baker  left  the 
Senate  for  the  "tented  field."  It  was  thought 
an  unnecessary  sacrifice.  But  Baker  was  under 
an  uncontrollable  impulse.  He  once  told  Sam- 
uel B.  Bell  that  eloquence  was  not  his  forte. 
Bell,  in  astonishment,  said:  "If  you  can  beat 
yourself  as  an  orator,  in  another  direction, 
you  are  certainly  an  extraordinary  man." 
"Well,  think  what  you  may,"  replied  Baker, 
"my  real  forte  is  my  power  to  command,  rule 
and  lead  men.  I  feel  that  I  can  lead  men  any- 
where." He  raised  a  regiment,  and  went  into 
this  his  third  warfare,  as  a  Colonel.  His  career 
in  the  field  was  even  shorter  than  his  time  in 
the  Senate.  He  fell  in  his  first  fight,  on  the 
2ist  day  of  October,  1861. 

Baker's  delivery  was  rapid,  his  voice  melo- 
dious, his  diction  polished,  his  gesture  free  and 
full  of  grace.  He  had  a  splendid  person,  an 
eye  full  of  fire,  a  noble  forehead  ;  and  nose  and 
mouth  and  chin  were  finely  chiseled.  His  hair 
had  long  been  very  gray.  On  the  platform  his 
manner  was  marked  by  perpetual  animation. 
He  loved  all  arts,  all  sciences.  His  imagination 
was  rich,  his  reading  wide,  his  memory  extra- 
ordinary. His  countenance  and  bearing  and 
his  gray  locks  recalled  the  picture  of  Thor- 
waldsen,  of  whom  it  was  said  that  .when  he 
moved  in  the  midst  of  a  crowd,  it  would  sep- 
arate as  if  it  felt  the  presence  of  a  superior 
being.  His  disposition  was  the  perfection  of 
amiability.  In  his  most  heated  forensic  and 
political  contests  be  was  never  betrayed  into 
saying  an  unmanly  thing  of  an  adversary.  He 
was  a  giant  before  a  jury.  So  great  were  his 
gifts  of  oratory  that  his  knowledge  of  the  law 
has  been  underestimated.  But  he  was  learned 
in  the  profession  of  his  choice — a  profession 
that  opened  so  broad  a  field  for  the  display 
of  his  varied  powers. 

Now  and  then,  and  here  and  there,  for  forty 
years  there  had  been  heard  the  promise  of  a 


l)ublication  of  Baker's  speeches,  lectures,  etc., 
in  book  form.  It  was  reserved  to  the  Editor 
of  this  History  to  issue  these  masterpieces  in  a 
pocket  edition  in  1899,  under  the  title  of  "Elo- 
quence of  the  Far  West."  There  had  been 
issued  a  "Sketch  of  the  Life  and  Public  Serv- 
ices of  Edward  D.  Baker,"  by  Joseph  Wallace, 
(Springfield,  Illinois,  1870).  Those  interested 
will  find  Baker's  best  political  speeches  in  our 
libraries,  in  the  files  of  the  old  Sacramento 
Union  under  dates  of  June  9-10;  July  2-13-15; 
August  23-24;  September  22-30 — all  in  the 
year  1859;  and  October  26,  and  November  5, 
i860.  His  "Atlantic  Cable  Oration,"  beautiful 
beyond  eulogium ;  his  moving  address  at  the 
burial  of  State  Senator  William  I.  Ferguson 
(who  fell  in  a  duel),  September  16,  1858;  his 
nobler  "Broderick  Oration,"  September  18, 
1859;  the  reply  to  Benjamin,  the  reply  to 
Breckinridge,  the  American  Theatre  speech, 
the  defense  of  Cora,  are  all  given  in  full  with 
prefatory  statements,  in  the  little  book,  "Elo- 
quence of  the  Far  West." 

A  broad  street  in  San  Francisco,  not  open  at 
Baker's  death,  but  now  lined  with  dwellings, 
bears  his  name.  It  will  recall  his  fame  when 
the  cemetery  where  his  mortality  lies  has  long 
ceased  to  be  the  city  of  the  dead  and  been 
added  to  the  domain  of  throbbing  life. 

Baker's  wife,  who  survived  him,  lies  by  his 
side  in  Lone  Mountain.  His  two  sons  died 
without  issue.  Two  widowed  daughters  are 
living   in   Seattle,  Washington. 

In  our  book  of  Baker's  Masterpieces  (1899) 
we  left  it  in  doubt  as  to  who  was  the  author 
of  a  fine  reference  to  the  orator — on  page  292 
thereof.  We  have  found  that  it  was  written 
by  Calvin  B.  McDonald.  He  has  been  dead 
many  years.  He  had  been  editorially  con- 
nected with  many  newspapers,  and  wrote  with 
much  strength  and  beauty.  The  passage  re- 
ferred to  was  in  an  article  devoted  to  reminis- 
cences of  Baker,  which  appeared  in  the  San 
Francisco  Post.    It  is  as  follows : 

"Some  years  ago  the  people  of  San  Francisco 
chased  away  an  eloquent  old  man,  who  took 
refuge  in  the  mountains  of  Nevada.  He  was 
afterwards  brought  back  from  the  sacrificial 
heights  of  Stone  River,  a  mangled,  speechless 
l)rophet  of  freedom,  and  fifty  thousand  people 
laid  him  tenderly  on  the  altitudes  of  Lone 
Mountain,  within  hearing  of  the  eternal  dirges 
of  the  ocean — while  his  glorious  words  echoed 
and  still  echo  in  the  valleys  and  mountains 
from  the  fountains  of  the  San  Joaquin  to  the 
sources  of  the  Columbia :  'Years,  long  years 
ago,  I  took  my  stand  by  freedom,  and  where 


History  of  the  Bench  and  Bar  of  California. 


435 


in  youth  my  feet  were  planted,  there  my  man- 
hood and  my  age  shall  march."  " 

The  reader  will  be  pleased  with  a  more 
lengthy  extract  from  the  same  article  by  Mc- 
Donald,  which   we  now  give: 

Colonel  Baker  went  to  Downieville  in  1858, 
to  try  a  great  water  case.  He  received  a  fee 
of  $13,000,  and  I  do  not  think  he  opened  a  law 
book  or  thought  much  about  his  argument  .un- 
til he  found  himself  before  the  bar.  There 
were  two  trials  of  the  suit.  During  his  first 
speech.  Baker  had  carried  away  the  jury,  in  a 
brilliant  apostrophe  to  Water,  which  would 
have  made  the  fortune  of  a  temperance  lec- 
turer. At  this  remote  time  I  am  unable  to 
say  what  relevancy  the  properties  of  sparkling 
water  had  to  the  title  of  the  water-ditch  in  dis- 
pute, but  the  great  advocate  easily  made  the 
jury  see.  On  the  second  triaK  when  Baker's 
turn  for  argument  came,  he  arose,  and  was 
just  coming  again  to  the  old  fountains  and 
cataracts,  when  the  opposing  counsel.  Colonel 
R.  H.  Taylor,  begged  permission  of  the  court 
to  just  suggest  that  since  Colonel  Baker's 
former  happy  speech,  a  number  of  honest  min- 
ers had  got  into  the  headwaters  of  the  stream 
and  had  riled  it  up,  so  that  it  did  not  sparkle 
a  bit,  and  the  former  magnificent  description 
of  the  upper  premises  had  no  longer  any 
proper  application.  The  court  and  spectators 
laughed ;  Baker  was  badly  done  up,  and  came 
verv  near  making  a  failure ;  lost  his  case,  and 
wouldn't  speak  to  Taylor  for  a  long  time  there- 
after. 

During;-  the  presidential  campaign  of  1856, 
when  the  Republican  party  made  its  first  ap- 
pearance, there  was  a  very  rough  mining  set- 
tlement of  some  five  hundred  people  not  far 
from  Downieville,  and  only  one  Republican 
was  known  to  exist  among  them.  All  the  rest 
were  Democrats,  and  most  of  them  of  a  very 
rude  character.  Baker  was  stumping  the  State 
for  the  new  party,  and  determined  to  go  to  this 
settlement,  and  make  a  speech,  although  he  had 
been  strongly  advised  that  it  would  be  danger- 
ous to  do  so.  The  mighty  sorcerer  was  never 
afraid  of  the  forbidding  faces  of  men.  and  he 
knew  how  to  wake  the  latent  divinity  in  the 
savagest  of  human  souls.  He  accordingly 
went;  and  not  without  some  misgivings,  I  ac- 
companied him.  When  we  were  entering  the 
village,  the  crowd  about  the  "Bascom  Grocery" 
of  the  place  hauled  down  the  American  flag  in 
token  of  hostility,  but  offered  no  further  per- 
sonal indignity.  Baker  did  not  seem  to  ob- 
serve the  flag  episode, and  after  dark  he 
mounted  a  carpenter's  bench  in  front  of  one 
of  the  vilest  grog-shops  of  civilization,  and 
commenced.  The  rough  audience  had  heard  of 
him,  and  they  wanted  to  hear  him  go.  Not  a 
word  was  spoken  in  the  crowd  :  not  a  sign  of 
applause  or  disapproval ;  and  never  did  orator 
address  an  audience  so  un.sympathetic  and 
stolid.  Baker  kent  on  a  half  hour  or  so  with- 
out any  perceptible  effect:  and  then,  seomins: 
to  be  gathering  all  his  energies  for  one  gigantic 
blow   to   split   the  obdurate   rock,   he  began   to 


pace  along  the  bench,  pouring  out  wave  after 
wave,  cumulative,  majestic,  and  overwhelming. 
At  length  something  like  a  tremor  ran  through 
the  silent  throng,  and  I  could  see  them  move 
uneasily  under  the  spell  of  the  enchanter. 
Some  of  them  had  belonged  to  Riley's  regi- 
ment in  the  Mexican  War.  Baker  had  found 
that  out,  and  looking  up  at  the  naked  flag- 
staff, he  referred  to  his  own  part  on  the  battle- 
fields of  Mexico,  and  then,  for.  full  ten  minutes, 
and,  as  it  appeared,  without  a  period  in  the 
structure  of  his  speech,  he  rolled  down  a  tor- 
rent of  impassioned  eloquence  upon  his  trans- 
fi.xed  audience, 

"Like  the  dashing,  silver-plashing 
Surges  of  San  Salvador," 

The  orator  standing  in  the  majesty  of  his 
power,  piling  it  up  higher  and  higher,  until 
some  one  in  the  crowd  gave  a  sort  of  agonizing 
yell,  as  though  unable  to  stand  it  any  longer — 
and  the  stubborn  rock  was  cleft  for  the  outflow 
of  the  waters.  The  men  yelled  for  I  don't 
know  how  long,  and  made  a  rush  upon  the 
frail  platform ;  Baker  and  his  bench  were 
overthrown,  and  when  the  orator  had  regained 
his  stand,  it  was  several  minutes  before  he 
could  be  heard,  and  go  on  with  his  triumphant 
speech.  I  have  never  seen  a  crowd  behave 
so  frantically  from  similar  emotions.  It  was 
another  scene  like  D'Arcy  IMagee's  description 
of  St.  Patrick's  conquest  of  the  Irish  on  the 
Hill  of  Tara,  and  there,  as  of  old,  the  Irish 
heart,  though  hid  in  a  rough  tabernacle,  showed 
its  inability  to  resist  the  influence  of  true  elo- 
quence, and  ever  after,  when  Baker  passed  that 
way,  the  Irish  miners  cheered  him  at  their 
work. 

******* 

We  saw  him  no  more — nothing  but  the  man- 
gled, soulless  clay  that  came  back  from  Ball's 
Bluff.  And  now,  when  the  landward  winds 
come  in  from  the  boundless  ocean,  to  grieve 
and  sob  among  the  nobler  monuments  that 
have  been  reared  to  the  ashes  of  lesser  men, 
the  Spirit  of  that  Freedom  which  he  wor'^hiped 
with  all  the  fervor  of  a  great  soul,  droops  be- 
S'ide  a  grave  almost  unmarked  by  gratitude  and 
love,  and  seems  to  utter  the  pathetic  interroga- 
tory of  the  dying  warrior  of  the  Allcghanies, 
"Who  is  there  to  mourn  for  Logan  ?" 


HUGH  C  MURR.VV. 


The  youngest  Justice  and  the  youngest  Chief 
Justice  who  ever  sat  upon  our  Supreme  bench 
was  Hugh  C.  Murray.  Born  in  St.  Louis, 
Missouri,  April  22.  1825,  of  Scotch  extraction, 
he  was  reared  at  .Alton.  Illinois,  where  he  re- 
ceived a  limited  education  and  read  law  in  a 
lawyer's  office.  When  twenty-one,  he  joined 
the  army  and  served  during  the  Mexican  War 
as  Lieutenant  in  the  Fourteenth  regular  in- 
fantry. -Xfter  that  war  be  returned  home  and 
was  admitted  to  the  bar.  but  at  once  set  out 


4315 


History  of  the  Bench  and  Bar  of  California. 


for  California.  Going  to  Panama  by  steamer, 
and  unable  to  get  a  better  passage,  he  took  a 
sailing  vessel  for  San  Francisco.  The  sailer 
proving  intolerably  slow,  he  got  off  with  others 
at  Cape  St.  Lucas  and  walked  the  long  distance 
thence  to  his  destination,  which  he  reached 
in  September,  1849.  He  at  once  commenced 
the  practice  of  law.  Quite  soon  he  was  very 
busy,  but  in  a  few  months,  the  legislature 
elected  him  one  of  the  Associate  Justices  of 
the  first  Superior  Court  of  the  City  of  San 
Francisco,  a  court  that  after  dispensing  justice 
for  a  few  years,  was  itself  dispensed  with  by 
act  of  law.  Murray  had  brought  with  him 
from  the  East  no  fame,  or  influence,  or  means, 
but  on  the  bench  of  the  old  Superior  Court  he 
displayed  so  broad  a  knowledge  of  law  and 
such  superior  qualities  as  a  Judge  that  his 
appointment  to  the  Supreme  bench  by  Gover- 
nor McDougal  in  October,  1851,  in  place  of 
Nathaniel  Bennett,  resigned,  was  a  fulfillment 
of  the  hearty  wish  of  the  bar.  He  became 
Chief  Justice  upon  the  resignation  of  Hon.  H. 
A.  Lyons  in  1852,  and  was  elected  his  own  suc- 
cessor by  the  Democrats.  In  1855  he  was  re- 
elected Chief  Justice  by  the  Native  American 
party.  He  died  of  consumption  in  Sacramento, 
while  still  Chief  Justice,  on  September  18,  1857. 
He  had  reached  that  high  station  at  the  a^e 
of  twenty-eight,  having  become  an  Associate 
Justice  two  years  earlier.  Murray  possessed 
a  patient  and  powerful  mind,  capable  of  the 
severest  investigation.  Judge  W.  T.  Wallace, 
who  was  attorney-general  when  Murray  died, 
declared  that  the  latter  was  gifted  with  an 
intellect  that  could  grasp  the  mightiest  subject; 
an  analysis  that  solved,  as  if  by  intuition,  the 
most  intricate  legal  problems.  His  associate 
on  the  Supreme  bench,  who  succeeded  him  as 
Chief  Justice,  testified  to  his  quick  perception, 
his  moral  courage,  his  justness,  his  frankness, 
and  fidelity,  and  declared  that  his  loss  was  irre- 
parable. He  was,  withal,  a  dignified  and  im- 
pressive speaker  on  the  stump.  In  his  day 
candidates  for  the  bench  were  not  exempted 
from  the  custom  of  active,  open  electioneering 
in  behalf  of  their  party  and  themselves.  We 
heard  Murray  on  the  stump  at  Sacramento  in 
1855.  His  utterance  was  distinct,  deliberate; 
his  voice  strong  and  very  agreeable  to  the  ear 
and  he  wore  an  easy  dignity  that  seemed  to 
reconcile  his  candidacy  to  his  surroundings. 
He  was  then  speaking  for  the  new  American 
party,  which  was  about  to  sweep  the  State. 
"Fellow-citizens,"  he  said,  "the  Whig  party  is 
dead,    and   has   been    dead    for    ages,    and    the 


Democratic  party,  if  not  dead,  is  in  the  last 
throes  of  expiring  agony."  This  sounded  very 
well,  indeed,  and  the  agony  part  was  given  in 
a  way  that  evoked  loud  laughter.  But  we  felt 
like  calling  on  the  ermined  orator  to  explain. 
His  words,  rolled  out  so  grandly,  were  neither 
true  of  the  one  party,  which  wasn't  quite  dead 
then,  nor  of  the  other,  which  isn't  dead  yet. 

Judge  Murray's  most  elaborate  opinion  was 
his  last — that  in  Welch  vs.  Sullivan,  reported 
after  his  death,  in  8  Cal.,  155.  Judges  Terry 
and  Burnett,  who  concurred  in  the  judgment, 
slightly  modified  it  at  the  next  term.  (See  8 
Cal.,  511. J 


JOHN  R.  McCONNELL. 

John  R.  McConnell  was  distinguished  above 
all  his  professional  brethren  in  the  new  West 
for  breadth  of  reading  and  his  fund  of  varied 
lore.  He  was  born  in  Kentucky  in  1826 — in 
the  same  year  with  McAllister,  Freelon,  Prin- 
gle  and  Patterson.  His  ancestry  was,  on  the 
paternal  side  Scotch-Irish,  and  on  the  mother's 
side  English.  He  was  the  twelfth  of  thirteen 
children.  When  he  was  seven  years  old  his 
father  removed  to  Illinois  and  settled  on  a 
farm  near  Jacksonville.  Losing  his  father  the 
following  year,  and  his  mother  two  years  later, 
he  returned  to  Kentucky  and  lived  in  the  fam- 
ily of  a  brother-in-law,  in  Bourbon  county,  un- 
til he  became  of  age.  In  Illinois  and  Kentucky 
he  attended  several  good  schools,  but  his  edu- 
cation was  principally  directed  and  his  char- 
acter molded  by  Professor  Vaughn,  who  after- 
wards moved  to  Cincinnati  and  became  a  cele- 
brated mathematician.  Under  this  professor, 
McConnell  attained  rare  excellence  in  mathe- 
matics, metaphysics  and  the  classics.  It  was 
said  of  him  that  "in  the  higher  mathematics 
especially  he  excelled,  and  nothing  seemed  to 
afford  him  more  pleasure  than  a  dash  into  the 
mysteries  of  curvilinear  and  conic  sections." 

Arrangements  were  being  made  looking  to 
his  appointment  as  cadet  at  West  Point,  when 
he  concluded  that  he  was  not  physically  capaci- 
tated for  a  soldier's  life,  and  turned  to  the  law, 
the  study  of  which  he  commenced  under  John 
Martin,  a  prominent  lawyer  of  Bourbon  county, 
Kentucky,  in  1844.  It  is  probable  that  no  stu- 
dent ever  took  up  the  study  with  greater 
enthusiasm,  or  pursued  it  with  more  loyalty 
and  zeal.  He  read  almost  incessantly,  and  be- 
ing a  man  of  fine  mind,  he  attained  a  profound 
knowledge    of    the    science.      Indeed,    he    re- 


History  of  the  Bench  and  Bar  of  California. 


437 


mained  a  student  through  life,  and  his  mind 
was  overfed.  For  a  short  period  he  was  at  the 
Transylvania  University,  where  he  had  the 
counsel  of  Judges  Wooley,  Robertson  and 
Thomas  A.  Marshall.  Ill-health  prevented  him 
from  completing  his  studies  at  this  institution. 

At  the  age  of  twenty-one  he  commenced  the 
practice  of  law  in  Illinois.  Two  years  later 
he  removed  to  Mississippi,  locating  at  Natchez. 
There,  while  struggling  to  secure  business,  he 
took  up  Justinian's  Institutes,  and  the  whole 
boay  of  civil  law,  to  which  he  gave  close  and 
severe  study. 

He  was  a  peripatetic  legal  philosopher.  His 
transitions  suggested  perpetual  motion.  Not 
only  was  he  a  traveler  through  life,  sojourning 
at  different  points  in  five  different  States,  but 
in  his  local  habitations,  in  home  and  office,  lie 
A'as  on  his  feet  almost  continually.  He  had  a 
passion  for  locomotion.  A.  A.  Sargent  has 
spoken  of  this  predilection  of  McConnell.  "He 
was  very  studious,"  said  Mr.  Sargent,  "and 
fond  of  old  and  curious  law.  He  used  to  wear 
a  bare  place  in  the  carpet  along  the  whole 
length  of  his  office,  where  he  paced  up  and 
down  reading  books.  His  methods  were  al- 
ways honorable  and  aboveboard,  and  despite 
his  overindulgence  in  stimulants,  he  was  held 
in  general  esteem." 

Of  course,  such  a  man  could  not  escape  the 
"gold  fever."  He  reached  California  in  1849, 
coming  overland,  one  of  his  companions  being 
that  daring  martial  spirit.  Colonel  Ned  San- 
ders, brother-in-law  of  Haggin  and  Tevis,  who 
was  with  Walker  in  Nicaragua,  and  who  was 
killed  in  the  Confederate  army.  McConnell 
settled  at  Placerville,  and  went  to  mining.  He 
found  already  on  the  ground  Frank  M.  Pixley, 
John  Heard,  and  many  others  who  since  be- 
came widely  known  in  law  or  letters.  There 
was  not  a  law  book  in  the  county.  "The  dis- 
cussions and  the  decisions  equally,"  said  Cax- 
ton,  "must  have  been  rather  crude  and  ill- 
digested,  but  we  have  reason  to  believe  that  the 
germ  of  the  entire  mining  jurisprudence  of 
California  sprang  from  those  early  delibera- 
tions." 

Early  in  1851  McConnell  removed  to  Nevada 
City  in  the  richest  mineral  region  of  the  state, 
and  opened  a  law  office.  His  accomplishments 
as  a  lawyer  soon  won  him  the  respect  of  an 
able  bar  and  secured  him  a  valuable  practice. 
In  the  estimation  of  many  he  led  (he  bar  of 
Northern  California.  "It  is  not  going  too  far 
to  assert,"  said  Caxton,  "that  the  briefs  and 
arguments  of  John   R.   McConnell   before  the 


Supreme  Court  did  more  toward  building  up 
the  mining  law  of  this  state  than  the  labors 
of  any  other  counselor  upon  this  coast.  To 
an  inexhaustible  fund  of  learning  he  added 
indomitable  industry  and  a  perception  quick, 
sure  and  intuitive.  Methodical  almost  to  for- 
mality, he  drilled  his  arguments  into  the  form 
of  logical  sequence  that  in  most  cases  amounted 
to  mathematical  demonstration.  But  his  mem- 
ory was,  perhaps,  the  most  remarkable  trait  of 
a  most  remarkable  mind.  It  seemed  to  be  ab- 
solutely infallible.  Piled  up  in  the  deep  reser- 
voirs of  his  capacious  intellect,  he  called  forth 
these  argosies  of  wealth  at  a  moment's  notice, 
and  launched  them  upon  the  tide  of  learning 
with  an  abandon  that  produced  amazement." 

With  his  vast  reading  and  retentive  memory 
it  is  not  strange  that  McConnell  failed  to  ac- 
quire a  reputation  for  originality.  His  mind 
was  continually  burdened  with  the  thoughts  of 
others.  He  was  constantly  quoting  or  referring 
to  great  men — in  argument  and  in  conversa- 
tiion.  He  took  great  delight  in  oral  discourse 
and  in  displaying  the  stores  of  his  lettered 
wealth.  Like  a  happy  song  bird  jumping  glee- 
fully from  bough  to  bough,  he  would  in  con- 
verse pass  over  the  whole  tree  of  human  knowl- 
edge. As  he  loved  to  talk,  so  he  demanded 
patient  listeners,  and  the  latter  always  had 
their  reward.  The  impression  of  manv  that 
McConnell  was  but  a  book  worm  or  a  liter- 
ary parrot,  is  not  well  founded — he  read  slow- 
ly, digested  what  he  took  in,  and  possessed 
great  logical  power.  His  voice  was  poor  and 
his  bearing  had  little  grace.  In  argument  he 
rarely  attempted  ornament — bottom  facts  were 
his  objective  point  always.  Neither  in  "shape" 
nor  "gesture"  was  he  "proudly  eminent."  He 
convinced  by  the  direct  action  of  his  brain. 

McConnell  had  considerable  experience  in 
public  life.  He  was  one  of  the  earliest  dis- 
trict attorneys  of  Nevada  county,  and  in  1853 
was  elected  attorney  general  of  the  State. 
Many  years  later  he  represented  Los  Angeles 
county  in  the  lower  branch  of  the  legislature. 
In  1861  he  ran  for  Governor  as  the  candidate 
of  the  southern  wing  of  the  Democracy,  and 
was  defeated  by  Leland  Stanford;  and  in  1864 
he  was,  with  Judge  E.  W.  McKinstry  and 
Judge  W.  C.  Wallace,  an  unsuccessful  candi- 
date for  the  supreme  bench  of  the  State  of 
Nevada. 

In  the  gubernatorial  contest  in  this  State 
in  1861,  the  total  vote  was  119,730 — Stanford 
(Republican)      receiving     56,035,     McConnell 


438 


History  of  the  Bench  and  Bar  of  California. 


(Administration    Democrat)     32,750,    Conness 
(Douglass  Democrat).  30,944. 

During  his  term  as  district  attorney,  one 
Miller  had  assaulted  a  clergyman,  and  receiv- 
ing an  unexpected  thrashing  for  his  temerity 
had  the  reverend  man  arrested  for  battery. 
McConnell,  learning  the  facts,  declined  to  pros- 
ecute. The  justice  before  whom  the  preacher 
was  brought — Doughterty,  "Old  Zeke" — di- 
rected the  sheriff  to  call  McConnell.  "Some- 
body has  got  to  prosecute  this  man,"  said  the 
justice,  "or  I'll  let  him  go."  McConnell  ap- 
peared and  made  a  quasi  prosecution.  Tlie 
case  being  submitted,  the  justice  said:  "I 
think  this  was  a  fair  fight.  Miller  commenced 
it  and  got  a  good  licking.  It  was  good  for 
him.     The  prisoner  is  discharged." 

Air.  Sargent  tells  this  anecdote  of  IMcCon- 
nell's  early  professional  life:^ 

He  had  a  client,  Dr.  W.,  whose  litigation  was 
often  of  an  important  character.  On  a  trip 
below  the  doctor  had  borrowed  $1,000  of  one 
of  the  supreme  judges.  After  judgment  in  the 
district  court  in  a  certain  case  which  was  about 
to  be  appealed  to  the  Supreme  Court,  McCon- 
nell said  to  Dr.  W.,  "I  wish  you  would  pay 
that  $1,000;  we  have  got  to  get  to  the  Su- 
preme Court."  "Mac,"  said  the  doctor,  "you 
don't  know  anything  about  human  nature.  If 
I  were  to  pay  that  money,  the  Judge  would 
have  no  further  interest  in  me." 

McConnell  in  1853  defended  one  George  W. 
Hall,  tried  on  a  charge  of  murder.  The  al- 
leged victims  were  Chinamen,  and  the  ac- 
cused was  convicted  on  Chinese  testimony. 
McConnell  made  a  point  as  to  the  admissi- 
bility of  this  kind  of  evidence.  The  State  law 
then  declared  that  "No  Indian  or  negro  shall 
be  allowed  to  testify  as  a  witness  in  any  action 
in  which  a  white  person  is  a  party."  McCon- 
nell took  the  position  that  the  word  "Indian," 
in  the  sense  intended  by  the  legislature,  applied 
io  the  whole  Mongolian  race,  and  therefore 
Chinamen  were  not  competent  to  testify  against 
white  persons.  This  view  was  sustained  by 
Chief  Justice  Murray  in  a  very  interesting 
opinion,  in  which  Judge  Heydenfeldt  con- 
curred, and  from  which  Judge  Wells  dissented. 

McConnell  was  attorney  general  during  the 
years  1854-55.  During  this  period  he  made  a 
visit  to  the  East  and  South,  leaving  the  office 
in  charge  of  Hon.  William  M.  Stewart.  Mr. 
Stewart  was  his  law  partner,  and  had  pre- 
pared himself  for  the  profession  in  his  private 
•office. 

McConnell    removed   to   Virginia    City,    Ne- 


vada, in  1863,  at  the  height  of  the  excitement 
over  the  Comstock  lode.  He  was  there  about 
two  years,  during  which  period  we  had  a  brief 
partnership  with  him,  and  was  daily  enter- 
tained by  his  learned  talk.  He  then  adhered 
to  the  habit,  which  Sargent  observed  in  early 
days,  of  walking  while  reading.  His  thinking 
was  done  on  his  feet.  One  of  his  peculiarities 
was  to  ignore  all  blank  forms  used  in  plead- 
ings and  conveyancing.  He  despised  all  books 
of  forms,  and  the  volume  entitled  "Every  Man 
His  Own  Lawyer,"  filled  him  with  loathing. 
He  prepared  his  papers  with  the  statutes  and 
the  reports  before  him,  and  it  was  a  keen  law- 
yer who  could  find  in  them  a  flaw.  But  he  at- 
tracted a  very  limited  clientage  in  Virginia 
City.  He  was  not  often  seen  at  the  bar,  and 
was  not  connected  with  any  of  the  great 
mining  cases  which  brought  extensive  fame 
and  fortune  to  his  old  partner,  Stewart.  He 
was  then  little  more  than  a  shadow  of  his 
former  self,  having  become  a  slave  to  opium. 
Returning  to  California,  McConnell  resided 
and  practiced  at  different  times  in  Nevada, 
Sacramento  and  Los  Angeles.  He  was  three 
times  married — first,  to  Miss  Rebecca  Cross, 
of  Nevada  City,  California ;  second,  to  Miss 
Ann  Eliza  Moore,  of  Fayette  county,  Ken- 
tucky ;  lastly,  to  Miss  Sallie  B.  Darby,  eldest 
daughter  of  Dr.  J.  Curtis  Darby,  of  Lexin"-- 
ton  county,  Kentucky,  who  survived  him.  He 
died  in  Denver,  Colorado,  in  1879,  leaving  a 
small  estate. 


C.    TEMPLE  EMMET. 

Christopher  Temple  Emmet  was  born  in 
New  York  city  in  1823.  He  was  the  son  of 
Robert  Emmet,  who  was  a  distinguished  law- 
yer of  that  city  and  a  Judge  of  the  Common 
Pleas ;  and  was  a  grand-nephew  of  the  great 
Irish  patriot,  whose  name  his  father  bore. 
Mr.  Emmet  was  educated  at  Flushing,  Long 
Island,  in  the  school  of  Bishop  Ha%yks,  who 
was  the  father  of  W.  W.  Hawks,  once  a  State 
senator  from  San  Francisco,  a  man  of  brilliant 
parts,  being  a  polished  and  animated  public 
speaker,  who  died  of  consumption  in  Honolulu, 
many  years  ago.  Hon.  Ogden  Hoffman  was 
among  Mr.  Emmet's  schoolmates.  From 
Flushing  he  went  to  the  University  of  Virginia, 
chiefly  to  study  medicine  under  his  uncle.  John 
P.  Emmet,  a  medical  professor  there.  Having 
graduated  as  a  physician  and  surgeon,  he  re- 
turned to  New  York  city,  but  finding  medical 
practice  distasteful  to  him,  he  studied  law  in 


History  of  the  Bench  and  Bar  of  California. 


439 


his  father's  office.  Shortly  after  being  admit- 
ted as  a  counsellor  at  the  bar,  having  three 
\ears  earlier  been  admitted  as  an  attorney,  he 
started  for  California  in  a  sailing  vessel.  His 
cousin,  John  Thomas  Emmet,  his  brother,  and 
Herman  Le  Roy,  were  with  him.  They  suf- 
fered shipwreck,  and  were  detained  at  Rio  de 
Janeiro  six  months.  His  cousin  and  brother 
returned  to  New  York. 

C.  Temple  Emmet  commenced  law  practice 
in  San  Francisco  in  1849.  He  became  counsel 
for  some  English  capitalists,  who  went  into 
contracts  for  leasing  and  operating  mines  on 
;i  large  scale,  with  costly  machinery,  near 
Grass  Valley.  Tliere  were  several  companies 
of  these  moneyed  Englishmen,  at  the  head  of 
one  of  them  being  Sir  Henry  Hunter.  They 
died  out  by  degrees  in   a  few  years. 

Mr.  Emmet  defended,  before  Alcalde  Geary 
and  a  jury,  the  first  man  ever  legally  tried  here 
for  murder,  having  been  appointed  by  Geary 
to  that  duty.  The  man  was  hung.  Among 
those  with  whom  Mr.  Emmet  practiced  law  in 
partnership,  were  Charles  T.  Botts  and  Alex- 
ander Campbell.  He  was  one  of  the  origina- 
tors of  the  old  French  Bank,  and  for  a  time 
was  the  real  manager  thereof,  although  not 
named  as  such.  In  1867  he  left  the  bar  with 
a  fortune  of  a  million  dollars,  and  went  into 
the  California  &  Oregon  railway  project,  in- 
augurated by  Ben  Holladay.  In  that  interest 
he  made  several  visits  to  Washington  city. 
That  enterprise  stripped  him  of  his  fortune. 
Meanwhile  he  had  married,  late  in  life,  at 
New  Rochelle,  N.  Y.,  a  Miss  Temple,  a  rela- 
tive. The  lady  survived  him,  with  five  daugh- 
ters and  a  son. 

Mr.  Emmet  belonged  strictly  to  the  conser- 
vative type  of  character.  This  is  said  simply 
to  state  his  class.  Of  course,  both  radicals 
and  conservatives  are  essential  to  the  wealth 
and  welfare  of  the  state  and  society.  His  con- 
servatism even  entered  into  his  dress — he  clung 
to  his  old-style  English  shoe  and  the  other  pe- 
culiarities of  attire  of  earlier  days  and  older 
lands,  refusing  to  sacrifice  his  ideas  of  com- 
fort to  fashion.  He  was  one  of  those  who  live 
"with  their  faces  turned  nobly  to  the  past." 

An  instance  of  his  great  will  power  is  known 
to  the  few  who  were  his  close  friends.  In  the 
early  years  of  the  State  he  was  a  high  liver, 
but  did  not  visit  bar-rooms — he  used  to  love 
his  wine,  cigars  and  cards  in  the  company  of 
men  of  strong  purse  and  parts,  the  monarchs 
of  our  bar  and  exchequer.  At  cards  he  met 
great  losses.     Once,  having  made  a  "big  win- 


ning," he  threw  cards  away  forever.  After  his 
marriage,  he  eschewed  liquor  in  every  shape, 
except  when  an  honest  physician  prescribed  it. 
and  smoked  very  little.  He  declared  that  the 
most  important  lesson  that  could  be  impressed 
on  a  child's  mind  was  the  necessity  of  rigid 
.self-denial.  He  practiced  it  always,  and  illus- 
trated  its   fruits. 

In  1873  Mr.  Emmet  resumed  law  practice 
in  San  Francisco,  and  soon  o-athered  a  valu- 
able business,  becoming  attorney  for  leading 
banks  and  capitalists  and  the  British  consul. 
In  law  business  he  was  usually  a  counsellor, 
and  kept  to  his  chambers.  He  avoided  politics, 
had  few  intimates,  was  reserved  and  sedate. 
He  was  no  flatterer  or  simperer,  and  could 
not  be  amused  with  nonsense.  He  understood 
his  business  thoroughly,  was  really  a  master  of 
his  science;  painstaking;  had  good  judgment, 
and  was  an  invaluable  adviser.  He  shrank 
from  the  noise  and  glimmer  of  public  trials 
and  public  life.  Emmet,  as  a  speaker,  was 
cool,  cogent,  logical;  he  touched  no  pyrotech- 
nics; his  expression  was  severely  chaste;  he 
was  at  his  ease  with  Greek,  Latin,  French  and 
Spanish,  and  was  generally  an  accomplished 
scholar. 

A  few  months  before  his  last  illness  began, 
he  moved  into  his  new  homestead  near  San 
Rafael,  his  grounds  comprising  sixty  acres. 
Fond  of  fresh  air,  he  was  an  athlete  in  physi- 
cal exercises.  In  person  he  was  large  and 
finely  built,  with  blue  eyes,  light  complexion, 
light  hair,  iron-gray  whiskers,  and  English  in 
appearance  and  style  of  dress,  as  well  as  in 
tastes.  He  had  more  domestic  animals  and 
servants  about  his  house  than  almost  any  other 
man  in  the  State.  Fidelity  to  his  profession 
and  friends,  gentleness  to  his  dependents,  and 
devotion  to  his  family,  marked  his  life.  He 
was  a  man  of  generous  soul  and  good  example. 
He  died  while  on  a  visit  to  the  East  in  Feb- 
ruary, 1884.  His  remains  were  brought  back 
by  his  family  and  interred  at  his  home  in 
-Marin   county. 


EUGENE  CASSERLY. 

Eugene  Casserly  was  born  in  the  county  of 
Westmeath,  Ireland,  in  1822.  His  family  was 
a  branch  of  the  O'Connors,  and  was  once 
known  as  the  O'Connor  Casserlys  from  a 
marked  personal  characteristic  in  one  of  his 
progenitors.  His  father  and  grandfather  were 
school  teachers.  The  latter  was  a  leader  in  the 
rebellion   of    1798.      His   participation    in    that 


440 


History  of  the  Bench  and  Bar  of  California. 


fruitless  struggle  ruined  him  in  fortune,  and 
nearly  cost  him  his  life. 

Eugene  Casserly  came  to  the  United  States 
at  the  age  of  two  years,  with  his  father  and 
mother.  The  father,  Patrick  Sarsfield  Cas- 
serly, was  a  true  Irishman.  Landing  in  New 
York,  he  went  straight  from  ship  to  court- 
room and  declared  his  intention  to  become  a 
citizen  of  the  United  States,  leaving  the  mat- 
ter of  lodgings  to  be  attended  to  afterward. 
Patrick  Sarsfield  Casserly  was  a  scholar.  His 
classical  attainments  were  great,  and  his  in- 
telligence of  a  superior  order.  He  opened,  in 
New  York  city,  the  "Chrestomathic  Institute." 
Many  of  the  pupils  of  this  school  are  now 
scattered  over  California.  The  elder  Cas- 
serly was  "like  classic  Hallam,  much  renowned 
for  Greek."  He  introduced  Eugene  to  the 
noble  tongue  at  four  years  of  age.  He  was  a 
severe  man  and  punished  refractory  scholars 
with  delightful  sang  froid.  It  is  told  of  him 
that  when  he  found  an  offense  had  been  com- 
mitted and  was  not  able  to  discover  the  culprit, 
he  would  impose  upon  Eugene  vicarious  pun- 
ishment. 

The  son,  like  the  father,  became  an  excellent 
classical  scholar.  At  nineteen  he  aided  his 
father  in  the  preparation  of  "Jacob's  Greek 
Reader,"  a  standard  text-book.  He  aided  in 
the  conduct  of  the  school  until  he  attained  his 
twentieth  year,  when  he  left  home  and  entered 
for  himself  upon   life's  battle. 

His  promising  qualities  had  attracted  the  at- 
tention of  Dr.  Hughes,  then  a  bishop,  after- 
wards Catholic  archbishop  of  the  State  of 
New  York.  In  that  reverend  man  he  found  a 
friend  and  adviser.  He  found  the  same  in 
Charles  O'Conor. 

He  had  studied  law  and  had  been  admitted 
to  practice  in  1844,  but  turned  to  the  press  for 
a  time.  He  soon  became  editor  of  the  Free- 
man's Journal,  and  a  contributor  to  several  pa- 
pers in  New  York,  Boston  and  Washineton. 
One  of  the  journals  for  which  he  wrote  was 
the  famous  old  Democratic  Review.  Who 
published  it?  Henry  G.  Langley,  afterwards 
the  compiler  of  the  San  Francisco  "Directory." 

Mr.  Casserly  had  just  determined  to  give 
his  whole  attention  to  his  "jealous  mistress," 
the  law,  when  the  California  gold  fever  broke 
out.  He  had  studied  law  in  the  office  of  John 
Bigelow. 

During  this  brief  practice  at  the  New  York 
bar,  Mr.  Casserly  was  elected  to  the  place 
of  corporation  counsel,  or  what  we  call  here 
city  attorney.     This  was  a  very  profitable  and 


responsible  position,  and  Mr.  Casserly  was 
called  to  fill  it  at  the  age  of  twenty-seven.  At 
this  age  he  became  the  legal  adviser  of  our 
greatest   city. 

Mr.  Casserly  arrived  in  California  in  August, 
1850.  A  few  months  later  (December  S,  1850), 
he  formed  a  journalistic  partnership  with  Mr. 
Benjamin  R.  Buckalew,  and  started  the  Pub- 
lic Balance,  a  daily  paper,  under  the  firm  name 
of  Casserly  &  Co.  This  partnership  soon  dis- 
solved— in  truth,  the  two  partners  quarreled. 
And  Mr.  Casserly,  on  January  18,  1851,  com- 
menced the  publication  of  the  True  Balance. 
He  soon  resolved  to  abandon  journalism  for- 
ever, and  to  renew  legal  practice  in  earnest. 
For  thirty  years  thereafter  he  followed  his 
profession  continuously,  and  with  extraordi- 
nary  success. 

On  May  i,  1851,  the  legislature  elected  Mr. 
Casserly  State  printer.  The  then  incumbent  of 
the  office  was  Mr.  George  K.  Fitch,  after- 
wards of  the  San  Francisco  Bulletin.  Mr. 
Fitch  refused  to  vacate  the  office,  and  litiga- 
tion followed.  The  case  w^ent  to  the  Supreme 
Court,  and  is  reported  in  full  in  the  first  vol- 
ume of  California  Reports.  One  of  the  ablest 
briefs  in  all  the  reports  is  there  to  be  found, 
written  by  Mr.  Casserly,  who  secured  the  place 
to  which  he  had  been  elected. 

In  December,  1867,  Mr.  Casserly  was  elected 
a  United  States  Senator  from  California,  for 
the  term  of  si.x  years  from  March  4,  1869. 
In  the  fall  of  1872,  having  served  about  two- 
thirds  of  his  six  years'  term,  he  resigned  his 
seat  in  the  Senate.  It  should  have  been  stated 
that  when  the  Democratic  party  divided  at  the 
outbreak  of  th?  Civil  War,  Mr.  Casserly  was 
one  of  the  mosl  advanced  leaders  of  the  war 
party. 

Leaving  the  Senate,  he  resumed  law  prac- 
tice in  San  Francisco,  and  continued  business 
in  a  quiet  way  for  a  few  years,  when  he  re- 
tired permanently  from  political  and  profes- 
sional  life. 

An  intimate  friend  once  described  him  as 
"a  man  of  medium  height,  with  a  well-knit 
frame  and  a  clear,  deep-set.  brown  eye.  The 
size  and  conformation  of  his  head  indicate 
a  large  and  well-balanced  brain.  His  tempera- 
ment is  ardent,  yet  well  restrained.  His  hair 
is  prematurely  white.  His  private  life  is  as 
spotless   as    his   public   character." 

In  1854,  at  San  Francisco,  Mr.  Casserly 
married  the  only  sister  of  Mr.  John  T.  Doyle. 
He  died  at  .San  Francisco,  on  the  14th  day  of 
June.   1883.     His  widow  is  still  living  in  that 


History  of  tJie  Bench  and  Bar  of  California. 


441 


city,  and  abo  their  son,  John  B.  Casserly,  who 
is  an  attorney-at-law  and  a  member  of  the 
Board  of  Education. 


O.   C.   PRATT. 


O.  C.  Pratt  was  born  in  Ontario  county, 
New  York,  on  the  24th  day  of  April,  1819.  In 
the  local  public  schools  and  academies  he  ac- 
quired much  knowledge  of  the  classics  and 
mathematics,  and  was  a  very  good  English 
scholar  at  the  age  of  seventeen.  In  1837  he 
entered  the  United  States  Military  Academy 
at  West  Point,  as  a  cadet  by  an  appointment 
of  President  Jackson.  He  remained  there  two 
years.  He  had  but  little  taste  for  military 
studies,  except  when  connected  with  the  higher 
mathematics.  He  resigned  his  cadetship  with 
a  purpose  of  preparing  himself  for  the  bar. 
He  read  law  in  the  office  of  Samuel  Stevens, 
a  bar  leader  of  Albany,  and  being  admitted 
to  the  Supreme  Court  of  the  State  after  two 
years'  study,  he  began  the  practice  at  the  age 
of  twenty-one  at  Rochester.  He  formed  the 
acquaintance  there  of  Fletcher  M.  Haight,  who 
was  afterwards  a  United  States  Judge  in  Cali- 
fornia, and  became  his  partner.  He  removed 
to  Galena,  111.,  in  1843.  There,  in  addition  to 
a  fine  law  practice,  he  acquired  considerable 
reputation  as  a  public  speaker  on  the  Demo- 
cratic side  in  the  presidential  campaign  of 
1844.  In  1847  he  was  a  member  of  the  con- 
vention, which  revised  the  constitution  of  Illi- 
nois. In  the  following  year  he  accepted  a  com- 
mission under  the  Federal  government  to  in- 
vestigate certain  charges  against  an  army  of- 
ficer at  Mann's  Fort,  on  the  Arkansas  river. 
He  went  to  that  place,  and,  after  reporting 
that  the  charges  were  not  sustained,  was  re- 
quested by  the  government  to  proceed  to  Mex- 
ico, California,  and  Oregon,  as  a  confidential 
agent  of  the  government  in  certain  matters. 
With  an  escort  of  sixteen  men,  he  crossed 
the  plains,  having  many  brushes  with  the 
hostile  savages,  and  arrived  at  Los  An- 
geles as  early  as  August,  1848.  He  visited 
San  Jose  and  San  Francisco,  and  proceeded 
to  Oregon,  where  he  assumed  the  office  of 
Associate  Justice  of  the  Territorial  Supreme 
Court,  to  which  President  Polk  had  appointed 
him.  His  colleagues  had  not  yet  arrived  from 
the  East,  and  he  was  thus  the  pioneer  Judge  of 
Oregon. 

Judge  Pratt  removed  to  San  Francisco  in 
June,  1856.  He  there  formed  a  partnership 
with  Alexander  Campbell,  who  had  been  prom- 
inent at   the  bar   in   Oregon.     His   partnership 


lasted  three  years.  He  was  Judge  of  the  old 
Twelfth  District  Court  for  the  term  which 
expired   December,   1869. 

Judge  Pratt  became  a  man  of  large  wealth. 
The  foundation  for  it  was  laid  in  this  way, 
according  to  one  of  Bancroft's  biographical 
works  :  During  a  trip  from  Portland  to  San 
Francisco,  in  company  with  Captain  Crosby, 
it  chanced  that  a  discussion  arose  as  to  what 
would  be  the  probable  price  of  lumber  on  their 
arrival  in  the  latter  city.  Pratt  suggested  that 
a  cargo  should  be  worth  at  least  twenty-five 
dollars  a  thousand.  "I  wish  you  would  guar- 
antee me  that  figure,"  replied  his  companion. 
"Well,"  rejoined  the  other,  "there  is  no  reason 
why  I  should  guarantee  you  anything,  but  it 
seems  to  me — and  here  he  gave  his  reasons — 
that  lumber  ought  to  be  worth  there  when  we 
arrive,  fully  twenty-five  dollars  a  thousand." 
After  some  further  conversation,  Crosby  asked 
whether  he  would  purchase  from  him  the  cargo 
on  board  when  laid  down  at  San  Francisco  at 
twenty  dollars  a  thousand.  "Yes,"  said  Judge 
Pratt;  and  thereupon  a  contract  to  that  effect 
was  drawn  up  and  signed  by  both  parties. 

On  reaching  her  destination,  the  vessel 
was  boarded  by  Captain  Folsom  and  W.  D.  M. 
Howard,  the  former  of  whom,  as  purchasing 
agent  for  the  United  States  government,  of- 
fered him  $250  a  thousand  for  the  cargo.  It 
was  declined,  as  was  also  a  still  higher  offer 
made  by  Mr.  Howard,  and  the  lumber  was 
finally  sold  at  $400  a  thousand. 

The  Judge  bought  six  square  leagues  of  rich 
alluvial  land  in  Butte  and  Colusa  county,  and 
went  to  farming  and  cattle-raising  on  a  large 
scale.  At  the  end  of  his  term  as  District 
Judge  at  the  close  of  1869,  he  was  one  of  the 
candidates  of  the  Republican  party  for  Supreme 
Judge,  but    was  defeated  with  his  party. 

In  1875  his  vvife  obtained  a  divorce  from  him 
in  San  Francisco.  She  asked  for  a  division  of 
his  property.  George  W.  Tyler  was  her  attor- 
ney, and  Joseph  P.  Hoge  was  attorney  for 
Judge  Pratt.  Tlie  latter  made  only  a  formal 
opposition,  and  Mrs.  Pratt  was  awarded  prop- 
erty worth  $700,000.  Tyler  fixed  his  fee  at 
$10,000,  which  she  refused  to  pay.  A  jury 
awarded  him  this  amount,  and  Tyler  filed  an 
enormous  cost  bill.  Mrs.  Pratt  paid  the 
judgment  with  costs,  on  the  advice  of  Samuel 
M.  Wilson.  The  parties  then  had  three  grown 
children.  In  1877,  ^^  New  York  city,  Judge 
Pratt  married  his  second  wife,  Mrs.  L.  E. 
Jones,  of  San  Francisco.  There  was  one 
child  of  this  marriage,  a  son.     The  Judge  was 


442 


History  of  the  Bench  and  Bar  of  California. 


a  man  of  very  wide  information,  of  great  per- 
sonal and  professional  pride,  was  a  most  en- 
tertaining talker,  and  had  a  somewhat  haughty 
carriage.  He  died  at  San  Francisco,  on  Octo- 
ber 24th,  i8gi,  aged  seventy-two  years  and  six 
months.  His  estate  was  worth  about  one  mil- 
lion  dollars. 


ELISHA   COOK. 

Elisha  Cook  was  "a  burning  and  a  shining 
light"  at  tl:e  San  Francisco  bar  for  twenty 
years.  It  has  been  the  fortune  of  few  men 
in  California  to  win  such  lasting  and  dis- 
tinguished   celebrity.      When 

"The  mossy  marbles  rest 
On  the  lips  that  he  has  pressed 

In  their  bloom ; 
And  the  names  he  loved  to  hear 
Have  been  carved  for  many  a  year 

On   the   tomb," 

A  learned  profession  will  still  unite  to  keep 
his  memory  green.  His  argument  and  conduct 
of  great  cases  have  been  preserved  in  imperish- 
able print,  and  will  be  studied  and  admired  in 
remote  eras.  Too  soon  was  he  removed  from 
the  broad  field  of  his  triumphs.  His  hands 
were  full,  his  children  were  not  reared,  he 
had  not  known  surcease  from  toil,  nor  per- 
fected the  plans  of  his  life  when  his  work  was 
stopped.  But  so  active  was  his  career,  so 
crowded  with  masterly  performances,  so  re- 
warded by  success,  so  marked  by  exhibitions 
of  unbending  will  and  sense  of  duty,  that  the 
record  which  he  left  behind  was  at  once  re- 
markable and  unique,  peculiarly  worthy  of 
study,  and  stretched  over  a  most  eventful  pe- 
riod. 

He  was  born  in  Montgomery  county,  New 
York,  in  the  Mohawk  valley,  August  7,  1823. 
He  was  one  of  a  family  of  bar  leaders,  trained 
his  eldest  son  to  the  law,  and  was  another 
contribution  by  the  bar  of  New  York  to  that 
of  California.  His  oldest  brother,  Eli  Cook, 
long  headed  the  bar  of  Buffalo,  where  he  was 
mayor  for  two  terms.  Eli  Cook  also  came  to 
California  in  1849,  and  decided  to  locate  in 
San  Francisco.  He  returned  to  Buffalo  to 
settle  up  his  business.  While  engaged  in 
doing  so,  new  business  of  great  value  rolled 
in  upon  him,  which  he  could  not  refuse  to  ac- 
cept without  seeming  to  throw  away  a  grand 
opportunity.  He  soon  found  himself  in- 
trenched in  Buffalo  more  firmly  than  ever.  A 
gentleman  who  saw  him  in  New  York  city, 
on  his  way  back  to  Buffalo,  describes  him 
as   being   nearly    six    feet    two   inches    tall,    of 


splendid  presence,  witty  speech,  and  engaging 
manners,  and  a  leader  of  men  as  well  as  of, 
his  profession.  He  died  there  many  years  ^ 
ago,  and  his  professional  mantle  happily  fell 
upon  his  brother,  Josiah,  the  fourth  son,  who 
has  long  had  a  fine  practice  at  Buffalo. 

Elisha  Cook  was  graduated  from  the  Man- 
lius  Academy,  at  which  he  was  distinguished 
and  complimented  for  his  industry  and  alert- 
ness of  mind.  On  leaving  the  academy  he  was 
invited  by  his  brother  Eli  to  Buffalo,  and  ad- 
vised to  study  law.  He  studied  law  in  his 
brother's  office  for  one  year.  He  was  then 
only  sixteen,  and  conceived  the  idea  that  he 
was  not  adapted  to  the  legal  profession.  After 
trying  mercantile  life  a  short  time,  he  returned 
to  his  brother's  office  and  resumed  legal  stud- 
ies. 

In  due  time  he  was  admitted  to  practice,  and 
for  awhile  was  in  partnership  with  Mr.  Dan- 
iels, a  rising  young  attorney.  Judge  Nathaniel 
Bennett  was  then  in  partnership  with  Eli  Cook. 
He  afterwards  became  a  Supreme  Judge  in 
California,  and  Mr.  Daniels  won  the  same  dig- 
nity in  New  York.  When  Judge  Bennett  re- 
moved to  California  Eli  and  Elisha  Cook  prac- 
ticed together  for  a  short  time  under  the  firm 
name  of  E.  &  E.  Cook. 

Judge  Bennett  had  been  in  California  only 
a  few  months  when  Elisha  Cook  determined 
to  follow  his  example.  At  the  age  of  twenty- 
seven,  the  latter  left  his  mother  and  relatives 
and  gave  up  a  good  business  and  flattering 
prospects,  under  the  impulse  of  the  gold  fever. 
He  arrived  here  early  in  1850,  and  settled  in 
San  Francisco,  where  he  lived  and  followed 
law  practice  until  his  death,  which  occurr-^-d 
in  that  city  December  31st,  1871.  He  was  a 
man  of  great  professional  pride  and  ambition, 
and  in  removing  to  San  Francisco  he  aimed  to 
win  the  leading  place  at  that  bar,  correspond- 
ing to  that  held  by  his  brother  in  Buffalo. 
Joseph  Cook,  since  so  prominent  at  the  Buffalo 
bar,  also  came  to  San  Francisco  some  years 
later,  practiced  in  partnership  with  his  brother 
Elisha  for  a  short  time,  but  failing  health  com- 
pelled  his   return   East. 

Mr.  Cook  left  a  widow  and  nine  children. 
His  eldest  son,  Hon.  Carroll  Cook,  is  a  Judge 
of  the  San  Francisco  Superior  Court.  William 
Hoff  Cook,  of  the  San  Francisco  bar,  is  his 
second  son. 


HENRY  H.  BYRNE. 

Henry  Herbert  Byrne,   whose  period  at  the 
San   Francisco  bar  covered  the  eventful  year.s 


Hislorx  uf  the  Bench  and  Bar  of  California. 


443 


1850-71,  was  born  in  New  York  city.  His 
father  was  Irish,  and  his  mother  English.  He 
was  well  educated  at  a  French  Catholic  col- 
lege in  Canada.  Admitted  to  the  bar  in  his 
native  city,  he  removed  to  San  Francisco  at 
the  age  of  twenty-six,  without  money  or  repu- 
tation. He  soon  formed  a  partnership  with 
T.  W.  Freelon,  and  during  all  his  professional 
life  afterward  was  associated  with  that  gentle- 
man, except  when  the  latter  was  on  the  bench. 
Byrne  was  district  attorney  of  San  Francisco 
for  the  two  terms  1851-52,  1853-54,  and  also 
the  two  terms,  1868-69,  1870-71.  In  that  office 
he  brought  many  distinguished  rogues  to  jus- 
tice, some  of  whom  "felt  the  halter  draw." 
He  won  encomiums  from  bench,  bar,  the  com- 
munity and  the  press.  He  was  an  able,  faith- 
ful and  diligent  minister  of  the  people.  He 
was  known  only  as  a  criminal  lawyer. 

The  most  important  trial  in  which  he  ap- 
peared was  that  of  Mrs.  Fair,  charged  with  the 
murder  of  the  prominent  lawyer,  A.  P.  Crit- 
tenden. He  was  then  district  attorney.  The 
trial  was  opened  March  2^,  and  closed  April 
26,  1871.  Byrne  made  the  closing  argument 
for  the  prosecution,  consuming  two  days,  and 
this  was  published  in  full  by  Marsh  &  Os- 
bourne,  the  official  shorthand  reporters,  with 
all  the  proceedings  of  the  trial.  It  was  cer- 
tainly an  admirable  effort,  a  fine  exhibition  of 
his  power  of  invective,  his  unimpeded  flow  of 
speech,  his  subtle  reasoning,  the  precision  of 
his  ideas  and  his  varied  learning.  It  is  full  of 
interest,  and  attractive  for  all  classes  of  read- 
ers. His  quotations  were  many,  but  not 
lengthy,  and  not  unduly  frequent,  considering 
the  great  length  of  his  speech.  He  was,  how- 
ever, corrected  several  times  by  Mr.  Cook,  his 
chief  opponent,  in  statements  of  the  evidence. 
To  give  edge  to  his  points,  beauty  to  his  pe- 
riods and  emphasis  to  his  conclusions,  he 
quoted  from  or  made  allusions  to  Byron's  "Don 
Juan,"  Pollock's  "Course  of  Time,"  Byron's 
"Childe  Harold,"  Lord  Brougham's  "Opinions 
on  Politics,  Law,  Science,  Education,  Litera- 
ture," etc.  "The  Confessions  of  Rousseau," 
"Sappho,"  "The  Monk"  of  Matthew  Lewis ; 
"Little's  Poems,"  Mohammed,  Milton,  Shakes- 
peare, Esculapius,  Hippocrates,  Locke,  Jeremy 
Bentham,  Edwards,  Kant,  Aristotle,  Thacke- 
ray Dickens,  Michelet's  "L'Amour,"  Marc 
Antony,  Cleopatra,  Lord  Nelson,  Lady  Ham- 
ilton, Telemachus,  Diana,  Caesar,  Lucrezia  Bor- 
gia, and  Daniel  Webster.  This  address 
abounds  with  beautiful  periods,  and  striking 
passages,  but  it  must  not  be  supposed  that  be- 
cause of   its   ornament   it   was  not   logical.     It 


was  argumentative,  forcible,  convincine.  In 
reminding  the  jury  of  their  responsibility,  he 
said:  "The  juror's  oath  is  not  a  by-plav.  It 
is  held  most  solemn  by  all  Christian  commu- 
nities where  the  jury  system  prevails.  It  is 
that  chain  which  binds  the  integrity  of  man  to 
the  throne  of  eternal  justice.  And  when  that 
chain  is  broken,  conscience  swings  from  its 
moorings,  and  society  is  again  in  a  condition 
to  resolve  itself  back  into  the  original  chaos 
out  of  which  it  was  carved." 

In  examining  the  testimony  of  the  medical 
experts  for  the  defense,  which  was  to  the 
efifect  that  the  accused  was  insane,  he  declared : 
"If  these  theories  are  correct,  why  the  mothers 
of  posterity  will  produce  nothing  but  a  band  of 
fools.  I  am  rather  inclined  to  think,  after 
hearing  the  testimony  of  some  of  these  phvsi- 
cians,  that  they  have  read  "L'Amour"  of  Mich- 
elet,  a  crazy  Frenchman,  who,  in  the  first  in- 
stance, idealizes  women,  taking  from  them  their 
blood  and  their  brains,  and  then  turns  around- 
and  bows  down  before  them  as  an  idolator. 
There  is  no  practical  sense  in  the  theories  ad- 
vanced. It  is  a  reflection  upon  our  mothers, 
upon  our  wives,  and  will  send  down  to  pos- 
terity a  nation  of  fools,  if  these  theories  are 
correct."  Alexander  Campbell  was  associated 
with  Byrne  in  this  case,  and  made  the  opening 
argument  for  the  prosecution.  The  prisoner 
was  convicted  and  sentenced  to  be  hanged,  but 
secured  a  new  trial,  and  before  she  was  again 
placed  at  the  bar  Byrne  had  gone  out  of  office 
and  passed  away  from  earth. 

Byrne  died  at  San  Francisco,  March  i,  1872. 
a  few  months  after  the  close  of  his  last  term 
as  district  attorney,  aged  forty-eight  years. 
He  had  no  relatives  in  California,  and  no  im- 
mediate kinsfolk  anywhere.  A  younger 
brother,  Lafayette  M.  Byrne,  died  before  him 
in  San  Francisco.  He  had  long  enjoyed  a  val- 
uable practice,  and  had  made  some  judicious 
investments  in  city  real  estate.  His  estate  was 
appraised  at  $77798.  It  proved,  before  final 
settlement  to  be  worth  $90,000.  All  of  this, 
after  making  a  few  small  legacies,  he  be- 
queathed to  his  personal  friend  and  brother 
lawyer,  already  well  off.  E.  R.  Carpcntier.  The 
minor  legacies  were:  To  David  Scanncll,  Eli- 
jah Nichols,  and  H.  H.  Byrne  Ciprico,  a  little 
son  of  George  Ciprico,  the  barber,  $1000  each, 
and  to  Mary  Cross  $5000.  David  Scannell  had 
been  sheriff  in  the  days  of  the  great  vigilance 
committee.  Three  of  Byrne's  nieces— Mary 
E.  Holcomb,  Catherine  F.  Holcomb  and  Julia 
H.  Howard,  daughters  of  a  deceased  sister — 
came  from  Connecticut  and  contested  the  will 


444 


History  of  the  Bench  and  Bar  of  California. 


on  the  grounds  of  unsoundness  of  mind  and 
undue  influence.  They  were  ofifered,  and  ac- 
cepted from  Mr.  Carpentier  $2500  in  full  set- 
tlement before  trial. 

Excepting   James    King    of    William.    David 
C.     Broderick,     General     E.     D.     Baker,     and 
Thomas  Starr  King,  no  man  was  ever  buried 
in  San  Francisco  amid  such  genuine  manifes- 
tations of  popular  sorrow  as  was  Byrne.     An 
immense   concourse   of   mourners   attended   at 
St.  Mary's  Cathedral,  where  Father  Spreckels 
delivered  a  discourse  at  once  impressive  and 
ornate.     Byrne  had  had  Catholic  doctrines  in- 
stilled  into  his  young  mind,  but   through   life 
after   his   maturity   he    claimed   to    be   a    free 
thinker,  being  a  close  reader  and  admirer  of 
Darwin,    Spencer,   and   others   of   that    school. 
Byrne   dwelt   apart   from   all   churches,   creeds 
and  religious  forms,  but  as  the  supreme  hour 
approached,   after   stoutly   holding  out   against 
many    friendly    importunities,    he    permitted    a 
visit  from  a  Catholic  clergyman,  to  whom  he 
made  confession.     Personally,  he  was  perhaps 
the  most  popular  man  who  ever  lived  in  our 
metropolis — more  popular  than  Baker.     Baker 
dazzled  the  multitude  from  an  eminence ;  Byrne 
thrilled  them  by  actual  contact.     He  had  the 
faculty — not    faculty,    but    fortune,    because    it 
was   an   attribute   unconsciously   possessed — of 
enlisting   the    afifections   of   those   with    whom 
he  conversed.     Mention  his  name  in  San  Fran- 
cisco today,  in  any  knot  of  men.  and  some  one 
will    say.    "I    knew    Byrne    intimately."      The 
average  man.  after  having  two  or  three  inter- 
views  with   him.   seemed   to   feel   that   he   had 
been  admitted  unreservedly  to  his  confidence. 
His  funeral  procession   embraced  hundreds  of 
the  poorer  classes,  in  humble  vehicles  and  on 
foot. 

Byrne  was  short  of  stature,  but  comnactlv 
built,  with  his  head  set  firmly  nn  his  shoulders. 
His  eyes  and  beard  and  hair  were  jet  black, 
the  latter  abundant  and  curly.  He  walked  with 
his  head  and  shoulders  thrown  back,  and  his 
carriage  was  somewhat  stiflf.  One  hand  was 
invariably  pocketed.  He  had  the  aspect  of 
great  physical  strength  and  solidity.  He  did 
not  look  the  lawyer  at  all.  His  dress  was 
plain  and  in  good  taste.  His  voice  was  most 
peculiar ;  it  was  sharp,  harsh,  screeching,  a 
great  impediment  to  his  popularity  as  a 
speaker.  No  man  with  such  a  voice  could  at- 
tain distinction  on  the  stump  or  in  the  lecture- 
room,  unless  endowed  with  abilities  of  the 
very  first  class  as  well  as  all  the  graces  and 
magnetism  of  person.  Yet  he  made  the  most 
of  it.     He  had  severely  cultivated  it  under  the 


ablest  professors  of  voice  culture,  and  it  had 
these  compensations :  he  never  tired  in  speech, 
was  never  hoarse,  and  was  always  distinct. 
Xor  did  his  voice  steadily  repel,  but  the  audi- 
tor, on  hearing  him  a  second  time,  would 
gradually  become  accustomed  to  its  tone,  and 
forget  its  oddity.  Music  he  had  studied  con 
aiiiorc.  He  J^iiciv  Jiow  to  sing,  and  yet  could 
not  sing — his  voice  would  not  permit  it.  As 
to  correctness  of  rendition,  he  could  give  you 
almost  any  popular  air  from  any  leading  opera. 
He  was  quick,  bright,  apt  at  repartee,  convivial, 
and  a  lover  of  fun. 

He  spoke  off-hand  always- — that  is,  he  never 
wrote  out  anything :  but  he  marshaled  his 
ideas  and  prepared  his  plans.  He  was  a  power- 
ful prosecutor,  watchful,  all-seeing,  intrepid, 
not  afraid  of  man  or  devil.  His  invective  was 
scathing — it  made  you  shudder  at  times.  Be- 
fore a  jury  he  was  very  rarely  eclipsed.  In 
force,  animation,  beauty  of  imagery  and  illus- 
tration, his  jury  addresses  yield  to  Baker's  only. 
While  he  could  not  stand  against  the  silver- 
tongued  orator  before  the  masses,  or  on  the 
stump,  or  in  great  conventions,  yet  did  he  at 
times  burst  into  eloquence  as  lofty  and  impas- 
sioned as  that  of  Baker  himself. 

One  day  in  Judge  Freelon's  court,  in  1852 
or  1853,  when  Byrne  was  district  attorney. 
Governor  Henry  S.  Foote  demurred  to  an  in- 
dictment written  with  Byrne's  puzzling  pen, 
on  the  ground  that  it  could  not  be  read,  and 
did  not  appear  to  be  in  the  English  language. 
Judge  Freelon  called  for  Foote's  demurrer, 
and,  examining  it,  observed  that  its  chirog- 
raphy  was,  if  possible,  more  of  an  enigma  than 
that  of  Byrne's  indictment.  Solomon  could 
hardly  have  done  better  than  the  Judge  in  this 
perplexity.  He  directed  each  counsel  to  read 
his  own  pleading,  which,  being  done,  the  de- 
murrer was  overruled.  If  Governor  Foote 
thought  the  indictment  was  expressed  in  Irish 
he  heard  Byrne  perform  the  feat  of  reading  it 
in  English,  with  uninterrupted  flow  of  lan- 
guage from  beginning  to  end. 

In  a  half-jocular  way,  Byrne  was  in  the  habit 
of  boasting  that  he  was  descended  from  an 
Irish  king.  He  was  wont  to  attach  to  him- 
self certain  persons,  who  accompanied  him  in 
his  pleasures  at  tables,  etc.,  and  whom  he  made 
his  butts — whose  flattery,  however,  was  not 
altogether  distasteful  to  him,  but  was  taken  as 
return  for  their  entertainment.  One  of  these 
was  a  certain  well-known  "Count."  Lafayette 
Byrne  said,  one  happy  night,  that  he  had  never 
really  believed  in  his  descent  from  an  Irish 
king  until  he  saw  that  his  distinguished  brother 


History  of  the  Bench  and  Bar  of  California. 


445 


kept  a  fool — a  practice,  he  understood,  of  roy- 
alty in   the  old  times. 

In  1854,  in  San  Francisco.  Byrne  met  and 
married  Matilda  Heron,  whose  almost  faultless 
impersonation  of  Camille  afterwards  won  her  a 
widely  extended  celebrity.  They  married  in 
haste,  and  repented  at  leisure,  if  ever  a  couple 
did.  So  little  was  known  of  this  marriage  that 
after  Byrne's  death,  some  eighteen  years  later, 
when  Matilda  Heron  came  from  New  York 
to  contest  his  will,  the  announcement  created 
universal  surprise.  Although  he  always  ig- 
nored it,  the  marriage  was  a  solemn  fact.  Col- 
onel Philip  A.  Roach  was  an  intimate  friend 
of  Byrne  both  in  New  York  and  San  Fran- 
cisco. When  the  actress  told  her  story  to  the 
public  in  1872,  Colonel  Roach  made  an  investi- 
gation and  found  that  she  had  been  duly  mar- 
ried to  Byrne  by  Father  McGinness,  of  St. 
Patrick's  church,  at  San  Francisco,  in  18C4. 
The  light  that  was  thrown  upon  this  unfortu- 
nate alliance  came  from  the  sentimental  actress 
herself,  in  an  affidavit  filed  by  her  in  the  Pro- 
bate Court,  August  28,  1872,  in  the  matter  of 
her  contest  of  Harry  Byrne's  will. 

There  was  a  compromise  effected  between 
Mr.  Carpentier,  the  executor  and  legatee  be- 
for  named,  and  Matilda  Heron.  Mr.  Careen- 
tier's  final  account  shows  that  Matilda  Heron 
received  $1000.  The  fact  is.  she  actuall-  re- 
ceived $5000. 

The  Mary  Cross  to  whom  Mr.  Byrne  left 
$5000  was  a  young  woman  from  Philadelphia, 
who  learned  the  millinery  art  in  the  same  insti- 
tution with  Matilda  Heron,  through  whom  she 
became  acquainted  wi.th  Mr.  Byrne.  She  was 
Mr.  Byrne's  housekeeper  in  one  of  his  houses, 
corner  of  Howard  and  Twelfth  streets,  and  in 
his  sickness  showed  him  unremitting  attention. 
He  really  was  indebted  to  her  for  many  acts 
of  kindness.  He  was  not  married,  and  in  pe- 
riods of  sickness  and  eloom,  consequent  u^nn 
excess  of  conviviality,  he  invariably  sought  her 
house  and  found  hospitable  welcome. 


NATHANIEL  BENNETT. 

Nathaniel  Bennett,  always  recogni^^ed  as 
one  of  the  ablest  lawyers  and  jurists  which 
the  state  has  known,  and  who  was  a  justice 
of  the  Supreme  Court  in  1849-1851,  was  born 
at  Clinton,  Oneida  county.  New  York,  on 
the  27th  day  of  June.  1818.  ,  When  he  was 
three  or  four  years  old  his  father  purchased 
several  tracts  of  land  of  considerable  extent, 
in  Erie  county.  On  one  of  these  tracts  he 
settled  as  a  farmer,  moving  his  family  thither 


from  Clinton.  Nathaniel  passed  his  early 
boyhood  on  this  farm,  and  in  his  twelfth 
year  was  sent  to  Buffalo  to  a  military  school, 
then  lately  established  by  the  celebrated  Cap- 
tain Partridge,  who  had  been  for  more  than 
twelve  years  principal  of  West  Point  Acad- 
emy. 

Nathaniel  was  at  school  at  Buffalo  for  over 
two  years.  The  pupils  of  this  school  were 
daily  subjected  to  regular  military  drill  and 
exercise,  after  the  fashion  at  West  Point. 
From  Buffalo,  young  Bennett  was  sept  to  the 
Academy  at  Canandaigua,  under  the  direction 
of  Mr.  Howe,  where  he  continued  his  studies 
for  about  a  year.  One  of  his  schoolmates  at 
Canandaigua  was  Stephen  A.  Douglas.  After 
leaving  the  academy,  young  Bennett  was  sent 
to  Hamilton  College,  where  he  remained  one 
year;  at  the  end  of  that  time  he  entered  Yale 
College. 

Mr.  Bennett  read  law  at  Buffalo,  New  York, 
He  was  admitted  to  practice  as  an  attorney 
in  1840.  and  as  a  counsellor  in  1843.  He  prac- 
ticed at  Buffalo  from  1840  until  the  fall  of 
1842.  in  partnership  with  Eli  Cook,  a  brother 
of  Elisha  Cook,  Esq.,  of  San  Francisco.  He 
then  determined,  as  his  health  was  somewhat 
impaired,  to  make  a  tour  through  the  South- 
ern states.  In  1838-9,  he  had  traveled  through 
Ohio,  and  visited  many  parts  of  Indiana  and 
Kentucky,  but  had  beheld  no  spot  for  which 
he  was  willing  to  exchange  his  own  home — 
Buffalo.  Up  to  the  time  of  his  starting  upon 
his  second  and  longer  journey,  Mr.  Bennett 
had  always  been  an  ardent  Democrat,  and  a 
great  admirer  of  the  South  and  Southern  in- 
stitutions. .K  radical  change  was  soon  to 
come  over  his  feelings.  He  started  on  his 
return  trip.  He  rode  on  horseback  through 
Eastern  Louisiana,  through  Mississippi.  Geor- 
gia, Tennessee,  Kentucky,  Virginia,  Penn- 
sylvania, and  New  York,  to  Buffalo.  In  re- 
ferring to  this  tour.  Judge  Bennett  stated  to 
the  editor  of  this  History,  that  it  wrought  a 
great  change  in  his  views  concerning  Southern 
institutions  and  the  Southern  country  and 
people. 

Upon  his  return  home,  Mr.  Bennett  applied 
himself  closely  to  the  study  and  practice  of 
his  profession.  When  the  political  organiza- 
tion known  as  Barnburners  first  arose,  under 
the  leadership  of  Silas  Wright,  Benjamin  F., 
Butler,  Joseph  White,  John  Van  Buren.  and 
others,  Mr.  Bennett  embraced  the  principles 
of  the  new  party  with  enthusiasm.  He  was 
a  member  of  the  celebrated  Barnburners'  con- 
vention  which   met   at   Buffalo   in   the   sunnner 


446 


History  of  the  Bench  and  Bar  of  California. 


of  1848.  In  addition  to  the  men  just  named 
above,  Charles  Francis  Adams,  Charles  Sedg- 
wick, Alvin  Stewart,  of  Utica,  and  James  W. 
Nye,  afterwards  United  States  senator  from 
Nevada,  were  delegates  to  the  convention, 
and  a  great  many  others,  among  whom  w^ere 
some  of  the  most  noted  men  of  the  Demo- 
cratic party,  who  had  determined  to  sever 
their  connection  with  the  latter  organization, 
if  it  continued  in  the  course  which  it  was  pur- 
suing. The  convention  nominated  Martin 
Van  Buren  for  the  presidenc}-.  The  result  of 
the  election  is  known.  Silas  Wright,  truly 
a  great  man,  did  not  live  to  see  the  triumph 
of  his  principles.  Although  wedded  to  po- 
litical tenets  repugnant  to  a  very  large  ma- 
jority of  his  fellow-citizens,  and  dying  in  the 
effort  to  engraft  his  views  upon  hostile  public 
sentiment,  millions  of  devoted  friends  and 
magnanimous  foes  lamented  his  death,  and 
the  flag  of  his  country  drooped  in  melancholy 
appreciation  of  the  national  loss.  Judge  Ben- 
nett was  one  of  those  whose  hearts  were  cast 
down  by  the  tidings  of  his  death,  and  who 
labored  patiently  and  quietly  for  the  vindi- 
cation  of  his  political  principles. 

From  1843  to  the  summer  of  1848,  Mr.  Ben- 
nett was  exclusively  engaged  in  practicing 
law.  Judge  Bennett  came  to  California  in 
1849,  landing  in  San  Francisco  on  June  30.  He 
commenced  his  California  life  in  digging  gold 
on  Tuolumne  river,  on  a  bar  about  two  miles 
below  Jacksonville,  at  the  mouth  of  Wood's 
creek.  This  bar  proved  very  rich,  and  being 
worked  by  a  goodly  number  of  men,  yielded  an 
immense  amount  of  gold.  Mr.  Bennett  was  very 
fortunate  at  mining;  he  continued  at  his  new 
occupation  for  about  three  months,  when  in 
response  to  the  solicitations  of  a  friend  prac- 
ticing law  at  San  Francisco,  he  determined  to 
repair  to  that  city,  and  resume  the  practice  of 
his  profession.  Accordingly,  in  the  fall  of 
1849,  he  returned  to  San  Francisco,  where  he 
formed  a  law  partnership  with  the  gentle- 
man who  had  induced  him  to  leave  the  mines. 
This  gentleman  was  the  Hon.  John  Satterlee, 
afterwards  Judge  of  the  Superior  Court  of 
San  Francisco,  one  of  Judge  Bennett's  earliest 
and  best  friends,  and  a  member  of  his  com- 
pany, but  who  had  crossed  the  Isthmus  in 
advance  of  the  rest.  Soon  after  the  adoption 
of  the  State  constitution,  he  was  elected  a 
State  senator  from  San  Francisco.  He  had 
been  in  his  seat  only  a  few  days  when  he  was 
elected  by  the  legislature  one  of  the  Associate 
Justices  of  the  Supreme  Court,  being  chosen 
for   the   longest   term,   six   years.     During  his 


brief  senatorial  career,  and  immediately  there- 
after, he  virtually  directed  ithe  determination 
of  an  important  question  then  agitating  the 
mind  of  the  legal  fraternity.  A  peti.tion  signed 
by  many  practicing  members  of  the  San  Fran- 
cisco bar,  had  been  submitted  to  the  legisla- 
ture, praying  that  that  body  would  retain 
"in  its  substantial  elements,  the  system  of 
the  Civil  Law."  For  Judge  Bennett's  con- 
nection with  this  subject,  see  the  article  en- 
titled, "Adoption  of  the  Common  Law." 

Judge  Bennett  continued  on  the  Supreme 
Bench  for  about  two  years,  when  he  resigned. 
his  salary  being  insufficient  to  support  him  in 
comfort.  The  nominal  salary  of  a  Supreme 
Judge  was  ten  thousand  dollars  per  annum, 
payable  quarterly ;  but  soon  after  the  organ- 
ization of  the  State  government,  the  scrip  of 
the  State  rapidly  declined,  as  might  have  been 
expected. 

In  October,  1850,  the  glad  tidings  came 
slowly  over  the  waters,  that  California  had  , 
become  a  sovereign  State  in  the  federal  sis- 
terhood. The  enthusiastic  citizens  of  San 
Francisco  celebrated  the  event  with  great 
pomp  and  ceremony.  Judge  Bennett  was  se- 
lected to  deliver  the  oration.  His  effort  on 
that  occasion  was  printed  in  full  in  the  col- 
umns of  the  Alta  California,  and  other  news- 
papers of  the  city.  It  is  remembered  with 
affectionate  admiration  by  the  surviving  pion- 
eers of  the  State,  and  is  treasured  among  the 
archives  in  the  county  recorder's  office  of  San 
Francisco.  It  became  a  favorite  piece  for 
declamation   in   our   schools. 

In  1852-3,  Judge  Bennett  was  absent  from 
the  State  for  eighteen  months,  on  a  visit  to 
the  Eastern  States.  Upon  returning,  he  re- 
sumed the  practice  of 'law.  He  devoted  him- 
self closely  to  his  profession,  and  paid  but 
little  attention  to  politics  until  the  formation 
of  the  Republican  party.  He  was  present  and 
took  part  in  the  first  Republican  meeting  held 
in  San  Francisco ;  and  was  a  delegate  to  the 
first  Republican  State  Convention  held  at  Sac- 
ramento, being  elected  president  of  that  body. 
He  was  nominated  for  Judge  of  the  Supreme 
Court  on  the  first  Republican  State  ticket 
voted  for  in  California,  when  Hon.  Edward 
Stanly  was  the  Republican  candidate  for 
Governor.  Being  defeated,  with  the  remainder 
of  the  Republican  nominees.  Judge  Bennett 
paid  a  second  and  longer  visit  to  his  old  home, 
and  returned  to  San  Francisco  after  an  ab- 
sence of  three  years,  in  i860.  Since  that  time 
he  was  in  continuous  practice  at  the  San 
Francisco    bar    until    his    death.      From    1866 


History  of  the  Bench  and  Bar  of  California. 


447 


until  1868,  Judsre  Bennett  was  in  partnership 
with  Elisha  Cook,  Esq.,  brother  of  his  for- 
mer law-partner  in  New  York.  Later,  he  w^as 
the  senior  member  of  the  law  firm  of  Bennett, 
Machin   &   Owen. 

At  'the  celebration  in  May,  1869,  of  the 
completion  of  the  Pacific  Railroad,  b"  the 
people  of  San  Francisco,  Judge  Bennett  had 
the  honorable  task  assigned  him  of  delivering 
the  oration  on  the  occasion.  In  grandeur  of 
thought,  splendor  of  diction,  and  beauty  of 
expression,  this  efifort  will  compare  favorably 
with  his  address  delivered  in  1850,  to  which 
allusion  has  been  made.  Thus,  it  will  be  seen, 
the  name  of  Nathaniel  Bennett  will  be  inti- 
mately associated  through  coming  time  with 
the  history  of  the  two  grandest  events  which 
in  his  age  affected  the  interests  and  destinies 
of  his  adopted   State. 

Judge  Bennett  died  at  San  Francisco  April 
20,  1886.  His  estate  was  appraised  at  $39,500. 
See  the  article  on  the  "Bonanza  Suits." 


JOHN  S.  HAGER. 

John  S.  Hager  was  born  in  New  Jersey, 
March  12,  1818.  His  ancestors  on  both  sides 
were  German  Protestants,  who  first  retreated  to 
Holland,  and  from  that  countrv  emigrated  to 
America.  Thev  landed  at  Philadelphia  in  the 
year  1707,  and  with  other  German  colonists, 
finally  settled  on  the  south  branch  of  the  Rari- 
tan  river,  in  an  uninhabited  portion  of  New  Jer- 
sey, to  which  they  eave  the  name  of  German 
Valley,  and  where  their  descendants  still  reside. 
Their  sons  were  among  the  officers  and  sol- 
diers of  the  Revolution  of  the  army  of  Wash- 
ington. His  grandfather  was  an  officer  in  the 
war  of  1812. 

Born  and  reared  on  his  father's  farm.  Judsfc 
Hager  entered  the  College  of  New  Jersey,  at 
Princeton,  from  which  he  graduated  in  1836, 
receiving  in  due  course  the  degrees  of  Bache- 
lor of  Arts  and  Master  of  Arts.  His  alma 
mater  since  conferred  upon  him  tlic  honorary 
degree  of  Doctor  of  Laws.  He  studied  law 
at  Morristown,  N.  J.,  under  the  direction  of 
Hon.  J.  W.  Miller,  United  States  senator  from 
that  state,  being  admitted  to  the  bar  in  1840, 
and  commencing  the  practice  at  Morristown, 
He  there  remained  until  his  emigration  to 
California.  He  came  to  this  State  in  the 
spring  of  1849.  He  went  after  a  few  weeks' 
stay  at  San  Francisco,  to  the  mines,  in  what 
is  now  Nevada  county.  During  the  summer 
and  fall  of  1849,  he  was  engaged  in  mining 
and    merchandising   on    Bear    river    and    Gold 


Run.  In  the  fall  of  that  year  he  made  a 
trip  with  a  six-mule  team  to  Sacramento  and 
San  Francisco  for  supplies.  During  his  visit 
to  the  latter  city  he  concluded  the  State  would 
be  speedily  settled  by  a  large  population,  and 
he  resolved  to  close  his  business  in  the  mines 
and  resume  the  practice  of  his  profession  in 
San   Francisco. 

He  began  law  practice  in  that  city  in  Janu- 
ary, 1850,  and  soon  had  a  profitable  business, 
but  he  was  not  able  to  properly  devote  him- 
self to  it,  on  account  of  ever  recurring  at- 
tacks of  rheumatism.  He  was  walking  on 
crutches  one  day  in  1852,  when  a  committee 
of  citizens,  on  behalf  of  the  Democratic  party, 
waited  on  him  and  informed  him  that  that 
party  had  nominated  him  for  the  State  senate. 
He  accepted,  his  associate  being  the  late 
Elisha  Cook.  The  city  then  had  only  two 
senators,  the  Whig  nominees  being  John  H. 
Baird,  and  A.  Bartol.  One  candidate  on  each 
ticket  was  elected^Judge  Hager  and  Captain 
Baird. 

In  the  State  senate  Judge  Hager  verv  soon 
exhibited  that  stern  sense  of  duty  which  ever 
marked  his  career  as  a  public  man.  Not 
to  dwell  upon  ihis  record,  it  may  be  stated 
that  in  the  session  of  1853  he  defeated  the 
famous  attempt  to  extend  and  grab  the  water 
front  of  San  Francisco.  The  scheme  was  to 
extend  the  entire  water  front  600  feet,  wholly 
in  the  interest  of  private  parties.  It  was  a 
colossal  "job."  It  was  defeated  in  the  senate 
by  a  tie  vote.  Senator  Samuel  B.  Smith, 
of  Sutter,  one  of  his  companions  in  the  mines, 
who  was  at  first  favorable  to  the  measure, 
and  who,  before  he  understood  it,  had  prom- 
ised some  of  his  friends  to  vote  for  it,  after 
personal  entreaty  and  explanation  from  Judge 
Hager  decided  not  to  vote  at  all,  which  left 
the   senate   equally  divided. 

In  1855  Judge  Hager  was  elected  on  the 
Democratic  ticket  District  Judge  of  the  Fourth 
Judicial  District  for  a  full  term  of  six  years. 
-Vt  it'he  opening  of  banking  hours  on  the 
morning  of  February  23,  the  doors  of  the 
great  (banking  house  of  .Xdams  &  Co.  were 
found  closed.  They  were  never  to  be  thrown 
open  again.  The  firm  was  composed  of  .Mvin 
Adams.  I.  C.  Woods,  and  D.  H.  Haskell.  The 
first-named  resided  in  New  York  city.  Be- 
lieving himself  to  be  a  special  partner,  he 
was  yet  a  general  partner  under  California 
laws.  When  the  suspension  was  determined 
on  (there  was  no  overland  telegraph  then) 
friends  of  Adams  in  San  Francisco,  through 
counsel    (Janes,    Doyle,    Barber   &    Boyd,    and 


448 


History  of  the  Bench  and  Bar  of  California. 


Hackett  &  Casserly)  immediately  instituted 
suit  in  his  name,  in  the  District  Court  of  the 
Fourth  Judicial  District,  then  presided  over 
by  the  late  Judge  Delos  Lake,  against  his 
partners.  Woods  &  Haskell,  to  dissolve  the 
partnership  and  to  have  a  receiver  appointed 
to  administer  the  property  and  effects  for  the 
benefit  of  the  creditors.  Air.  A.  A.  Cohen 
was  appointed  receiver  by  Judge  Lake,  and 
gave  a  bond  in  the  sum  of  one  million  dol- 
lars. 

During  the  pendency  of  this  suit,  the  com- 
pany, by  their  firm  name,  made  application 
to  be  discharged  as  insolvent  debtors,  and 
A.  A.  Cohen,  Edward  Jones  and  Major  Rich- 
ard Roman  were  appointed  by  Judge  Lake  as 
assignees,  and  the  money,  etc.,  in  the  hands 
of  Cohen,  receiver,  was,  by  order,  turned  over 
to  these  assignees.  The  proceedings  in  in- 
solvency were  declared  to  be  informal,  and 
were  dismissed.  On  the  8th  of  October, 
Judge  Delos  Lake  having  resigned,  and  being 
succeeded  by  Judge  Hager,  the  latter  ap- 
pointed General  H.  M.  Naglee  to  succeed  Mr. 
Cohen  as  receiver,  and  made  an  order  that 
the  assignees  in  the  proceedings  in  insolvency 
should  pay  the  funds,  etc.,  in  their  hands,  to 
Receiver  Naglee.  This  the  assignees  refused 
to  do,  and  were  adjudged  guilty  of  contempt. 
Upon  an  appeal  to  the  Supreme  Court,  this 
order  was  finally  affirmed,  and  the  money  was 
then  paid.  Mr.  Cohen  had  accounted  for 
about  $150,000  of  coin,  gold  dust  and  bullion. 
General  Naglee  brought  suit  against  him  to 
recover  the  sum  of  $400,000  which,  it  was  al- 
leged, the  first  receiver  had  collected  above 
the  amount  accounted  for  by  him.  The  trial 
came  ofif  before  Judge  Hager  and  a  jury  in 
March,   1856. 

The  history  of  the  failure  of  Adams  &  Co., 
and  of  events  incident  thereto,  possesses  the 
fascination  of  romance.  The  curious  will  find 
many  smaller  revelations  in  the  local  news- 
paper files  of  January,  March  and  April,  1855, 
March  and  November,  1856,  January  and  De- 
cember, 1857,  and  in  the  California  Supreme 
Court  Reports,  Volume  5,  page  494,  and  Vol- 
ume 6,  pages  316  and  318. 

The  jury  rendered  a  verdict  against  Mr. 
Cohen  for  $269,000. 

The  trial  was  one  of  the  most  exciting  civil 
contests  in  our  history,  and  aroused  the  pas- 
sions of  experienced  counsel.  Mr.  Trenor  W. 
Park  and  the  late  Edward  Stanly  argued  the 
case  for  the  plaintifif,  and  General  E.  D.  Baker 
and  Mr.  S.  M.  Wilson  for  the  defendant. 


On  the  evening  of  the  17th  of  November, 
1855,  General  William  H.  Richardson,  the 
United  States  marshal,  was  shot  and  killed  by 
Charles  Cora  on  the  sidewalk  on  the  south 
side  of  Clay  street,  a  few  yards  west  of 
Leidesdorfif.  The  parties  had  had  a  dispute 
at  the  Cosmopolitan  late  on  the  preceding 
night.  The  witnesses  to  the  shooting  were 
few  and  their  evidence  unsatisfactory.  As  to 
which  party  was  the  aggressor  was  left  in 
doubt.  Cora  was  a  man  of  vicious  surround- 
ings, and  as  to  the  character  and  disposition 
of  General  Richardson,  the  testimony  was  in 
substantial  conflict.  Cora  was  tried  for  mur- 
der in  Judge  Hagar's  court.  It  was  on  this 
occasion  that  Colonel  Baker  made,  in  the  face 
of  a  storm  of  popular  indignation,  his  most 
brilliant  plea  in  defense  of  a  prisoner's  life. 
Tlie  defense  was  permitted  by  the  prosecution 
to  assail  the  character  of  the  deceased,  and 
its  evidence  on  this  point  was  opposed  by 
counter  testimony.  Judge  Hager's  charge  can 
be  found  in  the  local  journals  of  January  18, 
1856.  It  is  worthy  of  mention  that  he  took 
occasion  to  declare  that  the  statute  requiring 
Judges  to  deliver  their  charges  in  writing 
was,  in  his  jud^-ment,  improvident,  and  per- 
haps   unconstitutional. 

It  was  no  fault  of  the  Judge  that  the  jury 
did  not  agree.  He  kept  them  out  two  nights 
and  one  day,  and  only  discharged  them  after 
a  second  urgent  request  in  writing.  They 
stood  four  for  murder  in  the  first  degree,  six 
for  manslaughter,  and  two  for  acquittal.  Cora 
was  remanded  to  jail.  Before  he  could  be 
brought  to  trial  a  second  time  the  great  vigi- 
lance committee  took  him  out  of  his  cell  from 
the  custody  of  Sheriff  David  Scannell.  and 
hanged  him. 

Judge  Hager  was  elected  as  a  Democrat,  in 
1865,  to  the  State  senate,  at  a  special  election, 
to  fill  a  vacancy.  His  Republican  opponent 
was  William  H.  Sharp,  the  lawyer.  Two 
years  later,  he  was  elected  for  a  full  sena- 
torial term  of  four  years.  He  served  in  the 
State  senate  during  five  sessions,  and,  during 
the  greatest  part  of  his  service  he  was  chair- 
man of  the  judiciary  committee,  and  all  of 
the  most  important  bills  went  into  his  hands. 
He  voted  against  all  subsidy  bills,  including 
the  proposed  San  Francisco  million-dollar 
donation  to  the  Southern  Pacific  Railroad— on 
the  ground  that  subsidies  are  wrong  in  prin- 
ciple, that  the  legislature  has  no  right  to  tax 
the  people  to  build  railroads  for  private  in- 
dividuals. 


History  of  the  Bench  and  Bar  of  California. 


449 


In  '^SjZ,  Jndge  Hager  was  elected  United 
States  Senator  to  fill  the  vacancy  caused  by 
the  resignation  of  Hon.  Eugene  Casserlv.  At 
the  same  session  Hon.  Newton  Booth  was 
chosen  for  the  long  term  to  follow  Judge 
Hager.  There  was  unexampled  confusion  in 
politics  at  that  time.  Messrs.  Booth  and  Ha- 
ger   were    elected    as    anti-monopolists. 

During  the  two  sessions  of  the  Forty-third 
Congress,  while  he  was  a  member  of  the  Sen- 
ate, he  largely  engaged  in  the  current  debates, 
and  his  speeches  on  Chinese  immigration,  the 
currency  question,  the  Louisiana  case,  involv- 
ing the  admission  of  Pinchback  (colored)  as 
a  Senator,  and  various  other  topics,  are  fully 
reported   in   the   Congressional  Record. 

Judge  Hager  became  a  regent  of  the  State 
University,  soon  after  its  establishment,  and 
continued    such    to   his    death. 

Judge  Hager  married  in  October,  1872,  at 
St.  Louis,  Missouri,  the  daughter  of  James 
H.  Lucas,  one  of  the  most  opulent  citizens  of 
that  city,  who  was  the  capitalist  of  the  bank- 
ing house  of  Lucas,  Turner  &  Co.,  for  a  long 
time  doing  business  under  the  management 
of  General   Sherman   in   San   Francisco. 

When  in  1882  the  two  great  political  parties 
wisely  agreed,  through  their  representatives 
assembled  in  conventions,  that  a  new  char- 
ter was  needed  for  the  government  of  the 
city  and  county  of  San  Francisco,  and  that 
the  body  of  freeholders  to  be  selected  to 
frame  that  instrument  should  be  lifted  above 
the  atmosphere  of  partisan  strife,  having  each 
designated  seven  men  out  of  fifteen  freehold- 
ers as  members  of  the  charter  convention, 
they  united,  without  one  whisper  of  dissent, 
upon  Judge  Hager,  as  the  fifteenth  and  crown- 
ing constituent  of  the  body.  He  was  elected 
and  served  as  President. 

Judge  Hager's  latest  public  trust  was  the 
office  of  collector  of  customs  at  San  Fran- 
cisco. To  this  he  was  appointed  by  President 
Cleveland  in  1885.  The  appointment  was  a 
siurprisc  to  him,  but  he  accepted  and  took 
charge  of  the  custom-house  on  November  2, 
1885.  He  served  three  and  a  half  years,  re- 
signing immediately  after  the  inauguration 
of  President  Cleveland's  successor  in  March 
1889. 

The  Judge  died  at  San   Francisco,  suddenly 
in   bed,    at   night,    about   4    A.    M.,    March    ig. 


JOSEPH  W.  WTNANS. 

Joseph  VV.  Winans,  it  has  always  been  gen- 
erally agreed,  was  the  first  scholar  of  the  bar 
of  this  State.  All  through  his  life  he  was 
writing  poems,  editorials,  addresses,  etc.,  and 
it  would  seem  that  no  man,  properly  devoted 
to  the  law  could  afford  to  give  one-half  so 
much  thought  to  that  character  of  work. 
However,  the  profession  always  accepted  him 
as  distinctively  a  lawyer,  true  to  his  trust. 

Early  winning  a  leading  place,  he  kept  it 
through  a  long  career.  He  manifested  a  lively 
interest  in  the  selection  of  the  judiciary,  in 
the  support  of  law  libraries,  law  journals  and 
bar  associations;  zealously  labored  to  promote 
the  efficiency  and  dignity  of  the  bar,  and, 
when  one  of  his  brethren  passed  over  the 
silent  river,  it  was  usually  his  hand  that 
penned  the  memorial,  which  was  spread  upon 
the  minutes  of  our  courts. 

Mr.  Winans  was  born  in  New  York  city, 
July  18,  1820.  He  was  of  English-German 
extraction,  his  ancestors  coming  to  America 
more  than  a  century  before  his  own  birth. 
The  picturesque  lake,  Winandermere,  in  Eng- 
land, was  named  for  one  of  his  forefathers. 
His  paternal  grandfather  was  a  soldier  in  the 
American  Revolutionary  army.  His  father 
was  for  forty  years  a  prominent  merchant  in 
New  York  city.  He  retired  from  business 
with  a  large  fortune,  and  at  his  death  was  over 
ninety  years  old. 

Mr.  Winans  entered  Columbia  college  at  the 
age  of  sixteen,  having  passed  through  a  gram- 
mar school.  He  graduated  from  college  at  the 
age  of  twenty.  After  three  years'  study,  he 
received  his  certificate  as  an  attorney-at-law. 
The  ranks  of  the  profession  were  divided 
then  into  two  distinct  grades,  attorneys  and 
counsellors.  After  practicing  three  years  as 
an  attorney,  Mr.  Winans  received  his  license 
as  a  counsellor-at-law,  signed  by  Justice  Bron- 
son.  The  next  year  (1847)  the  people  of 
New  York  adopted  a  new  State  constitution, 
in  which  the  distinction  between  the  grades 
of  attorney  and  counsellor  were  abolished. 
.After  continuing  practice  for  three  years 
longer,  he  and  a  few  other  young  men  bought 
and  equipped  the  bark  Strafford,  in  which 
they  sailed  from  New  York,  February  6,  1849, 
and  arrived  at  San  Francisco,  by  way  of  Cape 
Horn,  August  30,  1849.  Resting  here  onlv  a 
few  days,  they  proceeded  in  their  little  craft 
to  Sacramento. 

There   Mr.    Winans    formed    a   law   partner- 
ship   with   John   G.    Hycr,    which   continued    to 


450 


History  of  the  Bench  and  Bar  of  California. 


the  great  flood  of  the  winter  of  1861-62,  when 
Mr.  Winans  removed  to  San  Francisco. 

Shortly  after  commencing  practice,  the  firm 
of  Winans  &  Hyer  found  litigation  rife — land 
contests  and  disputed  squa.tter  titles.  For  a 
time  squatter  sovereignty  held  sway,  and  law- 
yers and  sheriffs  were  kept  busy  in  settling 
those  so-called  "settlers."  Again,  the  ma- 
chinery of  the  courts  was  to  be  put  into  oper- 
ation ;  local  government  to  be  established ; 
streets,  lots,  squares  and  cemeteries  to  be  laid 
out;  police  and  fire  departments  to  be  set  in 
immediate  motion.  Mr.  Winans'  firm  hand 
was  seen   in  all  these  movements. 

We  recall  a  visit  which  we  made  in  boy- 
hood to  the  District  Court  in  Sacramento,  at 
the  beginning  of  a  term  of  court — always  the 
drycst  day  of  the  term — when  the  term  cal- 
endar was  called,  and  the  firm  of  Winans  & 
Hyer  appeared  on  one  side  or  the  other  in 
over  forty-two  cases ;  more  than  double  the 
number  credited  to  any  other  firm.  On  his 
removal  to  San  Francisco,  Mr.  Winans  formed 
a  partnership  with  Mr.  David  P.  Belknap. 

Mr.  Winans  held  many  offices  of  honor  and 
trust    without    emolument. 

In  1850,  within  a  year  after  his  arrival  there, 
he  was  the  Whig  candidate  for  Criminal 
Judge,  then  called  Recorder — of  Sacramento 
city,  but  was  defeated  by  B.  F.  Washington, 
the  Democratic  nominee.  From  1852  to  1854, 
Mr.  Winans  was  city  attorney  of  Sacramento. 

In  1858,  he  was  chosen  president  of  the  Sac- 
ramento Library  Association. 

Between  the  two  years  last  named  he  served 
three  terms  as  president  of  the  Pioneer  So- 
ciety   of    Sacramento. 

In  1859,  he  attended  the  general  convention 
of  the  Protestant  Episcopal  Church,  which 
met  in  Richmond,  Virginia,  and  took  a  promi- 
nent part  in  the  debates.  He  had  been  one  of 
the  organizers  of  the  Episcopal  Church  Society 
in  Sacramento,  and  was  a  vestryman  there, 
as  afterwards  in   San  Francisco. 

In  1851  he  was  elected  by  the  legislature 
one  of  the  trustees  of  the  State  librarv.  and 
was  chosen  by  his  associate  trustees  president 
of  the  board.  He  held  that  position  some  ten 
years. 

In  1864  he  was  elected  president  of  the 
San  Francisco  Society  of  California  Pioneers, 
and  in  1865  was  president  of  the  San  Francisco 
board    of    education. 

He  was  one  of  the  founders  of  the  San 
Francisco  Law  Library,  and,  on  its  organiza- 


tion  in    1865,   became  one  of  its  trustees,   and 
continued  in  that  position  to  his  death. 

He  also  aided  to  organize  the  San  Francisco 
Bar  Association,  of  which  he  was  a  trustee 
from  its  formation  until  1879.  He.  was  a  re- 
gent of  the  University  of  California  for  many 
years. 

He  was  president  of  the  Society  for  the  Pre- 
vention of  Cruelty  to  Animals,  and  of  the 
Society  for  the  Prevention  of  Cruelty  to  Chil- 
dren. 

He  was  elected  on  the  citizens'  ticket  to  the 
State  constitutional  convention,  which,  met 
in  Sacramento  in  September,  1878.  He  was 
a  hard-working  member  of  that  body,  but, 
like  the  large  majority  of  the  leading  lawyers 
of  his  side  of  the  house,  he  strongly  opposed 
the   ratification   of  that   instrument. 

It  was  Mr.  Winans'  melancholy  duty  to 
write  the  epitaphs  of  many  distinguished 
Judges  and  lawyers  of  California..  From  his 
pen  were  the  bar  memorials  of  Judge  Hugh 
C.  Murray,  who  became  a  Supreme  Justice 
at  the  age  of  twenty-nine,  and  died  on  the 
bench  at  thirty-two ;  of  Hon.  Edward  Nor- 
ton, who  had  served  a  term  as  Supreme  Judge; 
of  the  Hon.  Edward  Stanly,  who  had  been 
Governor  of  North  Carolina;  of  John  B.  Fel- 
ton,  who  died  lamented  by  the  entire  bar, 
in  June,  1877  ;  of  Judge  James  H.  Hardy,  who 
had  been  his  competitor  in  the  famous  Archy 
case,  who  died  in  1873;  William  H.  Patter- 
son, for  many  years  prominent  in  San  Fran- 
cisco, and  who,  after  a  long  disabilitv.  died 
in  1881  ;  and  several  others.  He  also  wrote 
the  resolutions  adopted  by  the  Pioneers,  in 
respect  to  the  memory  of  Charles  D.  Carter, 
an  old  business  man,  who  had  been  a  me- 
chanic, an  editor,  an  alderman,  and  who,  at 
his  death,  in  June,  1871,  was  president  of  the 
Pioneers.  He  also  delivered  a  brief  address 
in  the  Fourth  District  Court  eulogistic  of 
Judge  Joseph  G.  Baldwin,  once  Judge  of  our 
Supreme  Court,  who  died  on  October  i,  1864. 
His  memorial  of  Felton  was,  perhaps,  the 
best  of  all — unless  his  paper  read  to  the  Pio- 
neers, on  the  death  of  President  Garfield,  be 
excepted. 

In  verse — didactic,  erotic,  lyric,  pastoral, 
etc. — Mr.  Winans  was  fruitful.  His  last  and 
longest  poem,  entitled  "A  Centennial  Lyric — 
The  Course  of  Empire,"  appeared  December 
.•^i.  1876. 

It  should  be  stated  with  emphasis  that, 
while  Mr.  Winans  had  a  bright  literary  rec- 
ord,   he    always    subordinated    letters    to    law. 


History  of  tJic  Bench  and  Bar  of  California. 


451 


He  never  asked  or  received  compensation 
for  his  literary  work.  He  was  a  lawyer  first, 
a  literary  man  second.  Actively  and  labori- 
ously and  continuously,  since  1843,  he  worked 
steadfastly  and  devotedly  beneath  the  banner 
of  his  profession.  He  had  a  quick  and  acute 
perception,  a  watchfulness  that  took  nothing 
for  granted,  an  energy  and  enthusiasm  that 
•tell.  Milton  S.  Latham,  after  his  brilliant 
life  at  the  bar  and  politics,  and  when  he  had 
become  a  banker,  was  a  client  of  Mr.  Winans. 
Latham  said  to  Winans  one  day,  atter  leav- 
ing court,  (and  they  had  known  each  otner 
since  1850)  :  "I  would  employ  you  in  a  law- 
suit above  all  other  men  I  know,  because  11 
you  have  to  'come  down,'  ypu  will  scratch  the 
bark  in  coming  down." 

After  his  removal  to  San  Francisco  he  con- 
ducted to  successful  issue  many  of  the  most 
important  cases  that  were  tried. 

A  fine  belles-lettres  scholar,  full  and  fin- 
ished, well  grounded  in  all  classics,  and  a  de- 
vourer  of  all  that  class  of  books  which,  to 
quote  Bacon,  are  worthy  to  be  "chewed  and 
digested,"  Mr.  Winans'  private  library  in  his 
home  mansion  was  indeed  "a  study."  It  con- 
tained 5000  volumes — rare,  ancient,  and  mod- 
ern— embracing  works  on  art,  science,  history, 
logic,  philosophy,  etc.,  etc.,  and  all  the  poets. 
In  this  studio  he  spent  his  leisure  hours  with 
the  genius,  wit  and  learning  of  the  past,  ac- 
cumulating stores  of  instruction  for  the  profit 
of  the  public  in  the  lecture  hall,  as  well  as 
for  the  guests  at  his  fireside.  In  glancing 
over  the  list  of  subjects  that  engaged  his 
thought  and  exercised  his  pen,  one  is  aston- 
isihed  at  their  vast  variety,  as  well  as  charmed 
by  the  manner  of  their  treatment. 

He  was  passionately  fond  of  fine  paintings. 
Possessing  an  aesthetic  taste,  he  was  a  devout 
worshiper  at  the  shrines  of  Raphael  and  Hor- 
ace Vernet,  and  Trumbull  and  Sully,  whose 
masterpieces  beautified  his  drawing-rooms. 

His  only  daughter,  Lilie,  inherited  his  love 
of  art,  and  is  an  enthusiastic  student  af  the 
easel. 

Mr.  Winans  married  at  Sacramento,  in  1854, 
Miss  Sara  A.,  second  daughter  of  Alexander 
Radlam,  Sr.,  and  sister  of  Hon.  Alexander 
Badlam,  Jr.,  who  was  afterwards  city  and 
county  assessor  of  San  Francisco.  He  lost 
one  son,  aged  nineteen  years,  in  1880.  His 
only  other  son,  Joseph  W.  Winans.  Jr.,  who 
was  admitted  to  the  bar  in  1880,  died  about 
ten   years   after  his   father. 

Mr.  Winans  died  at  San  Francisco,  March 
31,    1887. 


THE  FIRST  GOVERNOR. 

Peter  H.  Burnett,  the  first  Governor  of  Cali- 
fornia, was  a  lawyer,  and  a  pioneer  of  pioneers. 
His  long  life  ended  forty-five  years  after  he  left 
the   executive   chair. 

Governor  Burnett  was  a  native  of  Tennes- 
see. His  father  was  a  farmer  and  carpenter. 
The  name  for  generations  had  been  Burnet ; 
the  Governor  was  the  first  of  the  family  to  add 
a  "t,"  and  all  his  brothers  followed  suit.  His 
motive  was  to  make  the  name  more  complete 
and  emphatic. 

His  early  manhood  was  spent  in  Missouri, 
chiefly  in  mercantile  pursuits,  in  which  he 
failed,  and  which  involved  him  in  large  in- 
debtedness. That  he  might  be  able  to  cancel 
his  obligations  and  restore  his  wife  to  health, 
he  looked  to  the  new  Northwest  as  far  back  as 
1843,  in  which  year  he  took  his  wife  and  six 
children  in  ox  teams  to  Oregon,  when  the 
right  to  that  territory  was  disputed  by  the 
United  States  and  Great  Britain.  He  lived  in 
Oregon  five  years,  aided  in  establishing  the 
provisional  government,  and  cultivated  land. 
He  came  to  California  in  1848,  and  after  work- 
ing in  the  northern  mines  for  a  few  weeks, 
settled  at  Sacramento,  and  entered  on  law  prac- 
tice. He  had  been  admitted  to  the  bar  in  Ten- 
nessee. He  became  soon  after  his  arrival  the 
lawyer  and  agent  of  General  John  A.  Sutter, 
the  great  landlord  of  Central  California,  and 
found  the  employment  very  profitable.  Re- 
moving to  San  Francisco,  where  his  family 
rejoined  him,  he  opened  a  law  office.  His  pro- 
fession, his  manners,  his  business  judgment 
and  habits  of  life  made  him  speedily  and  favor- 
ably known.  In  the  first  gubernatorial  cam- 
paign, the  candidates  were  not  nominated  by 
regular  conventions,  but  were  put  forward  by 
public  meetings.  Colonel  J.  D.  Stevenson 
called  a  Democratic  meeting  on  Portsmouth 
Square,  and  upon  his  nomination,  Peter  H. 
Burnett  was  declared  the  Democratic  nominee 
for  Governor.  Other  meetings  nominated 
John  W.  Geary  (Democrat),  W.  S.  Sherwood 
(Whig),  John  A.  Sutter  and  W.  M.  Steuart 
(independents).  The  people  gave  Burnett  6716 
votes,  Sherwood  3188,  Sutter  2201,  Geary  1475, 
Steuart  619.  Governor  Burnett  was  inaugu- 
rated in  December,  1849.  Public  life  proved 
distasteful  to  him,  and  he  resigned  in  January, 
1851,  when  the  legislature  was  sitting  at  San 
Jose.  He  then  resumed  law  practice  in  part- 
nership with  William  T.  Wallace  and  C.  T. 
Ryland,  who  were  destined  to  be  his  sons-in- 


452 


History  of  the  Bench  and  Bar  of  California. 


law  and  distinguished  in  the  history  of  the 
State.  In  1852  he  paid  to  his  old  business 
partners  in  Missouri  the  last  dollar  of  his 
debts,  which  had  aggregated  $28,740. 

He  gave  up  law  practice  in  1854  and  entered 
on  a  wide  course  of  reading.  He  made  his 
first  sea  voyage  in  1856,  visiting  New  York 
city  in  company  with  his  son-in-law,  Mr.  Ry- 
land.  He  afterwards  made  two  other  visits 
to  the  East  by  sea.  His  last  two  public 
speeches  were  made  in  opposition  to  the  great 
vigilance  committee  in  1856.  In  1857  he  was 
appointed  a  Supreme  Judge  by  Governor  John- 
son, and  filled  out  an  unexpired  part  of  a  term, 
nearly  two  years.  In  1863  he,  with  others, 
founded  the  Pacific  bank.  For  many  years 
he   was   president,   and   then    resigned. 

He  published  a  book  of  the  recollections  of 
his  life.  In  it  this  rule  is  laid  down  for  the 
guidance  of  bankers  and  all  business  men  :  "If 
a  man  oiicc  goes  through  insolvency  or  bank- 
ruptcy, or  compromises  with  his  creditors,  or 
indulges  in  unreasonable  expenses,  he  is  un- 
worthy of  credit."  He  says  the  excentions 
to  this  rule  are  about  one  in  ten.  He  thinks, 
also,  (in  this  book)  that  in  banking  the  tempt- 
ation to  do  wrong  is  less  than  in  almost  any 
other  secular  pursuit. 

Governor  Burnett  died  at  San  Francisco 
while  in  sleep,  in  the  day-time,  on  the  17th 
of  May,  1895.  His  age  was  eighty-seven  years 
and  six  months.  He  left  a  valuable  estate  and 
many  descendants.  TTie  San  Francisco  lawyer, 
John  M.  Burnett.  Mrs.  Judge  William  T.  Wal- 
lace, and  Mrs.  C.  T.  Ryland,  of  San  Jose, 
are  his  children. 


EDMUND  RANDOLPH. 

Edmund  Randolph  was  the  scion  of  a  long, 
puissant  line  of  men,  commencing  with  the 
pioneers  of  American  freedom.  He  left  an 
antique  home  flooded  with  Revolutionarv  glo- 
ries, and  came  to  the  remotest  dominion  of 
the  republic,  himself  a  pioneer  in  the  work  of 
founding  a  free  empire  upon  virgin  soil. 
Bringing  with  him  the  stimulus  of  a  high  am- 
bition and  the  heritage  of  ancestral  fame,  he 
approved  himself  the  heir  of  moral  excellence 
and  of  great  intellectual  power. 

He  was  born  in  Richmond.  Virginia,  in  the 
year  1819.  He  attended  the  ancient  and  cele- 
brated college  of  William  and  Mary  in  that 
State,  one  of  his  fellow-students  being  the 
Hon.  Archibald  C.  Peachy,  who  came  to  be 
for  many  years  a  prominent  and  wealthy  law- 
yer of  San  Francisco,  and  who  died  in  June, 


1883.  As  Randolph  sat  at  his  desk  in  that 
historic  institution  of  learning,  his  eyes  daily 
fell  upon  one  of  the  noblest  triumphs  of  the 
sculptor's  art,  a  tablet  of  carved  marble  erected 
in  memory  of  his  remote  ancestor.  Sir  John 
Randolph.  Sir  John  came  from  England  to 
Virginia  early  in  the  last  century.  His  first 
son,  John,  was  the  great-grandfather  of  the 
California  lawyer.  His  second  son,  Peyton 
Randolph  (born  in  Virginia,  1723,  died  in  Phil- 
adelphia, 1775,)  was  twice  president  of  the  Con- 
tinental Congress.  Sir  John's  grandson,  Ed- 
mund, grandfather  of  our  present  subject 
(born  1753,  died  1813),  was  Governor  of  Vir- 
ginia, attorney-general  of  the  United  States 
under  Washington,  and  succeeded  Jefferson 
as  Secretary  of  State.  A  fine  portrait  of  him 
still  may  be  seen  in  the  attorney-general's  of- 
fice at  Washington. 

Between  the  first  Edmund  Randolph  and 
his  grandson  of  the  same  name  came  Peyton 
Randolph,  named  after  the  patriot  before  men- 
tioned. This  second  Peyton  Randolph  was 
also  a  lawyer  of  distinction.  He  married 
Maria  Ward,  the  only  girl  whom  the  eccentric 
John  Randolph  of  Roanoke,  ever  loved — ac- 
cording to  his  own  confession.  (It  may  be 
stated  here  that  the  families  of  Sir  John  Ran- 
dolph and  John  Randolph  of  Roanoke,  were 
not  related.)  Maria  Ward  was  a  noted  belle, 
perhaps  the  most  beautiful  and  accomplished 
American  woman  of  her  day.  Lewis  and 
Clark,  in  their  exploration  of  the  great  un- 
known West  in  1803-4,  named  a  river  "Maria," 
after  this  maiden.  Maria  Ward  was  the 
mother  of  Edmund  Randolph,  our  subject. 

Upon  graduating  from  William  and  Mary 
college,  Edmund  Randolph  attended  the  Uni- 
versity of  Virginia  for  one  year,  chiefly  as  a 
student  of  law.  Then  removing  to  New  Or- 
leans, he  obtained,  by  appointment,  the  office 
of  clerk  of  the  United  States  Circuit  Court 
for  the  circuit  of  Louisiana.  Pursuing  his 
legal  studies,  he  was,  after  a  few  j^ears,  ad- 
mitted to  practice,  and  followed  the  profession 
in  the  Crescent  City  until  1849.  He  married 
in  that  city  the  daughter  of  a  leading  physician, 
Dr.  Meaux,  a  lady  whom  he  had  met  in  Vir- 
ginia some  years  before.  He  arrived  in  Cali- 
fornia in  1849.  A  few  weeks  later  he  was 
elected  to  represent  San  Francisco  in  the  lower 
branch  of  the  legislatuse — at  the  first  session 
of  that  body,  which  opened  at  San  Jose,  De- 
cember 15,  1849.  This  body  met  to  organize  a 
State  government.  It  was  known  as  the  "Leg- 
islature  of   a   Thousand   Drinks."     This   title 


History  of  tJie  BeiicJi  and  Bar  of  California. 


453 


was  not  given  it  on  account  of  the  intemper- 
ate habits  of  the  members,  as  popularly  sup- 
posed, but  owing  to  the  words  invariably 
uttered  by  Senator  Green  of  Sacramento  when 
inviting  friends  to  his  sideboard :  "Walk  in, 
gentlemen,  and  take  a  thousand  drinks." 

In  one  of  the  museums  of  London  may  be 
seen  crayon  sketches,  by  an  English  artist,  of 
all  the  members  of  the  legislature  at  this  ses- 
sion. Every  man  had  a  "flop"  hat  and  a  "hick- 
ory shirt.  Mr.  Randolph  was  a  leader  of  the 
lower  hou.se  throughout  the  session.  State 
officers  and  United  States  Senators  having 
been  chosen,  he  was  appointed,  with  John 
Bigler,  to  wait  upon  the  provisional  Governor, 
General  Riley,  and  inform  him  of  the  organ- 
ization of  the  State  government.  The  com- 
mittee requested  General  Riley  to  turn  over  to 
the  State  treasurer  the  "civil  fund,"  aggregat- 
ing $1,300,000,  collected  by  the  United  States 
army  and  navy  officers,  without  legal  author- 
ity, since  the  acquisition  of  the  country.  Gen- 
eral Riley  refused  to  do  this,  but  turned  the 
fund  into  the  Federal  treasury,  although  he 
had  paid  therefrom  the  expenses  of  the  State 
constitutional  convention.  TTie  legislature  was 
accordingly  compelled  to  borrow  money,  issu- 
ing bonds  bearing  three  per  cent  per  month  in- 
terest. 

The  greatest  cause  in  which  ^Iv.  Randolph 
was  ever  engaged  was  the  most  important 
civil  action  ever  tried  in  California.  It  was  a 
contest  between  the  United  States  government 
and  the  assigns  of  Andreas  Castillero,  and 
involved  the  title  to  the  great  Almaden  quick- 
silver mine,  in  Santa  Clara  county,  together 
with  two  square  leagues  of  land  adjoininp-  the 
mine.  The  whole  property  in  dispute  aggre- 
gated in  value  several  million  dollars.  Mr. 
Randolph  was  introduced  t©  the  case  by  his 
life-long  friend,  A.  P.  Crittenden,  who  was  at- 
torney for  the  "Fosset"  claim  to  the  mine, 
those  representing  the  Fosset  claim,  of  course, 
desiring  to  see  the  government  triumph  over 
Castillero. 

The  history  of  the  discovery  of  this  remark- 
able mine  and  the  twenty  years'  litigation 
which  followed  it,  would  make  a  volume  in 
itself.  It  is  full  of  interest.  The  mine  was 
discovered  by  Andreas  Castillero,  a  wealthy 
Mexican,  in  the  year  1845,  when  California 
was  a  Mexican  territory.  After  the  acquisi- 
tion of  this  country  by  the  United  States, 
Congress  having  established  in  San  Francisco 
a  land  commission  to  settle  the  private  land 
claims   in    California,   a  petition    was   filed   by 


Castillero  with  this  commission,  September 
30,  1852,  asking  that  his  claim  to  the  New  Al- 
maden mine,  and  two  square  leagues  of  ad- 
joining land,  be  confirmed  to  him.  Halleck, 
Peachy  and  Billings  were  petitioner's  attor- 
neys. The  claim  was  opposed  by  the  United 
States  through  the  United  States  land  agent. 
The  land  commission  confirmed  Castillero's 
title  to  the  mine,  but  denied  him  the  land.  On 
appeal  to  the  United  States  District  Court,  a 
great  legal  battle  ensued.  Both  parties  were 
appellants  and  both  respondents,  neither  being 
satisfied  with  the  decision  of  the  land  com- 
mission. On  behalf  of  Castillero,  appeared 
Reverdy  Johnson,  Judah  P.  Benjamin  and 
Archibald  C.  Peachy ;  on  the  part  of  the  gov- 
ernment, Edwin  M.  Stanton  and  Edmund  Ran- 
dolph. The  full  proceedings  of  this  trial  were 
printed  by  order  of  the  government.  They 
comprise  five  large  octavo  volumes.  Mr.  Ran- 
dolph's closing  argument  for  the  government 
covers  three  hundred  printed  octavo  pages. 

It  will  be  borne  in  mind  that  Castillero 
claimed  the  mine,  and  two  square  leagues  of 
land ;  the  land  commission  confirmed  to  him 
the  mine,  without  the  land.  To  the  outsider 
who  knows  nothing  about  the  equities  of  this 
case,  this  might  seem  to  be  a  fair  compromise. 
But  it  satisfied  neither  party.  The  govern- 
ment was  not  willing  to  take  the  land  and  sur- 
render the  mine,  and  Castillero  was  not  satis- 
fied to  take  the  mine  and  give  up  the  land. 
The  decision  of  the  United  States  District 
Court  was  affirmatory  of  that  of  the  land  com- 
mission— the  mine  to  Castillero,  but  not  the 
two  square  leagues  of  land. 

The  case  was  taken  to  the  Supreme  Court 
of  the  United  States,  and  that  tribunal  decreed 
that  Castillero  was  not  entitled  to  either  the 
mine  or  the  lands.  But  before  it  was  argued 
in  that  august  tribunal,  Randolph  died.  He 
had  received  a  fee  of  $5000,  and  expected  a 
large  sum  in  addition.  The  United  States  be- 
ing his  clients  and  the  property  at  stake  being 
of  such  immense  value,  he  felt  that  his  services, 
covering  some  four  years'  ti;ne,  would  receive 
princely  remuneration.  However,  the  $5000 
paid  him  as  a  retainer,  was  all  that  he  received. 
After  his  ieath  his  widow  presented  a  claim 
to  Congress  for  $75,000.  A  petition  accom- 
panied the  claim,  signed  by  fifty  leading  law- 
yers of  San  Francisco,  setting  forth  that  Mr. 
Randolph's. life  was  sacrificed  in  this  case,  and 
that  considering  the  magnitude  of  the  interests 
involved  and  the  length  of  the  controversy,  the 
sum  asked  by  his  widow  was  reasonable.     On 


454 


History  of  the  Bench  and  Bar  of  California. 


final  settlement,  the  government  paid  Mrs. 
Randolph  $12,000,  making  $17,000  paid  for  Mr. 
Randolph's  services.  The  government  paid 
Mr.  Randolph's  coadjutor,  Edwin  M.  Stanton, 
$25,000,  although  the  whole  burden  of  the  case 
was  upon   Mr.  Randolph. 

The  counsel  on  the  opposing  side,  Reverdy 
Johnson  and  Judah  P.  Benjamin,  received 
$35,000  each,  this  fact  being  disclosed  in  a 
letter  from  Mr.  Johnson  to  Hon.  T.  J.  Dur- 
ant,  of  Washington.  In  that  letter  Mr.  John- 
son stated  that  the  great  labor  of  collecting 
the  evidence  for  the  government  in  the  New 
Almaden  case  devolved  wholly  upon  Mr.  Ran- 
dolph ;  that  the  latter  argued  the  case  at  great 
length  and  with  great  ability;  and  prepared  an 
elaborate  brief,  which,  after  his  death,  was 
used  on  appeal  in  the  United  States  Supreme 
Court.  Mr.  Johnson  added  that  he  would  not 
perform  the  services  rendered  by  Mr.  Ran- 
dolph for  less  than  $25,000. 

Randolph  had  little  wit,  but  fullness  of  sar- 
casm. He  never  told  a  "joke."  At  collep-e, 
whenever,  "one  of  the  boys"  would  say  a  good 
thing,  Randolph  would  ask,  seriously,  "What 
does  that  prove.''"  He  once  said  a  good  thing 
himself,  however,  about  a  certain  Judge,  on 
the  bench,  noted  for  his  fluency  of  speech. 
This  Judge  was  delivering  an-  opinion,  and 
Randolph  was  impatiently  waiting  to  com- 
mence the  trial  of  a  cause.  The  Judge  rolled 
out  sentence  after  sentence,  and  period  after 
period,  with  magnificent  volubilit}',  and  it 
seemed  that  the  end  would  never  come.  In  the 
midst  of  this  judicial  display,  Randolph  turned 
to  Tully  R.  Wise,  and  inquired  sotto  voce, 
"Did  it  ever  occur  to  you  what  a  great  man 
Judge  would  make,  if  he  only  stuttered?" 

But  Randolph,  it  must  be  said,  had  a  one- 
sided mind.  He  never  took  in  the  whole  sit- 
uation. Looking  at  him  in  the  New  Almaden 
case,  the  most  prominent  fact  is  his  tireless 
industry.  Coming  from  the  South,  and  being 
impetuous  in  temperament,  it  is  a  marvel  that 
he  could  bestow  upon  any  cause  the  patience, 
industry  and  labor  which  he  gave  to  that  case. 
He  was  a  genius,  but  he  was  not  a  legal  genius. 
He  was  not  a  powerful  reasoner.  He  was  not 
logical.  We  cherish  his  fame,  but  we  are 
speaking  the  conclusion  of  the  bar  leaders 
who  knew  him  best.  He  was  full  of  poetry 
and  enthusiasm,  yet  at  the  same  time,  strange 
to  say,  he  was  a  hard-working  man.  He  won 
public  admiration,  yet  he  had  few  intimate 
friends.  He  was  not  companionable.  In  his 
family,  however,  he  was  almost  worshiped. 


He  was  a  man  of  splendid  visions.  He  took 
a  deep  interest  and  an  active  part  in  General 
Walker's  scheme  for  the  conquest  of  Nica- 
ragua. Walker  was  a  (born  leader  of  men,  but 
he  succumbed  fully  to  Randolph's  influence. 
Randolph,  like  Bishop  Whitefield,  sincerely 
believed  that  no  Southern  country  could  be 
developed  without  slave  labor.  He  hoped  to 
see  a  central  empire  established  between  the 
Western  continents,  of  which  Walker  would 
be  the  executive  head,  and  he  (Randolph)  the 
great  chancellor.  His  dream  came  nearer 
fulfillment  than  is  generally  supposed.  The 
United  States  did  not  interfere  with  Walker's 
operations,  and  there  is  hardly  room  to  doubt 
that  with  Vanderbilt's  aid  the  great  filibuster 
would  have  won  an  honorable  name  in  his- 
tory. Vanderbilt  had  a  magnificent  grant 
from  the  Nicaraguan  government,  giving  him 
the  e.xclusive  right  to  transport  passengers  and 
freight  across  the  isthmus,  and  also  entitling 
him  to  a  large  land  grant  on  both  sides  of  the 
great  highway.  This  splendid  franchise 
Walker,  in  an  evil  hour  for  himself,  wrested 
from  Vanderbilt  and  conferred  upon  the  Mor- 
gans of  New  York  city. 

When  Walker's  last  stronghold  was  taken, 
it  was  found  that  the  besieging  force  was  com- 
posed principally  of  white  sailors !  They  were 
in  the  pay  of  Vanderbilt ! 

Randolph  delivered  to  the  Society  of  Cali- 
fornia Pioneers,  September  10,  i860,  the  ablest 
historic  address  ever  uttered  on  this  coast.  In 
it  he  referred  to  the  fate  of  his  friend  Walker, 
and  also  to  the  end  of  Henry  A.  Crabbe,  who 
led  a  filibustering  party  into  Alexico. 

Randolph  died  at  San  Franci.sco,  September 
8,   1861.  aged  forty-two  years. 


S.  C.  HASTINGS. 


The  first  Chief  Justice  of  the  Supreme  Court 
of  California,  and  the  founder  of  Hastings 
College  of  the  Law,  was  born  in  Jefferson 
county.  New  York,  November  22,  1814.  His 
father,  Robert  C.  Hastings,  had  removed  from 
Boston  to  New  York,  and  there  married  Miss 
Patience  Brayton.  whose  family  had  been 
among  the  earliest  settlers  of  that  region. 
There  were  seven  children  of  this  marriage, 
all  of  whom  attained  majority. 

The  elder  Hastings  died  on  a  farm  near 
Geneva.  New  York,  when  his  son  was  ten  years 
old.  The  family  then  removed  to  St.  Lawrence 
county  There  this  son  attended  the  Gouver- 
neur  Academy  for  si.x  years,  being  under  the 


History  of  the  Bench  and  Bar  of  California. 


455 


special  instruction  of  two  tutors — graduates 
from  Hamilton  college.  At  the  age  of  twenty, 
he  was  tendered  and  accepted  the  position  of 
principal  of  Norwich  academy  in  Chenango 
county,  New  York.  This  institution  had  gone 
into  a  sort  of  decline,  but  was  inspired  with 
new  life  under  the  administration  of  its  young 
principal,  who  introduced  the  Hamiltonian  sys- 
tem of  instruction,  and  the  Angletean  system 
of  mathematics,  and  other  branches  of  educa- 
tion. At  the  end  of  one  year  he  resigned  and 
went  to  Lawrenceburg,  Indiana.  There  he 
pursued  the  study  of  law,  first  in  the  office  of 
Daniel  S.  Mayor,  afterwards  in  that  of  Hon. 
Amos  Lane.  He  had,  before  removing  from 
Norwich,  read  law  for  a  few  months  in  the 
office  of  Charles  Thorpe,  Esq.,  of  that  town. 
In  the  exciting  presidential  campaign  of  1836, 
he  was  editor  of  the  Indiana  Signal,  and  in 
that  capacity  gave  a  cordial  support  to  Martin 
Van  Buren.  In  December,  1836,  he  was  admit- 
ted to  the  bar  by  the  Circuit  Court  at  Terre 
Haute,  Indiana. 

In  January,  1837,  he  removed  to  Burlington, 
in  what  is  now  the  State  of  Iowa.  He  soon 
located  at  a  little  hamlet,  which  has  grown 
into  the  city  of  Muscatine.  All  that  vast  re- 
gion was  then  under  the  jurisdiction  of  the 
courts  of  the  Territory  of  Wisconsin.  Having 
after  another  examination,  been  again  admit- 
'  ted  to  the  bar,  Mr.  Hastings  commenced  prac- 
tice. He  was  soon  appointed  a  justice  of  the 
peace  by  Governor  Dodge,  of  Wisconsin  terri- 
tory. He  used  to  say  that  his  jurisdiction 
covered  the  whole  Western  territory,  extend- 
ing even  to  the  Pacific  ocean.  He  was  a  man 
of  large  stature,  capable  of  great  physical  en- 
durance, shrewd,  energetic,  alert  in  mind  and 
body,  simple  in  his  tastes  and  habits,  peculiarly 
adapted  to  the  border,  and  was  not  to  be 
found  wanting  in  the  ebb  and  flow  of  frontier 
life.  When  Iowa  was  admitted  as  a  State,  he 
was,  probably,  the  best-known  and  most  pop- 
ular of  her  citizens. 

When  the  territory  of  Iowa  was  created  in 
1838,  Mr.  Hastings  was  elected,  as  a  Democrat, 
a  member  of  the  lower  branch  of  the  legisla- 
ture. He  continued  to  represent  his  county,  in 
either  the  House  or  Council,  at  every  session 
of  the  legislature  until  the  admission  of  Iowa 
as  a  State,  in  1846.  At  one  session,  he  was 
President  of  the  Council.  He  was  usually  a 
member  of  the  judiciary  committee,  and  as 
such  did  effective  service  in  the  shaping  of  im- 
portant legislation.  He  reported  from  that 
committee   the   statute    which    was   afterwards, 


for  many  years  in  Iowa  and  Oregon,  known  as 
"The  Blue  Book." 

In  1846,  upon  the  admission  of  Iowa  into 
the  Union,  Major  Hastings  took  his  seat  as  her 
first  representative  in  the  lower  house  of  Con- 
gress. This  was  the  Twenty-ninth,  or  Mexican 
War,  Congress.  At  the  end  of  his  congres- 
sional term,  he  was  appointed  by  the  Governor 
Chief  Justice  of  the  Supreme  Court  of  Iowa. 
This  position  he  occupied  only  one  year.  The 
year  1849  had  arrived. 

Judge  Hastings  came  to  California  in  the 
spring  of  that  year.  He  settled  at  Benicia. 
About  six  months  after  his  arrival  he  was 
chosen  by  our  legislature  (December  20,  1849) 
Chief  Justice  of  the  Supreme  Court,  his  asso- 
ciates ibeing  Henry  A.  Lyons  and  Nathaniel 
Bennett,  both  of  whom  are  deceased.  He  was 
glad  to  accept  this  honor,  as  it  would  make 
him  widely  known  in  the  new  State,-  and  the 
salary  was  greater  than  that  which  he  had  sur- 
rendered in  Iowa.  His  term  was  two  years, 
which  he  served  out.. 

Judge  Hastings  stepped  from  the  Supreme 
bench  into  the  office  of  attorney-general,  to 
which  the  people  elected  him  in  the  fall  of 
185 1.  He  made  no  speeches  in  the  campaign, 
but  his  Whig  opponent,  who  was  quite  an 
orator,  canvassed  the  State.  The  salary  of  a 
Supreme  Judge  at  that  day  ($10,000  per  an- 
num) proved  to  be  a  poor  support  for  a  pro- 
fessional man  with  a  large  family.  While 
on  the  bench,  of  course,  Judge  Hastings  was. 
debarred  from  practice,  and  at  the  end  of  his 
term  he  was  in  very  straitened  circumstances. 
As  attorney-general,  he  was  enabled  to  con- 
duct some  law  business  on  his  own  account. 
He  soon  entered  upon  a  career  of  prosperity 
and  the  attainment  of  wealth. 

The  foundation,  the  nucleus  of  Judge  Has- 
tings' colossal  fortune  was  the  money  which 
he  received  in  the  shape  of  law  fees  while  at- 
torney-general. He  held  this  office  two  years, 
and  then  continued  law  practice.  He  also  be- 
came a  member  of  the  Sacramento  banking 
firm  of  Henley,  Hastings  &  Co.  This  firm 
failed,  but  Judge  Hastings  himself  was  not 
much  hurt  by  it.  About  this  time  he  began 
to  get  remittances  from  Iowa,  from  the  sale  of 
his  lands. 

Although  he  was  to  become  lord  of  a  large 
landed  estate,  quite  a  long  time  elapsed,  after 
his  arrival  here,  before  he  invested  in  real 
property.  He  loaned  his  money  on  undoubted 
security  at  three  to  five  per  cent  per  month 
interest.     After  leaving  the  office  of  attorney- 


456 


History  of  the  Bench  and  Bar  of  California. 


general,  he  followed  his  profession  a  year  or 
two,  meanwhile  keeping  large  sums  of  money 
out  on  loan,  then  gave  up  professional  life  for 
good.  He  now  turned  his  attention  to  city  lots 
and  country  lands,  gradually  acquiring  about 
one  hundred  pieces  of  real  estate  in  San  Fran- 
cisco, and  bought  large  tracts  in  Solano,  Napa, 
Lake  and  Sacramento  counties.  In  1862,  he 
was  worth  $900,000,  which  he  owed  chiefly  to 
appreciation  in  real  estate.  Twenty  years  later 
he  was  worth  two  and  a  half  millions  of  dol- 
lars. The  San  Francisco  property,  standing  in 
his  name  down  to  December,  1887,  was  valued 
at  $150,000,  he  having,  about  ten  years  before, 
conveyed  to  his  son.  C.  F.  D.  Hastings,  in  trust 
for  all  his  children,  city  realty  of  the  assessed 
value  of  half  a  million.  Besides  making  other 
munificent  provisions  for  his  children,  he  pre- 
sented to  his  two  eldest  sons  an  extensive  and 
fully  stocked  farm  in  Solano  county.  In  Napa 
county  he  reserved  three  large  estates,  enriched 
with  vineyards,  prolific  in  their  yield  of  the 
choicest  grapes.  In  other  counties  he  turned 
his  attention  to  the  growing  of  wheat  and 
wool  on  a  large  s'cale. 

Judge  Hastings  was  married  to  Miss  Azalea 
Brodt,  at  Muscatine,  Iowa,  in  1845.  She,  with 
her  children,  joined  her  husband  at  Benicia 
in  1851.  At  that  town  the  family  home  was 
located  for  many  years.  Mrs.  Hastings  died 
at  Pan,  in  the  south  of  France,  in  1876.  There 
were  eight  children  of  the  marriage— Marshall- 
C.  F.  D.,  Robert  P.,  Douglass,  Clara  L.,  Flora 
A.,  Ella  and  Lellia. 

In  founding  the  college  of  law,  which  bears 
his  name.  Judge  Hastings  secured  his  fame 
for  many  coming  generations,  as  a  friend  of 
learning,  and  did  an  act  which  will  ever  in- 
spire his  children  and  his  children's  children 
with  honorable  pride.  For  the  establishment 
of  this  institution,  the  only  law  college  in  the 
State,  he  paid  into  the  State  treasury,  in  1878, 
the  sum  of  $100,000.  He  made  it  a  condition 
that  no  more  than  the  amount  of  interest 
which  would  accrue  from  that  sum  at  seven 
per  cent  per  annum,  should  be  expended  for 
compensation  to  instructors.  Also,  that  the 
privileges  and  benefits  of  the  college  should 
not  be  confined  to  such  students  as  intended 
to  follow  the  legal  profession,  but  should  be 
freely  extended  to  all.  He  declared  his  con- 
viction that  the  study  of  law  by  the  students 
generally  in  all  our  institutions  of  learning, 
would  greatly  contribute  to  the  security  of 
free  government  and  to  the  advancement  and 
elevation  of  the  people. 


In  order  to  formally  accept  the  donation  and 
to  carry  out  the  views  of  the  donor,  the  legis- 
lature of  1878  passed  an  act  creating  the  col- 
lege. By  that  act  the  officers  were  declared  to 
be  a  Dean,  Register  and  eight  Directors — 
the  Directors  being  named  as  Joseph  P.  Hoge, 
W.  W.  Cope,  Delos  Lake,  Samuel  M.  Wilson, 
O.  P.  Evans,  Thos.  B.  Bishop,  John  R.  Sharp- 
stein  and  Thomas  I.  Bergin.  The  Dean  and 
Register  were  to  be  appointed  by  the  Direct- 
ors. The  act  provided  further  that  the  col- 
lege should  affiliate  with  the  University 
of  the  State,  and  be  the  law  department  there- 
of; that  the  sum  of  seven  per  cent  per  annum 
upon  one  hundred  thousand  dollars  should  be 
paid  by  the  State,  in  two  semi-annual  pay- 
ments, to  the  Directors  of  the  College,  and 
that  any  person  might  establish  a  professor- 
ship in  his  own  name,  by  paying  to  the  Di- 
rectors  thirty   thousand   dollars. 

The  Directors  very  appropriately  asked 
Judge  Hastings  to  take  the  position  of  Dean, 
and  he  complied.  After  some  years  he  relin- 
quished the  post,  and  his  son,  Robert  P.,  was 
made  his  successor  therein,  the  Judge  taking 
the  Professorship  of  Comparative  Jurispru- 
dence. Thirty  dollars  is  the  limit  of  expense 
to  the  student — $10  for  each  year,  or  for  ad- 
mission to  each  class.  This  college,  although 
technically  a  part  of  the  State  University,  is 
wholly  located  at  San  Francisco.  Its  stu- 
dents are  accorded  the  privileges  of  the  San 
Francisco  Law  Library,  and  many  of  them 
pass  their  hours  of  study  in  the  hall  of  that 
institution.  The  act  of  the  legislature,  before 
referred  to,  declares  that  students  who  receive 
diplomas  from  the  law  college  shall  be  en- 
titled to  practice  in  all  the  courts  of  the  State, 
subject  to  the  right  of  the  Chief  Justice  of 
the  Supreme  Court  to  order  an  examination, 
as  in  other  cases. 

Judge  Hastings  died  at  San  Francisco  on 
the  i8th  of  February,  189,3,  aged  seventy-eight 
years. 


PETER   VAN   CLIEF. 

Judge  Peter  Van  Clief  was  born  in  Ohio, 
on  the  26th  of  January,  1818.  He  was  admitted 
to  the  bar  in  Ohio,  and  practiced  law  in  that 
state  for  several  years.  He  came  to  California 
in  1849,  across  the  plains,  and  after  having  en- 
gaged in  mining  for  a  time,  located  at  Downie- 
villc,  engaging  in  law  practice.  In  1851  he 
became,   by  appointment   of  Governor  Weller, 


History  of  tlic  Bench  and  Bar  of  California. 


457 


also  a  native  of  Ohio,  judge  of  the  Seventeenth 
Judicial  District.  After  leaving  the  bench, 
he  practiced  law  in  Downiex'ille  for  some 
time,  and  afterwards  engaged  in  the  practice 
in  Mar3-sville,  from  1870  to  1877,  and  then 
removed  to  San  Francisco.  He  afterward  al- 
ternated between  San  Francisco  and  Downie- 
ville.  In  1889  he  was  appointed  Supreme  Court 
commissioner,  and  held  that  office  until  his 
death  on  November  29,  1896.  He  was  twice 
married,  and  left  a  widow,  Mrs.  H.  A.  Van 
Clief,  and  three  daughters,  Mrs.  H.  L.  Gear 
and  Mrs.  W.  F.  Herrin,  of  San  Francisco,  and 
Mrs.  Helena  C  Cowden,  of  San  Jose. 

A  press  writer,  in  noticing  the  end  of  this 
long  and  worthy  life,  said  very  well  that  he 
was  universally  and  justly  esteemed  for  his 
legal  attainments,  and  that  he  was  otherwise 
a  man  of  deep  culture,  having  contributed  ably 
and  frequently  in  the  field  of  general  litera- 
ture. In  everything  which  he  said  or  wrote 
he  was  so  rigidly  upright  that  he  came  to  be 
spoken  of  by  some  people  as  a  man  of  imprac- 
ticable honesty. 

His  friend.  Judge  John  Currey,  who  was 
Chief  Justice  of  our  Supreme  Court,  when  he 
first  met  Judge  Van  Clief,  said,  when  he 
learned  of  the  latter's  death,  "He  argued  a 
number  of  cases,  and  I  saw  that  he  was  a  law- 
yer of  rare  ability.  I  came  to  know  him  well, 
and  saw  much  of  him  for  a  good  many  years. 
In  the  preparation  and  trial  of  cases  he  mani- 
fested the  ability  and  confidence  of  the  thor- 
oughly equipped  lawyer.  In  a  case  in  which 
I  was  engaged  on  the  other  side,  and  he  and 
the  late  Judge  H.  O.  Beatty  (father  of  our 
Chief  Justice),  were  on  the  other,  I  became 
more  thoroughly  impressed  than  ever  with  his 
familiarity  with  the  law,  and  his  freedom 
from  all  undue  maneuvering  for  temporary 
and    useless   advantages. 

"He  was  a  very  plain  and  direct  man,"  con- 
tinued Judge  Currey,  "in  all  his  intercourse 
wth  men.  He  never,  so  far  as  I  know,  mani- 
fested anything  like  vanitv.  He  hated  all 
sham.  He  was  a  thoroughly  honest  man — 
honest  with  himself  and  all  others.  Advanced 
as  he  became  in  years,  I  greatly  regret  his  de- 
parture from  among  us.  I  feel  his  loss  with 
a  mournful  sense  that  a  good  man,  whose  in- 
fluence was  always  beneficent,  is  gone  forever 
from   the   legal   profession." 

Like  high  testimony  was  given  by  Supreme 
Judge  McFarland  and  ex-Supreme  Judge 
Searlcs  and  others. 


SOLOMON   HEYDENFELT. 

The  features  we  are  now  to  see  testify  to 
serious  problems  solved  by  untiring  effort,  but 
they  show  lines  of  tenderness  and  sympathy 
that  held  their  place  beside  the  imprint  of  ab- 
sorbing thought.  They  speak,  too,  of  reputa- 
tion won,  not  in  forensic  encounter  but  in 
council.  "Cautious,  silent  and  laborious,"  as 
Macaulay  pictured  Godolphin,  here  is  a  mind 
that  kept  tranquil  amid  the  severest  employ- 
ments reaching  through  a  long  flight  of  time. 
Here  is  one  whose  lifework  was  nearly  all 
done  apart  from  public  observation.  However, 
it  must  not  be  understood  that  this  prime 
character  has  lived  and  labored  as  a  recluse. 
Some  open  views  even  of  him  are  to  be  had. 
Solomon  Heydenfeldt  was  born  at  Charles- 
ton, South  Carolina,  in  1816.  When  he  was 
eight  years  old  his  father  died,  having  been  a 
teacher  of  ancient  languages,  and  having  been 
completely  stripped  of  a  considerable  estate 
during  his  absence  from  home,  by  the  defalca- 
tion of  an  agent  who  held  his  power  of  attor- 
ney. Being  fortunately  reared  with  maternal 
care,  Solomon  Heydenfeldt  was  sent  to  a  col- 
lege in  Pennsylvania,  where  he  studied  Latin 
and  Greek  and  mathematics;  but  he  left  col- 
lege without  graduating.  Returning  to 
Charleston,  he  studied  law  in  the  office  of  the 
eminent  advocate,  De  Saussure,  son  of  the 
great  chancellor  of  the  Palmetto  State.  In 
the  year  1837,  at  the  age  of  twenty-one,  he  re- 
moved to  Alabama,  first  stopping  at  Montgom- 
ery, where  he  was  admitted  to  the  bar.  He 
soon  afterwards  settled  in  Russell  county, 
near  the  Georgia  line,  and  practiced  law  in 
both  Georgia  and  Alabama.  In  this  region 
he  married,  and  passed  thirteen  years  of  his 
life  in  active  and  successful  law  practice.  He 
removed  to  California  in  the  spring  of  1850, 
settling  at  San  Francisco.  His  e.xcellent  hab- 
its and  business  assiduity,  his  generous  dis- 
position, broad  legal  knowledge  and  dignified 
presence  quickly  made  him  a  man  of  mark  in 
that  era  of  reckless  activity.  He  acquired  a 
fine   practice    in   civil    business. 

The  only  criminal  case  he  ever  had  in  his 
life  was  tried  in  the  fall  of  1851,  and  presents 
a  hulicrous  instance  of  a  jury's  sense  of  pro- 
jiriely.  Samuel  Gallagher  had  killed  Lewis 
Pollock  on  the  night  of  June  22,  1851.  Galla- 
gher was  tried  for  murder  in  the  Fourth  Dis- 
trict Court,  Delos  Lake  presiding,  August  12, 
1851.  When  the  jury  had  been  out  for  three 
hours,  the  bailiff  entered  Judge  Heydenfeldt's 
office  and   informed  him  that  he  was  directed 


458 


History  of  the  Bench  and  Bar  of  California. 


by  the  jury  to  state  to  him  (Heydenfeldt)  that 
they  stood,  firmly,  seven  for  conviction  of 
murder  in  the  first  degree  and  five  for  acquit- 
tal, but  that  if  it  pleased  him  (Heydenfeldt), 
they  would  agree  upon  a  verdict  of  manslaugh- 
ter. Judge  Heydenfeldt  was  agreeable,  and 
Judge  Lake  was  sent  for,  and  a  verdict  of 
manslaughter  was  brought  in.  The  prisoner 
was  sentenced  to  three  years'  imprisonment, 
and  was  fined  $500.  Fining  prisoners  in  cap- 
ital cases,  in  addition  to  imprisonment,  was 
quite  the  fashion  here  in  early  days.  The  law 
and  the  courts  never  got  so  far  advanced, 
however,  as  to  fine  a  man  and  hang  him,  too. 

After  the  sentence  of  Gallagher,  Judge  Hey- 
denfeldt told  his  friends  generally  of  the  com- 
munication between  himself  and  the  jury. 
Judge  Lake  did  not  learn  of  it  until  the  sen- 
tence had  been  imposed,  or,  it  is  safe  to  say, 
there  would  have  been  a  signal  exhibition  of 
judicial   wrath. 

The   legislature   which   met   at   San   Jose,   in 
January,    1851— the   first   session   after  the  ad- 
mission   of    California    into    the    Union— was 
nearly  evenly  divided  between  Democrats  and 
Whigs.      On   joint   ballot    the   Democrats   had 
a    slight    supremacy.      When    the    two    houses 
met  in  convention  to  ballot  for  a  United  States 
Senator   to    succeed   John    C.    Fremont,    Solo- 
mon  Heydenfeldt  was  the  Democratic   caucus 
candidate,  and  T.  Butler  King,  then  collector 
of  the  port  of  San  Francisco,  was  the  Whig 
nominee.     Fremont,  it  may  be  explained,  had 
been  elected  for  the  short  term  by  the  legis- 
lature  which    met   previous    to    the    admission 
of  the  State,  on  the  happening  of  which  event 
("September  9,   1850)    he   took  his   seat   in   the 
United   States   Senate,   to   serve   until   the   fol- 
lowing March.     In  January,  1851,  in  the  con- 
test now  to  be  noticed,  he  was  a  candidate  for 
the   succession,   and   received   seven   votes,   his 
supporters     being     native     Californians      (not 
■     Native  Sons  of  the  Golden  West,  so-called,  but 
of   Spanish   and   Mexican   extraction).     Judge 
Heydenfeldt,    being    Southern    in    his    politics. 
three    of    four    Northern    Democrats,    all    of 
whom  had  participated  in  the  Democratic  cau- 
cus, "bolted"  the  caucus  nomination,  refusing 
persistently  to  vote  for  him.     The-  voted  for 
John  W.  Geary,  who  was  afterward  Governor 
of  Pennsylvania.     The  legislature  took  no  less 
than  one  hundred  and  forty-two  ballots  with- 
out   an    election.      There    was    danger    during 
the  protracted  struggle  that  Fremont's  native 
sons  would  vote  for  King,  and  end  the  fight, 
in  which  event  the  Democratic  bolters  would 


not  have  accomplished  anything  of  extra  value, 
inasmuch  as  King  was  himself  a  proud  South- 
ron. That  legislative  session  closed  without 
an  election  of  Senator.  At  the  next  session 
John  B.  Weller  was  chosen.  But  for  this  un- 
expected miscarriage.  Judge  Heydenfeldt 
would  have  entered  the  Senate  in  his  thirty- 
fifth   year. 

It  was  the  general  belief  among  Democrats, 
after  the  legislature  adjourned,  in  1851,  that 
Judge  Heydenfeldt  would  be  the  party  candi- 
date for  L^nited  States  Senator  at  the  next 
session,  one  year  later.  But  before  that  ses- 
sion opened  he  was  nominated  by  the  State 
convention  of  his  party  for  Judge  of  the  Su- 
preme  Court. 

Judge  Heydenfeldt  was  elected  in  the  fall 
of  1851  a  Justice  of  the  Supreme  Court,  his 
Whig  opponent  being  Hon.  Tod  Robinson, 
father  of  the  well-known  lawyer,  Cornelius 
P.  Robinson.  Judge  Robinson  had  been  Judge 
of  the  Sixth  judicial  district  at  Sacramento. 
He  was  a  North  Carolinian,  and  a  lawyer  of 
fine  ability.  This  was  the  first  election  for 
Supreme  Judges  under  the  State  government, 
the  first  Justices  of  the  Supreme  Court  having 
been  chosen  by  the  legislature  previous  to  the 
admission  of  the  State.  Judge  Heydenfeldt 
succeeded  Judge  S.  C.  Hastings,  and  his  term 
was  for  six  years,  commencing  January  t, 
1852. 

On  January  6,  1857,  having  served  five  years 
on   the  bench,   only  one  year   of  his   term   re- 
maining.   Judge    Heydenfeldt    resigned.      His 
opinions  are  contained  in  Volumes  II  to  VII, 
inclusive,  of  the  Reports.     He  left  the  bench 
because  the  salary  did  not  enable  him  to  sup- 
port himself  and  family  and  other  dependent 
relatives.      Resuming    practice    in    San    Fran- 
cisco, he  followed  it  with  activity  and  success 
until    the   Test   Oath   Act   was   passed   by   the 
legislature,    which    required    all    lawyers    as    a 
condition    precedent    to    the    right    of   practice 
in   the  courts   in   civil   cases,  to  take  and  sub- 
scribe a   strongly   worded   oath  of  loyalty.     A 
few  Southern  lawyers,  among  them  Judge  Hey- 
denfeldt,   Gregory    Yale,    and    E.    J.    Pringle, 
could  not  conscientiously  subscribe  to  this,  and 
accordingly   withdrew   from   the   courts.     The 
act   was   repealed   several   years   later,   but   by 
that  time  Judge  Heydenfeldt  had  obtained  a 
lucrative  office  business  as  advisory  counsel  tn 
many  large  firms,  capitalists,  and  corporations, 
and  he  adhered  to  that  department  of  the  pro- 
fession.    He  tried  a  few  large  mining  cases  in 
the  District  Court  of  Storey  county,  Nevada, 


History  of  the  Bench  and  Bar  of  California. 


459 


at  a  lime  when  a  test  oath  act,  similar  to  the 
California  statute,  was  in  operation  in  that 
State,  but  he  was  not  required  to  take  the  oath, 
the  act  being. treated  as  a  dead   letter. 

The  Judge  accumulated  a  large  fortune,  but 
his  expenses  and  charities  were  a  constant 
and  serious  drain  upon  it.  To  the  yellow  fever 
fund,  in  the  seventies,  he  made  a  princely  con- 
tribution, and  had  it  credited  to  "cash." 

In  person  he  was  diminutive,  with  small 
hands  and  feet,  dark  hair  and  complexion,  a 
kind  eye,  well-shaped  head  and  finely  chiseled 
features.  His  weight  was  suited  to  his  stature, 
he  was  well  preserved,  and  possessed  distin- 
guished dignity  of  manner.  A  man  univers- 
ally esteemed,  he  yet  held  himself  aloof  from 
the  people.  He  was  not  a  man  of  the  masses. 
We  once  heard  him  on  the  stump  addressing 
a  multitude  of  the  unterrified.  He  was  out  of 
place.  He  disliked  all  gloss,  and  glitter,  and 
tinsel  and  was  void  of  arrogance  and  affecta- 
tion. He  knew  sorrow,  bore  the  burden  of 
care,  and  was  thrown  amid  all  the  snares  of 
pioneer  adventure,  yet  he  kept  the  mood  and 
habit  of  the  philosopher. 

Judge  Heydenfeldt  died  at  San  Francisco 
on  the  15th  of  September,  1890. 

In  the  Supreme  Court,  sitting  at  San  Jose, 
in  1853,  Solomon  A.  Sharp,  of  San  Francisco, 
in  the  midst  of  an  argument,  was  given  to 
understand  by  Judge  Heydenfeldt  that  the 
court  did  not  agree  with  him.  He  continued 
his  argument  in  spite  of  admonitions  from 
the  bench,  until  finally  told  in  plain  terms  that 
the  court  was  confirmed  in  its  opinion,  when 
he  ceased  to  struggle,  remarking,  "Well,  it's 
an  honest  difference  of  opinion."  "Yes,"  said 
Judge  Heydenfeldt,  in  his  polite  and  quiet 
way,  "but  it's  a  very  material  one." 


TOD   ROBINSON. 


The  ancestors  of  this  gentleman  were,  on 
his  father's  side  English,  on  his  mother's 
Scotch-Irish.  They  emigrated  to  North  Caro- 
lina at  so  early  a  day  that  all  tradition  of  the 
event  is  lost.  His  father  was  a  merchant  and 
planter  in  that  State.  At  a  time  when  it  was 
a  life  office,  he  held  the  position  of  clerk  of  the 
County  Court  for  Anson  county.  In  this 
county,  Tod  Robinson  was  born,  A.  D.  1812. 
When  he  was  quite  young,  his  father  resigned 
his  office  and  removed  with  his  family  to  Ala- 
bama. 

Tod  Rol)inson  came  to  California  from 
Texas,  by  way  of  Panama,  in  September,  1850. 


He  landed  at  San  Francisco,  but  not  tarrying 
there,  pushed  on  up  the  Sacramento  river  to 
Sacramento  city,  then  the  liveliest  and  busiest 
mining  camp  in  the  State.  Here  he  settled, 
and  entered  immediately  on  the  practice  of  law. 
He  very  soon  attained  prominence  and  success. 
He  had  not  been  in  the  city  a  year  when 
Judge  Thomas  resigned  his  position  as  District 
judge  of  the  Sixth  judicial  district,  embracing 
Sacramento  county,  and  Governor  Burnett  ap- 
pointed Mr.  Robinson  to  fill  the  vacancy.  For 
this  honorable  and  responsible  position  his 
extensive  legal  attainments  and  his  incorrupt- 
ible integrity  eminently  fitted  him.  During 
the  short  period  of  his  occupancy  of  this  office, 
Judge  Robinson  won  the  undivided  esteem  of 
the  people  of  his  district.  In  the  list  of  able 
jurists  who  graced  the  bench  of  the  Sixth  judi- 
cial district.  Judge  Robinson's  name  shines 
with  unfading  lustre.  He  had  occupied  the 
position  only  a  few  months,  when,  in  October, 
185 1,  the  Whig  party,  to  the  principles  of  which 
he  was  devotedly  attached,  unsolicited,  nomi- 
nated him  as  their  candidate  for  Supreme 
Judge,  whereupon  he  resigned  his  place  on  the 
district  bench,  and  accepted  the  nomination 
for  the  higher  office.  The  Whig  party  being 
in  a  minority,  he  was  defeated.  The  election 
over,  and  having  aided  so  materially  in  pre- 
serving the  -organization  of  his  party,  at  the 
expense  of  his  own  personal  advancement  and 
comfort.  Judge  Robinson  resumed  practice  in 
Sacramento.  He  formed  a  partnership  with 
Murray  Morrison,  since  Judge  of  the  Seven- 
teenth judicial  district  which  continued  for 
two  years.  In  1853,  Judge  Robinson  was 
again  nominated  by  his  party  for  the  Supreme 
bench.  Anticipating  defeat,  he  yet  obeyed  with 
alacrity  the  call  of  his  party  to  carry  the 
banner  of  Whiggery  in  the  final  charge  upon 
the  triumphant  foe.  The  result  was  as  ex- 
pected— the  utter  overthrow  of  the  proud  and 
gallant  party  to  whose  fortunes  he  had  clung 
so  steadfastly,  and  in  whose  last  struggles  he 
had  been  so  conspicuous.  Judge  Robinson 
again  returned  to  the  practice  of  his  nrofes- 
sion  in  Sacramento.  Soon  after  the  general 
election  in  1853,  he  entered  into  partnership 
with  II.  O.  Beatty,  lately  Chief  Justice  of  the 
Supreme  Court  of  Nevada,  and  James  B.  Hag- 
gin,  an  old  and  wealthy  citizen  of  Sacramento 
and  San  Francisco,  now  residing  in  New  York. 
This  partnership  lasted  two  or  three  years, 
when  Mr.  Hagtrin  withdrew,  and  his  place  in 
the  firm  was  filled  by  Hon.  C.  T.  Botts,  after- 
wards   Judge    of    the    Sixth    judicial    district. 


460 


History  of  the  Bench  and  Bar  of  California. 


Judge  Bolts  being  appointed  to  the  bench,  Mr. 
Heacock  subsequently  State  senator  from  Sac- 
ramento, entered  the  firm.  Judge  Robinson's 
connection  with  Judge  Beatty  continued  till 
the  year   1862. 

Judge  Robinson  confined  himself  exclusively 
to  his  profession  for  several  years,  during 
which  time  he  built  up  an  extensive  and  lucra- 
tive business.  During  this  important  period 
in  the  history  of  Sacramento,  his  fidelity  to 
his  profession  and  his  able  management  of  the 
heavy  litigation  he  was  called  upon  to  conduct, 
spread  his  fame  as  a  lawyer  throughout  Cali- 
.  fornia. 

In  1862,  he  accepted  the  Democratic  nomi- 
nation for  attorney-general.  In  1863.  he  was 
nominated  by  the  same  party  for  Supreme 
Judge,  upon  the  reorganization  of  the  Supreme 
Court.  On  both  occasions  he  was  defeated 
with    the    rest   of   his   ticket. 

He  had  now  resided  in  Sacramento  for  thir- 
teen years.  The  practice  of  law  being  almost 
dead  in  that  place,  which  the  great  flood  of 
1860-61  had  almost  depopulated,  he  removed 
to  Virginia  City,  Nevada,  where  he  resided 
eighteen  months.  While  residing  in  that 
State,  he  was  nominated  by  the  Democratic 
State  convention  for  clerk  of  the  Supreme 
Court.  He  could  easily  have  been  nominated 
for  the  higher  place  of  Supreme  Judge,  but 
his  friends  determined  to  give  him  the  nomi- 
nation for  the  first-named  position,  because 
of  the  great  emoluments  attached  to  it.  How- 
ever, his  party  being  defeated,  the  hopes  of 
his   friends   were  not   realized. 

Early  in  the  year  1865,  Judge  Robinson  re- 
turned to  California,  and  settled  with  his 
family  in  San  Francisco,  where  he  resided  until 
his  death. 

Judge  Robinson  ranked  high  as  an  impres- 
sive and  eloquent  speaker.  He  was  a  cogent, 
logical  reasoner.  a  racy  debater,  and  could 
hurl  the  shaft  of  irony  with  cutting  effect. 
His  clear  and  mellow  utterances,  his  earnest 
manner,  his  dignified,  polished  diction,  often 
reaching  solemnity  in  its  calm  and  graceful 
flow,  rendered  him  at  all  times  an  agreeable 
and  pleasing  speaker.  He  was  quite  fond  of 
poetry,  and  a  close  student  of  Shakespeare. 
In  addressing  public  audiences,  he  was  decid- 
edly happy  in  his  quotations  from  the  immor- 
tal bard  of  nature.  His  private  life  was  with- 
out  blemish. 

Judge  Robinson,  before  he  became  of  age, 
thought  of  studying  theology ;  in  fact,  he  did 
take  up  the  study,  with  a  view  to  becoming  a 


clergyman  of  the  Presbyterian  Church.  Al- 
though he  changed  his  mind  to  that  of  the  law 
he  was  always  a  Bible  student  and  acquired  a 
large  fund  of  Biblical  and  theological  knowl- 
edge. 

He  married  at  Galveston,  Texas,  before  re- 
moving to  California,  ^Nliss  Mary  Crittenden, 
sister  of  A.  P.  Crittenden.  Mrs.  Robinson 
died  at  San  Francisco  some  years  ago.  Among 
their  children  surviving  are  C.  P.  Robinson, 
the  San  Francisco  attorney,  and  Mrs.  Salis- 
bury, the  wife  of  the  capitalist,  Monroe  Salis- 
bury. 


ISAAC    E.    HOLMES. 

Isaac  E.  Holmes  was  one  of  the  most  inter- 
esting characters  that  ever  adorned  the  legal 
profession  in  any  country.  He  brought  to 
California  a  national  fame.  A  native  of  South 
Carolina,  he  graduated  from  Yale  college  and 
studied  law  with  Daniel  Lord.  He  com- 
menced the  practice  in  Charleston,  South  Car- 
olina. His  splendid  gifts  of  oratorv  added 
to  his  great  learning,  made  him  prominent  in 
politics  at  an  early  age.  He  represented  his 
native  State  in  the  lower  house  of  Congress 
for  six  consecutive  terms.  The  old  Congres- 
sional Record  reveals  his  power  of  expression 
and  his  brilliancy  in  debate.  Some  speci- 
mens of  his  eloquence  are  to  be  found  in  Wil- 
liston's  "Eloquence  of  the  United  States." 

Holmes  came  to  California  in  1851.  For 
some  years  he  boarded  with  Thos.  W.  Freelon, 
John  B.  Felton,  and  other  genial  legal  spirits, 
at  Madame  Parrain's  celebrated  nrivate  board- 
ing-house on  Clay  street,  near  Powell,  where 
the  table  was  constantly  kept  "on  a  roar"  by 
his  animated  and  sparkling  talk.  His  literarv 
taste  was  superb — absolutely  exquisite.  He 
was  impulsive,  excitable,  yet  peculiarly  gentle 
and  companionable.  Of  course,  the  circle  of 
his  friends  was  very  large.  He  was  especially 
accomplished  in  English  and  Latin  literature. 
His  conduct  of  causes  showed  very  keen  pow- 
ers of  observation,  and  occasionally  he  would 
turn  aside  from  stern  argument  and  indulge 
in  the  most  melting  pathos.  An  eloquent 
speech  or  a  tender  poem  would  powerfully 
move  him.  Wlien  Freelon  read  to  him  Web- 
ster's oration  on  Greek  Independence,  he  be- 
trayed violent  emotion.  When  the  Judge,  at 
another  time,  in  one  of  their  delightful  chats, 
recited  Tennyson's  "Bugle  Song,"  he  "died 
tears.  He  was  a  money-making  man,  but  an 
improvident   one.      He    was    constantly    specu- 


History  of  the  Bench  and  Bar  of  California. 


461 


lating.  He  had  little  btisiness  sagacity,  yet 
made  and  lost  several  fortunes.  At  one  time 
he  bought  an  interest  in  a  Hour  mill,  which 
he  exchanged  for  the  since-well-known  Pied- 
mont Springs  property.  At  the  outbreak  of 
the  war,  he  returned  with  his  family  to  the 
East,  with  the  firm  conviction  that  his  great 
influence  in  his  native  State,  as  well  as  in 
Washington  circles,  could  be  effectively  ex- 
erted in  the  interest  of  peace.  He  labored 
faithfully  to  this  end,  but  of  course  to  no  pur- 
pose. He  died  in  Charleston,  South  Carolina, 
in  1864.  After  his  death,  Captain  Blanding, 
who  held  his  power-of-attorney,  sold  the  Pied- 
mont property  for  $30,000,  which  sum,  in  addi- 
tion to  other  real  estate  which  he  had  left  in 
California,  placed  his  family  above  the  reach 
of  want.  His  memory  is  delightful  as  song — 
let  it  blend  with  the  melody  that  so  moved 
his   soul : 

THE    BUGLE    SONG. 

Tlie  splendor  falls  on  castle  walls. 

And  snowy  summits  old  in  story; 

The  long  light  shakes  across  the  lakes 
And  the  wild  cataract  leaps  in  glory. 

Blow,  bugle,  blow,  set  the  wild  echoes  flying; 

Blow,  bugle,  answer  echoes,  dying,  dying,  dy- 
ing. 

O  hark,  O  hear !  how  thin  and  clear, 
And  thinner,  clearer,  farther  going ! 

O,  sweet  and  far,  from  cliff  and  scar, 

The  horns  of  Elfland  faintly  blowing! 

Blow,  let  us  hear  the  purple  glens  replying ; 

Blow,  bugle,  answer  echoes,  dying,  dying,  dy- 


O,  love,  they  die  in  yon  rich  sky, 

They  faint  on  hill  or  field  or  river, 

Our  echoes  roll  from  soul  to  soul, 
And  grow  forever  and  forever. 

Blow,  bugle,  blow,  set  the  wild  echoes  flying. 

And  answer,  echoes,  answer,  dying,  dying,  dy- 
ing. 


GEORGE  CADWALADER. 

One  day  in  1855,  in  Sacramento  city,  as 
George  Cadwalader  stood  behind  his  rude  mer- 
cantile counter,  looking  through  the  window, 
musing  over  the  actualities  of  the  past  and 
the  possibilities  of  the  future,  he  said  to  him- 
self, "I  will  become  a  lawyer." 

He  did  not  resolve  upon  sudden  impulse, 
for  that  had  been  counter  to  his  nature.  Like 
most  men  of  giant  bodily  frame,  his  physical 
movements  were  slow.  Conformably,  his  men- 
tal  processes    were   deliberate.     He   had   long 


passed  the  age  at  which  the  average  law  stu- 
dent takes  up  the  noble  science.  His  sudden 
resolution  to  embrace  the  legal  profession  was 
a  departure  from  an  established  law  of  his 
being.  It  proceeded  from  intuition,  probably. 
If  he  had  failed  in  his  efforts  to  become  a 
lawyer,  we  might  censure  him  for  not  staying 
behind  his  counter.  But,  as  he  achieved  suc- 
cess, we  must  be  glad  that  he  emerged  from 
bags  and  bottles  to  enter,  not  a  more  honor- 
able, but  a  more  delightful  realm. 

George  Cadwalader  was  born  in  Zanesville, 
Ohio,  in  1830.  His  great  grandfather,  a  na- 
tive of  Wales,  settled  in  Pennsylvania  two 
years  before  William  Penn,  and  lies  buried  in 
the  churchyard  at  Chester,  near  Philadelphia. 
George  was  the  first  lawyer  of  his  line,  as  far 
as  it  can  be  traced  back.  He  received  a  com- 
mon school  education  in  Ohio,  and  came  with 
his  father,  and  father's  family,  to  California  in 
1849.  The  route  was  unusual  and  picturesque; 
down  the  Mississippi  to  New  Orleans,  thence 
to  the  mouth  of  the  Rio  Grande,  thence  across 
Mexico  to  Mazatlan,  thence  in  a  schooner  to 
San  Francisco,  which  was  reached  in  July, 
1849.  The  family  settled  in  Sacramento,  where 
the  father  died  in  1879,  aged  seventy-nine 
years.  The  latter  had  been,  at  different  times, 
a  steamboat  captain,  a  canal-builder  and  the 
owner  of  a  flour  mill.  He  was  much  given  to 
the  study  of  science. 

Young  Cadwalader  went  at  once  to  the 
p'incs.  He  was  nineteen  years  old.  The  vir- 
gin sands  panned  out  to  him  his  share  of  gold, 
?nd  in  two  years  he  became  a  merchant.  He 
went  back  to  Sacramento  and  followed  mer- 
cantile life  until  1855,  being  once  utterly  ruined 
financially  by  the  great  fire  of  1852. 

In  1S55,  as  stated,  he  determined  to  become 
a  lawyer.  It  was  a  bold  resolve.  He  was  not 
a  collegiate.  He  was  twenty-five,  and  the  year 
was  '55;  the  Sacramento  bar  was  then  what 
it  has  never  been  since;  that  is,  there  were 
never  so  many  bright  minds  at  that  bar  as  at 
that  time. 

Mr.  Cadwalader  went  to  Colonel  Philip  L. 
Edwards,  and  said  he  would  like  to  study  law. 
Colonel  Edwards  encouraged  him,  told  him  to 
study — to  read  every  book  in  his  library,  if 
lie  wanted  to.  and  when  he  wanted  to  ask  a 
(|uc<tion  or  a  dozen  questions,  to  do  so — and 
to  make  that  dffice  his  place  of  study  so  long 
as   it   pleased   him. 

The  young  man  was  a  close  reader,  and  a 
vary  observer,  but  he  did  not  study   law  any 


462 


History  of  the  Bench  and  Bar  of  California. 


longer  than  the  law  allowed,  as  the  saying 
goes.  He  studied  only  nine  months.  He  was 
eager  to  get  into  harness,  for  boyhood  was  far 
behind  him. 

In  March,  1856,  he  was  admitted  to  the  Su- 
preme Court  and  in  the  same  month  made  his 
maiden  argument  before  the  Sixth  District 
Court  (Judge  A.  C.  Monson)  in  a  case  which 
involved  the  jurisdiction  of  the  old  Superior 
Court  of  San  Francisco.  He  had  the  good  for- 
tune to  prevail  in  this  case,  and  so  to  set  out 
auspiciously    upon    his   profession. 

When  Judge  Stephen  J.  Field  was  Chief 
Justice  of  our  State  Supreme  Court,  he  ap- 
pointed Mr.  Cadwalader  chairman  of  the  board 
of  examiners  to  pass  on  the  qualification  of 
applicants  for  admission  to  the  bar.  He  held 
this  place  of  honor  without  emolument  for 
three  years.  The  questions  put  by  him  to  the 
Blackstones  in  embryo  must  have  elicited 
many  original  answers.  We  recall  one.  The 
stereotyped  question  of  "What  is  law?"'  was 
put  to  a  dish-washer  who  had  "studied  law," 
and  had  presented  himself  for  examination. 

Question:     "What  is  law?" 

Answer :  "A  system  devised  by  Parliament 
to  prevent  the  rich  from  oppressing  the  poor." 

Mr.  Cadwalader  had  the  pleasure  of  meeting 
E.  D.  Baker  at  the  bar  on  the  occasion  of  that 
eloquent  man's  first  appearance  in  the  interior 
of  the  State.  He  did  not  feel  much  pleasure 
when  he  found  who  was  to  be  his  adversary, 
for  Baker,  though  our  valleys  had  not  yet  re- 
sounded with  his  voice,  nor  our  hills  echoed 
back  his  silver  tones,  had  even  then  a  national 
fame  as  a  speaker.  Cadwalader  met  him  be- 
fore Judge  A.  C.  Monson  and  a  jury  in  Sacra- 
mento. Mr.  Joseph  W.  Winans  was  suing 
Hardenbergh  &  Henarie,  of  the  Orleans  Hotel, 
to  recover  $3000  on  a  promissory  note,  given 
for  legal  services.  It  is  not  often  that  one  can 
stand  against  his  own  note.  The  defense  was 
made  by  Hardenbergh  alone,  who  said  his 
partner  made  the  note  after  the  firm  was  dis- 
solved. Henarie  himself  testified  to  the  con- 
trary. Baker  for  the  defendants  made  a  felici- 
tous effort — of  course,  he  did — but  betrayed 
clearly  that  he  was  overwhelmed  by  the  evi- 
dence. The  plaintiff  secured  a  verdict,  and, 
an  appeal  being  taken,  the  Supreme  Court 
aflfirmed   the   judgment. 

From  the  time  he  commenced  practice,  in 
1856,  Mr.  Cadwalader  was  continuously  en- 
gaged in  his  professional  work.  He  never  ran 
for  office.  His  practice  embraced  all  kinds 
of  cases,  and,  like  McAllister,  he  was  not  as- 


signed to  any  specialty.  He  never  had  a  part- 
ner. He  was,  perforce,  a  great  traveler.  He 
was  frequently  seen  in  San  Francisco,  and  the 
visitor  to  any  court-house  of  the  interior  was 
more  likely  to  meet  him  than  any  other  non- 
resident lawyer.  He  said  to  us  once  that  this 
feature  of  his  practice  was  very  agreeable  to 
him.  He  liked  to  try  a  case  at  San  Francisco 
this  week,  at  Sacramento  next,  then  strike  for 
a  mountain  court-room.  His  movements  re- 
called those  of  leading  lawyers  in  the  older 
states  at  an  earlier  day — they  kept  swinging 
round  the  circle  of  the  circuit. 

The  extent  of  this  gentleman's  practice  may 
be  realized  when  it  is  said  that  he  argued  some 
fifty  .cases  per  year  in  the  Supreme  Court 
alone.  The  published  reports  will  not  reveal 
so  many,  as  very  manj'  decisions  do  not  ap- 
pear therein.  Some  industrious  law-compiler 
could  make  a  very  valuable  book  of  the  most 
important  unpublished   decisions. 

In  a  case  which  he  took  to  the  Supreme 
Court,  he  had  the  principle  established  that 
telegraph  companies  were  common  carriers  and 
were  held  to  the  same  kind  of  legal  responsi- 
bility. Subsequently,  the  territory  of  Nevada 
gave  a  certain  telegraph  company  the  exclusive 
right  to  run  wires  through  that  territory ;  and 
the  grant  was  confirmed  by  the  Nevada  State 
constitution.  Despite  this,  the  Atlantic  and 
Pacific  Telegraph  Company  ventured  to  invade 
the  sagebrush  state.  Litigation  followed,  of 
course,  and  the  company  went  into  court  with 
a  great  array  of  counsel.  Mr.  Cadwalader 
represented  the  Atlantic  &  Pacific.  He  made 
the  point  that  the  Nevada  constitution  con- 
flicted with  the  Constitution  of  the  United 
States — that  telegraphing  was  commerce,  and 
as  such  its  regulation  was  beyond  the  reach 
of  a  state.  The  Nevada  Supreme  Court, 
through  Judge  B.  C.  Whitman,  agreed  with 
him,  holding  that,  although  the  telegraph  was 
unknown  at  the  time  of  the  adoption  of  the 
Federal  Constitution,  it  fell  under  the  head  of 
commerce  as  therein  used,  inasmuch  as  it  was 
a   great   instrument   of   commerce. 

When  the  California  Pacific  railroad  passed 
into  the  possession  of  the  Central  Pacific,  the 
road  was  heavily  mortgaged  to  German  bond- 
holders. The  latter  brought  suit  to  have  the 
California  Pacific  Company  declared  bankrupt, 
because  of  its  failure  to  pay  coupons.  Mr. 
Cadwalader  represented  the  bondholders,  and 
he  prevailed.  The  elaborate  opinion  of  Judge 
Ogden  HoflFman  may  be  found  in  the  Na- 
tional Bankruptcy  Register,  Volume  XI,  page 


^%* 


George    Cad'walader 


History  of  the  Bench  and  Bar  of  California. 


463 


103.  It  has  been  followed  by  the  bankruptcy 
courts  throughout  the  United  States.  The 
case  was  appealed  to  the  United  States  Cir- 
cuit Cf"":rt.  where  it  was  tried  before  Judges 
Fiel<i  and  Sawyer.  Before  any  formal  decis- 
ion was  made,  Judge  Field  stated  that  Judge 
Hoffman's  judgment  would  be  affirmed. 
Shortly  thereafter  the  Central  Pacific  Com- 
pany turned  over  to  the  German  bondholders 
bonds  worth  $2,000,000,  besides  $130,000  cash. 
In  this  controversy  Mr.  Cadwalader  had  the 
pleasure  of  confronting  Judges  S.  W.  Sander- 
son and  Robert  Robinson,  Mr.  S.  M.  Wilson, 
John  B.  Felton  and  McAllister  &  Bergin.  The 
briefs  in  this  case  were  like  books — even  the 
physical  labor  which  they  cost  must  have  been 
very  great. 

Mr.  Cadwalader  was  counsel  for  the  lady 
plaintiff  in  the  case  of  Powelson  vs.  Powelson, 
reported  in  22  Cal.  358.  His  client  obtained 
a  divorce  on  the  ground  of  extreme  cruelty, 
and  the  case  is  a  leading  one,  in  this  :  It  estab- 
lished that  extreme  cruelty  may  consist  in 
words.  In  that  case  the  defendant  had  wan- 
tonly charged  his  wife  with  adultery.  The  de- 
cision has  been  followed  ever  since. 

In  1869,  the  California  Pacific  Railroad  Com- 
pany built  its  depot  in  Sacramento  before  it 
had  devised  a  way  to  get  to  it.  The  tracks 
of  the  Central  Pacific  were  in  the  way,  and 
the  latter  company  refused  to  let  its  rails  be 
cut.  A  variety  of  suits  followed.  Finally, 
under  an  order  of  court,  the  California  Pacific, 
Mr.  Cadwalader's  client,  cut  the  tracks.  A 
commission  was  appointed  by  the  court  to 
assess  the  damages,  and  the  Central  Pacific 
was  awarded  $370,000.  Sacramento  was  not 
big  enough  to  do  justice  to  this  controversy, 
and  resort  was  had  to  San  Francisco.  Judge 
Dwindle  set  this  award  aside.  Tracks  had 
been  cut.  but  before  either  of  the  two  com- 
panies could  cut  the  other's  throat,  the  Central 
bought  out  the  California.  It  was  this  fight 
that  led  to  Judge  Sanderson's  resigning  from 
the  Supreme  bench  to  enter  the  service  of  the 
Central  Pacific. 

The  German  Catholic  congregation  of  St. 
I)oniface  once  owned  a  lot  of  land  and  place 
of  worship  on  Sutter  street,  opposite  the  Lick 
House.  San  Francisco.  It  had  been  dedicated 
to  them  forever  for  their  use  as  a  Catholic 
body.  Archbishop  Alemany  was  the  sole  trus- 
tee, and  under  the  impression  that  a  site  re- 
moved from  the  heart  of  the  city  would  bo 
more  suitable  for  the  congregation,  he  brought, 
ilirough    Messrs.    Casserly   and    R;irnes.   a    suit 


111  e(|uity  against  the  members  of  the  congre- 
gation, F.  S.  Wensinger  and  others,  to  obtain 
a  decree  for  the  sale  of  the  property,  and  the 
investment  of  the  proceeds  in  another  location. 
.\  large  majority  of  the  defendants  resisted 
tlie  suit  through  Mr.  Cadwalader.  They  were 
beaten,  and  appealed.  The  Supreme  Court 
affirmed  the  judgment,  and  the  property  was 
sold.  The  court  required  the  archbishop  to 
give  a  heavy  bond  ($140,000),  and  directed  the 
court  below  to  fix  Mr.  Cadwalader's  compensa- 
tion, the  same  to  be  paid  out  of  the  proceeds 
of  the  sale.  Judge  Morrison  fixed  Mr.  Cad- 
walader's fee  at  $1000.  The  property  was 
worth  $65,000,  but  has  since  doubled  in  value. 

This  case  stands  almost  alone.  It  conflicts 
witii  the  doctrine  oftentimes  upheld,  that  in 
this  country  the  courts  cannot  exercise  the 
power  with  which  the  Lord  Chancellor  of  Eng- 
land is  clothed;  that  he  having  control  of  char- 
ities, may  execute  them  cy  prcs;  but-  that,  in 
this  country,  the  legislature  must  grant  author- 
ity. 

Mr.  Cadwalader  did  not  often  use  his  pen  or 
voice,  except  in  the  line  of  his  profession. 
About  1857  he  contributed  a  series  of  political 
articles  and  reviews  to  the  Sacramento  Union 
over  the  name  "Socrates."  They  attracted 
wide  attention.  He  also  wrote  occasionally  an 
article  for  the  old  Standard.  Judge  Botts' 
paper.  He  made  the  principal  speech  at  the 
banquet  given  to  Judge  Botts  on  that  gentle- 
man's retirement  from  the  bench  of  the  Sixth 
District  Court.  He  wrote  the  "In  Memoriam" 
of  Judge  Joseph  G.  Baldwin,  which  appears  in 
the  Supreme  Court  reports.  Once  or  twice  he 
was  betrayed  into  verse,  but  it  was  fortunate 
for  him  that  he  did  not  have  to  depend  on 
poetry  for  a  livelihood. 

In  person  he  was  atlantcan,  like  Terry.  He 
never  did  anything  on  the  "spur  of  the  mo- 
ment." His  conduct  of  a  case  was  in  keeping 
with  his  giant  stature.  He  created  the  impres- 
sion of  immense  strength,  and  lawyers  who 
liad  not  thoroughly  equipped  themselves  to 
meet  him  felt  like  getting  out  of  his  way.  No 
ordinary  obstacle  could  check  his  progress. 
He  started  witli  caution,  forecast  with  pru- 
dence, and  moved  forward  with  wide  vision 
and  firm  purpose  to  his  goal.  He  had  none 
of  the  arts  of  the  orator,  and  made  no  attempt 
to  persuade  except  by  argument.  He  had  good 
Iiabits,  and  acquired  ;i  fine  competency. 

Mr.  Cadwalader  married  Eliza  B.  Wells  in 
1873.  The  lady  was  a  young  widow,  a  resi- 
dent   of    Iowa,    and    was    visiting    Sacramento 


464 


History  of  the  Bench  and  Bar  of  California. 


when  he  met  her.  She  was  a  tall  and  hand- 
some blonde,  of  rare  graces  and  accomplish- 
ments, and  bore  Mr.  Cadwalader  two  sons  and 
a  daughter. 

In  the  spring  of  1882,  Mr.  Cadwalader  visited 
Washington,  where  he  was  called  to  attend 
the  Supreme  Court  of  the  United  States.  On 
his  return  an  old  Californian  who  accompanied 
him  gave  us  many  laughable  reminiscences  of 
the  trip,  some  of  which  can  be  mentioned. 

Mr.  Cadwalader  seemed  to  take  particularly 
to  two  distinguished  men  who  did  not  take  to 
each  other  at  all — namely,  Roscoe  Conkling 
and  James  G.  Blaine.  He  met  them  personally, 
and  several  times  enjoyed  their  society  and 
conversation.  After  observing  the  two  Sena- 
torial leaders,  Edmunds  and  Bayard,  he  de- 
clared they  were  overrated ;  that  their  fires 
were  banked  up.  and  it  would  take  another  re- 
bellion to  put  them  into  healthy  life  and  ac- 
tion. 

Edmunds  was.  he  thought,  a  censor,  a  critic, 

a  fault-finder.  He  lectured  other  senators  so 
often  that  it  was  taken  as  a  matter  of  course, 
iney  rather  liked  to  hear  the  old  man  indulge 
in  his  favorite  pastime.  Bayard's  touch  would 
chill  you  on  a  hot  day,  Southron  though  he 
was.  Conkling,  a  Northern  man,  was  really 
more  a  Southern  man  in  temperament  than 
Bayard  was. 

Judge  Field,  with  whom  Cadwalader  was 
intimate,  asked  the  latter  what  he  thought  of 
the  appearance  of  the  Supreme  bench.  The 
answer  was :  "Judge,  this  is  supposed  to  be  a 
free  country,  and  if  Judges  want  to  wear  petti- 
coats, I  don't  know  any  law  against  it ;  but  I 
am  not  impressed  with  the  spectacle." 

He  met  H.  J.  Jewett,  who  impressed  him 
very  favorably.  Jewett  was  a  New  York  law- 
yer, had  his  barrel  of  money,  a  fine  presence, 
was  receiver  for  the  Erie  railroad,  at  a  higher 
salary  than  was  .ever  paid  before  for  similar 
services  ($40,000  a  year),  and  on  the  whole  was 
quite  a  respectable  fellow. 

Blaine  also  made  a  decided  impression  on 
the  Californian.  His  short  hair  had  taken 
on  a  delicious  white,  evidently  the  product  of 
toil  rather  than  age.  His  build  was  compact, 
his  articulation  vigorous,  his  ideas  precise,  his 
conversation  full  of  intelligence  and  charm. 
He  would  captivate  almost  anybody,  but  Conk- 
ling. Conkling  was  chivalrous  and  generous, 
a  warm  friend  and  a  warm  hater.  His  chief 
consolation  in  retirement  was  that  Blaine  was 
in  the  same  fix.  But  Blaine  was  irrepressible. 
He   livd   near   the  White  House   in  br-lliant- 


expectancy.  He  was  very  approachable  and 
companionable.  He  would  ask  you  where  you 
were  from,  where  you  were  born,  and  extract 
from  you  all  you  ought  to  tell,  and  converse 
in  a  way  to  please  both  you  and  him. 

"What  thing  has  chiefly  attracted  your  at- 
tention in  Washington?"  Blaine  asked  Cadwal- 
ader. "The  fact  that  the  wise  men  are  in 
retirement  and  the  stars  yet  pursue  their 
courses,"  was  the  reply.  After  a  moment'^ 
hesitation,  Blaine  said,  in  pleasing  recognition 
of  the  compliment,  "I  never  thought  I  was  a 
wise  man  but  once.  I  was  at  Harrisburg  with 
a  friend.  We  were  invited  to  a  game  of  poker. 
We  did  not  accept.  We  were  urged,  and  my 
friend  yielded.  I  held  out.  My  friend  carried 
everything  before  him,  and  I  told  him  at  the 
time  that  we  were  two  of  the  wisest  men  of 
the  country — he  had  won  all  the  money,  and 
I  had  kept  out  of  the  game." 

"They  are  trying  to  handicap  Blaine."  said 
Cadwalader,  "but  they  can't  do  it.  His  skirts 
are  clear.  You'd  think  so  if  you  saw  him — if 
for  no  other  reason,  because  you  would  believe 
that  no  man  could  entrap  him." 

Blaine's  question,  put  to  Cadwalader,  brings 
to  mind  the  entry  of  Nesmith,  of  Oregon,  into 
the  United  States  senate,  A.  D.  1861.  On  the 
day  he  was  sworn  in,  after  adjournment,  he  got 
into  a  pleasant  chat  with  half  a  dozen  sena- 
tors. 

"Mr.  Nesmith,"  said  Senator  Wilson,  "what 
has  surprised  you  most  in  Washington?" 

"Well."  answered  Nesmith,  "when  I  h.nd  got 
settled  in  my  seat,  and  took  a  good  look  at  all 
of  you,  I  said  to  myself.  T  wonder  how  in  the 
devil  I  got  here.'  " 

"Oh,  you  will  feel  perfectly  at  home  when 
you  come  to  know  us,"  said  Wilson. 

"And  the  next  thing  I  said  to  myself  was," 
continued  Nesmith  (not  noticing  the  remark  of 
the  Massachusetts  senator),  "T  wonder  how 
in  the  devil  all  the  rest  of  these  fellows  got 
here?'  " 

At  the  opening  of  the  year  1884,  Mr.  Cad- 
walader removed  to  San  Francisco.  He  had 
been  there  only  about  one  year  when  he  died. 
His  estate,  which  was  administered  upon  there, 
was  appraised  at  $60,000. 


N.  GREENE  CURTIS. 

N.  Greene  Curtis  was  a  bar  leader  with  a 
large  practice  in  Central  and  Northern  Cali- 
fornia for  forty  years  and  more.  He  was  a 
public  man  of  exceptional  popularity,  and  won 


History  of  the  Bench  and  Bar  of  California. 


465 


his  political  contests  in  a  county  where  his 
party  was  accustomed  to  defeat.  A  native  of 
North  Carolina,  he  came  to  California  in  1850, 
locating  in  Sacramento,  where  he  lived  until 
his  death.  In  1853,  at  the  age  of  twenty-seven, 
he  was  elected  city  recorder,  or  police  judge,  of 
Sacramento,  and  held  the  office  by  re-election 
for  three  terms.  We  once  saw  him  leave  his 
court-room  in  the  old  building  that  commanded 
a  view  of  Front  street,  running  along  the  river, 
walk  slowly  down  the  middle  of  the  thorough- 
fare with  his  eyes  on  the  ground  for  a  block 
o'r  so.  and  escort  back  to  jail  a  countryman 
who  had  beaten  with  a  board  a  balking  horse 
until  the  blood  trickled  from  the  creature's 
flank.  It  was  the  first  time  we  ever  saw  a 
Judge  arrest  a  man.  Judge  T.  H.  Wells, 
recorder  of  Santa  Monica,  was  compelled  to 
arrest  a  man  on  the  street  there  as  late  as  1899 
for  annoying  some  ladies.  It  is  a  fact  that 
policemen  are  sometimes  not  on  hand  when 
wanted. 

Leaving  the  bench,  Judge  Curtis  engaged  in 
law  practice  until  about  1885,  when  he  retired 
with  a  large  competency  and  a  fine  home.  It 
has  been  the  lot  of  few  men  to  enjoy  such 
unbroken  success.  He  was  of  fine  person  and 
address,  a  really  good  public  speaker,  but  noth- 
ing like  the  orator  some  of  his  admirers 
thought  him  to  be.  Polished,  but  frank,  there 
was  much  charm  in  his  manner  and  speech. 
Everybody  knew  him  and  liked  him.  This  was 
the  secret  of  his  habit  of  walking  with  his 
eyes  down,  especially  between  his  home  and 
his  office.  Every  other  man,  woman  and  child 
was  inclined  to  stop  him  and  say  a  word,  and 
life  was  too  short  for  this. 

That  other  early  Sacramento  advocate.  Judge 
James  H.  Hardy,  "Tim"  Hardy,  furnished  an 
interesting  contrast  to  "Greene"  Curtis  in  this 
respect.  He  was  less  polite  and  less  popular, 
but  was  as  universally  known,  and  he  con- 
sumed from  one  to  two -hours  in  walking  the 
half-mile  between  home  and  office,  because  so 
many  persons  would  stop  him  to  talk.  Indeed, 
he  never  arrived  at  any  goal  on  time. 

The  most  important  case  with  which  N. 
Greene  Curtis  was  connected  was  that  of  Mrs. 
Laura  A.  Fair,  who  took  the  life  of  the  emi- 
nent lawyer.  A.  P.  Crittenden,  on  the  Oakland 
ferry-boat,  November  3,  1870.  The  slayer, 
after  being  convicted  of  murder  and  sentenced 
to  be  hung,  was  granted  a  new  trial  "on  a 
technicality."  Curtis,  who  had  not  been  her 
attorney  before,  was  now  brought  in,  and,  in 
the  language  of  the  day,  "cleared  her." 


Curtis  was  a  Democrat.  He  was  elected 
to  the  lower  branch  of  the  legislature  in  1861, 
and  twice  elected  to  the  State  senate,  in  1867 
and  in  1877.  His  legislative  record  could  be 
made  the  subject  of  an  interesting  article. 
He  had  been  a  Whig  in  earlier  days.  In  i860 
he  was  a  Major-General  in  the  N.  G.  C.  (his 
own  initials).  He  made  the  annual  address 
at  the  State  fair,  September  20,  1877.  Some 
ten  years  later  (and  about  ten  years  before 
his  decease)  he  was  general  solicitor  for  the 
Southern  Pacific  Railroad  Company,  at  the 
capital,  and  he  read  a  paper  at  a  meeting  of 
raidroad  managers  at  Chicago,  February  22, 
1887.  On  August  8,  1887,  he  testified  before 
the  Pacific  railway  commission  at  San  Fran- 
cisco. He  was  grand  master  of  the  Grand 
Lodge  of  Masons  for  four  years.  His  end 
came  while  he  was  seated  in  a  chair  in  his 
bed-room,  in  the  early  morning  of  July  12,  1897. 
His  years  were  seventy-one. 


JOHN  W.  DWINELLE. 

John  W.  Dwindle,  who  is  referred  to 
in  the  article  on  the  "Adoption  of  the  Com- 
mon Law,"  was  mysteriously  drowned  at  Port 
Costa,  January  8,  1881.  Among  his  many  able 
public  addresses,  the  most  interesting  to  us 
has  always  been  that  delivered  at  the  laying 
of  the  corner-stone  of  the  San  Francisco  City 
Hall,  December  28,  1871.  His  "Judicial  Trial 
of  Jesus"  is  in  the  Bulletin  of  March  6,  1877. 
He  practiced  in  San  Francisco  for  thirty  years. 
He  made  his  home  in  Oakland,  and  repre- 
sented Alameda  county  in  the  Assembly,  1867- 
68.  He  was  a  native  of  New  York,  and  si.xty- 
two  years  old  at  his  death.  A  heavy-built  man, 
he  was  yet  never  sluggish,  and  crossed  the 
great  bay  nearly  every  day.  He  was  a  genial 
talker,  and  had  much   public   spirit. 


*Curtis  did  a  little  acting  in  his  address  to 
the  jurj'  in  this  Fair  case,  which  was  not  at  all 
happy,  although  no  harm  came  of  it.  After 
expressing  his  confidence  that  the  jury  would 
accpiit  his  client,  he  turned  towards  her,  and. 
looking  in  her  face,  said,  "But,  Madame,  if 
you  should  be  executed !"  We  sat  close  by, 
and  thought  of  Baker  and  Tom  Fitch  and  Edg- 
crton,  and  we  involuntarily  compared  this 
performance  to  that  of  Hypcrides,  who,  while 
defending  the  irresistible  Phrync  on  a  charge 
of  atheism,  when  he  thought  his  eloquent 
words  were  failing,  suddenlj'  unveiled  the 
bcaulifid  woman's  bosom  to  the  assembly  of 
her  judges — she  being  immediately  acquitted 
c'lnd  carried  in  triumph  to  the  Temple  of  Venus 
— so  thev  sav. 


History  of  the  Bench  and  Bar  of  California. 


Wc  write  these  lines  of  Mr.  Dvvinelle,  sit- 
ting in  the  office  which  he  occupied  in  1870-71, 
when  he  was  in  partnership  with  John  H. 
Saunders,  and  which  he  continued  to  occupy 
after  that  firm  was  dissolved  for  ten  years  be- 
fore his  death,  at  509  Kearny  street. 

Mr.  Dwindle  was  one  of  the  organizers  of 
the  San  Francisco  Bar  Association.  The  me- 
morial of  that  body  at  his  decease  was  pre- 
sented to  the  Supreme  Court  by  James  Mc- 
Millan Shafter.  In  moving  the  spreading  of 
the  memorial  on  the  minutes.  Mr.  Shafter 
spoke  feelingly  and  eloquently  of  prominent 
features  in  the  character  of  the  deceased — of 
his  learning  in  the  law\  of  his  affection  for  lit- 
erature, his  insatiable  appetite  for  reading,  his 
breadth  of  knowledge,  his  study  of  human 
nature,  his  devotion  to  the  classics.  "His  fre- 
quent, if  not  constant  companion,"  said  Mr. 
Shafter.  "was  his  Greek  Testament."  "Fa- 
miliar with  the  Spanish  language  and 
archives."  he  continued,  "it  was  with  him  a 
labor  of  love,  supplementing  the  work  of  Still- 
man.  Soule,  and  others,  to  gather  up  the  iso- 
lated facts  and  scraps  of  history  of  early 
times,   that   nothing   might   1)e   lost. 

"His  treatises  upon  the  history  of  Califor- 
nia and  his  labors  as  shown  in  our  legal  re- 
ports illustrate  alike  his  industry  and  his  learn- 
ing. 

"His  zeal  led  him  often  into  what  may  be 
called  curious  investigation. 

"Thus  impelled  he  entered  into  a  public 
discussion  as  to  whether  the  bay  of  San  Fran- 
cisco or  Sir  Francis  Drake's  bay  was  the  place 
which  the  great  navigator  visited  300  years  ago. 
Mr.  Dwindle  assertine  Drake's  bay.  and  a 
learned  and  accomplished  member  of  the  med- 
ical profession.  Dr.  Stillman.  maintaining  the 
claims  of  the  l)ay  of  San  Francisco  to  that 
distinction.  In  the  ardor  of  this  debate,  hear- 
ing there  was  a  copper  bolt  driven  into  the 
rocks  at  Point  Reyes,  and  finding  in  Xakluyl 
tha  a  metallic  plate  had  been  bolted  to  a  rock 
by  Drake.  Mr.  Dwindle  made  a  visit  of  explor- 
ation there.  After  answering  all  questions.  T 
furnished  him  all  necessary  aid.  Returning,  he 
seemed  in  some  sense  exultant.  Beyond  a 
gentlemanly  appreciation  of  the  kindness  which 
he  had  received,  he  seemed  to  have  noticed  lit- 
tle of  our  present  life. 

"The  white  cliffs  which  procured  for  the 
coast  the  name  of  'Nieu  Albion'  from  Drake, 
he  saw.  but  the  herds  of  game,  the  conies,  of 
which  Nakluyt  spoke,  with  the  bolt  and  plate 
of   metal,    were    not    seen.      But    the   shijis.   the 


red  cross  of  England,  the  shouts  of  her  mar- 
iners, the  sound  of  oars  and  harquebuss,  the 
Indians,  painted  and  feathered,  sights  departed, 
sounds  lost  in  air,  men  dust  for  three  centu- 
ries, he  had  brought  back  with  him  living  and 
moving  realities,  and  as  to  the  disputed  point, 
a  perfected  faith." 

After  reciting  the  circumstances  of  Mr. 
Dwindle's  death,  Mr.  Shafter  said: 

"It  was  only  the  other  day  that  I  saw  in  a 
Vermont  paper  an  obituary  notice  of  an  old 
lawyer  and  friend.  With  many  gracious  com- 
mendations from  a  generation  of  lawyers  of 
my  native  county.  I  was  declared  to  be  the 
last  survivor. 

Two  Vermont  lawyers,  both  of  whom  were 
my  partners  in  that  state,  one  of  great  emi- 
nence by  his  professional  learning,  which  was 
exhibited  in  the  great  international  case  ex 
parte  Holmes,  creating  or  making  apparent  the 
necessity  for  the  Webster  and  Ashburton 
Treaty,  both  are  dead.  Of  those  in  this  State 
with  whom  I  have  been  associated  General 
Williams  died  unhappily  and  by  violence.  Si- 
mons and  Fleming,  tracked  through  every  lane 
of  life  by  consumption,  at  last,  wearied,  gave 
up  the  contest  and  rest  from  their  pain. 

"My  brother,  an  ex-Justice  of  this  Court, 
smitten  by  disease,  the  result  of  loyal  and  in- 
ordinate labor  in  his  profession,  died  in  a  for- 
eign land.  His  prayer  for  death,  if  it  was  the 
will  of  God,  rather  than  life  with  mental  aber- 
ration, was  not  answered.  The  cup  of  bitter- 
ness was  commended  to  his  lips.  Unhappy 
paradox — outliving  the  death  of  all  that  was 
himself. 

"To  me  at  least  it  is  not  devoid  of  interest 
that  Felton,  Goold  and  Dwindle  participated 
in  the  obsequies  of  Judge  Shafter,  and  from 
the  hand  of  the  latter  was  the  just  and  honor- 
able memorial  now  a  part  of  the  records  of 
this  court.  Of  the  firms  of  Shafter  &  Goold 
and  Shafter,  Goold  &  Dvvinelle,  I  alone  re- 
main. Turning  to  the  older  members,  those 
whom  the  first  resolution  terms  'the  veterans 
and  sages  of  the  bar.'  I  find  this,  in  some  de- 
gree, the  common  experience.  In  thinking  of 
our  dead  companions,  we  gather  our  garments 
about  us  and  guard  our  footsteps,  for  we  fed 
wt'   are  treading  v.pon   graves." 

Mr.  Dwindle's  brother,  his  junior.  Samuel 
H.  Dvvinelle.  was  Judge  of  the  old  Fifteenth 
District  Court,  for  Contra  Costa  county,  and 
;i  portion  of  San  Francisco,  during  the  whole 
period  of  its  existence.  1864-1879.  He  presided 
at  the  first  trial  of  Mrs.  Fair  for  the  murder 
of  the  eminent  lawyer.  A.  P.  Crittenden,  and 
.sentenced  her  to  be  hung.  He  was  defeated 
for  Supreme  Judge  on  the  Republican  ticket 
in  1873.  He  died  suddenly  of  apoplexy,  Jan- 
uary 12,  1886,  very  nearly  sixty  years  old,  his 
brother's  age.  He  had  been  practicing  law  for 
a  few  years  in  partnership  with  David  Mc- 
Chirc. 


History  of  the  Bench  and  Bar  of  California. 


467 


FREDERICK  BILLINGS. 

Frederick  Billings  was  one  whose  "chariot 
rolled  on  fortune's  wheel."  Born  of  American 
parents  in  Vermont,  in  1823,  he  was  a  grad- 
uate of  the  University  of  that  state,  and  ar- 
rived in  California  on  April  i,  1849.  He  was 
of  the  pioneer  law  firm  of  Halleck,  Peachy  & 
Billings,  and  survived  his  associates,  General 
H.  W.  Halleck  and  Archibald  C.  Peachy.  This 
was  a  great  and  rich  law  firm.  It  owned  at 
one  time  Montgomery  Block,  in  which  its 
offices  were  always  situated.  Trenor  W.  Park 
was  a  member  of  the  firm  for  a  few  years, 
withdrawing  in  1855. 

Mr.  Billings  was  a  projector  of  the  old  Col- 
lege of  California,  which  developed  into  the 
State  University.  The  portrait  of  Bishop 
Berkeley,  which  adorns  the  interior  of  one  of 
the  university  halls,  was  his  gift,  presented 
through  President  D.  C.  Gilman,  in  1873.  The 
donor  wrote  to  President  Gilman  at  the  time 
the  following  pleasant  letter  : 

"Woodstock,  Vt.,  July  18,  1873. 

"When  I  was  in  California  in  April  last, 
you  asked  me  if  a  copy  of  Smibert's  portrait 
of  Bishop  Berkeley  in  the  Yale  School  of  Fine 
Arts  could  be  procured  for  the  university.  The 
question  was  a  felicitous  suggestion.  It  made 
known  to  me  how,  in  a  very  appropriate  way,  I 
could  give  a  little  proof  of  my  great  interest  in 
the  institution  which  maj'  be  said  to  have 
grown  out  of  the  College  of  California,  with 
whose  history  I  was  identified  through  all  its 
struggles   from   the   very   beginning. 

"I  say  in  a  very  appropriate  way,  for  it  is 
most  fit  that  he  who  gave  the  name  of  the  good 
BishoD  to  the  site  of  the  university  should 
have  the  privilege  of  placing  his  portrait  in  the 
university  halls.  And,  as  the  suggestion  was 
yours,  I  thought  by  promptly  following  it,  I 
should  give  token  of  my  great  gratification  that 
you  are  the  head  of  the  university,  and  my  sin- 
cere faith  that  you  will  harmonize  all  the  com- 
plex elements  of  such  an  institution  in  such  a 
field,  and  develop  them  into  a  great  success. 
The  portrait  will  be  on  its  way  to  you  this 
week.  You  are  familiar  with  the  original  pic- 
ture of  the  Bishop  and  his  family.  If  not  the 
only  picture  of  him,  it  is  recognized  as  the 
most  authentic.  The  portrait  is  wonderfully 
well  painted,  as  might  have  been  expected,  by 
Professor  J.  W.  Weir,  and  we  all  should  be 
gratified  for  the  special  labor  he  has  given  it. 
Please  present  it  for  me  to  the  university,  when 
you  take  possession  of  the  new  halls  at  the 
coming  commencement  in  July.  The  univer- 
sity looks  out  through  the  Golden  Gate  of  the 
Pacific  to  the  islands  of  the  sea  and  the  utter- 
most parts  of  the  earth.  The  portrait,  then, 
of  this  Christian  philosopher,  who  could  find 
in  Plato  the  revelation  of  the  New  World,  and 
who  prophesied  so  truly  of  the  course  of  em- 
pire, should  be  something  more  than  a  i)ortrait. 


It  should  be  like  an  invocation  and  inspira- 
tion of  the  largest,  broadest  and  most  earnest 
spirit  of  learning  and  Christianity.  So  may 
it   be.      Faithfully   yours, 

Frkderick  Billings. 
"To   President   D.   C.   Gilman." 

Professor  Henry  Durant  founded  the  uni- 
versity and  selected  its  site;  Mr.  Billings  sug- 
gested the  immortal  name  distinguishing  the 
spot.  A  letter  of  Mr.  Billings  upon  this  point 
appeared  in  the  San  Francisco  Bulletin  of 
August   I,   1873. 

Mr.  Billings  arrived  in  San  Francisco  on  the 
same  steamship  with  Bezer  Simmons,  who 
married  his  sister.  A  few  years  later  he  had 
become  wealthy  from  law  practice  and  invest- 
ments in  real  estate.  His  professional  work 
was  all  done  in  San  Francisco.  He  was  en- 
gaged with  his  firm  in  many  important  causes, 
and  always  had  a  large  income.  He  loaned 
John  C.  Fremont  $150,000  on  the  latter's 
princely  Mariposa  estate.  He  got  his  money 
back  when  the  estate  was  purchased  by  Hiram 
Ketchum  &  Co.,  of  New  York. 

He  was  one  of  the  six  original  members 
— three  men,  three  women — who  organized  the 
First  Presbyterian  church  of  San  Francisco, 
May  20,  1849,  Rev.  Albert  Williams  being  the 
pastor.  He  was  secretary  of  the  citizens'  meet- 
ing which  organized  the  San  Francisco  Bible 
Society,  October  30,  1849.  Ill's  was  auxiliary 
to  the  American  Bible  Society.  Mr.  Billings 
addressed  that  meeting.  On  September  14, 
1862,  he  spoke  at  a  large  mass  meeting  in  aid 
of  the  Union  Army  Relief  Fund.  He  was  a 
polished  gentleman  of  high  tone  and  quiet 
bearing;  unpretentious,  but  an  easy  and  ef- 
fective speaker. 

The  legislature  of  California  passed  a  con- 
current resolution  on  February  27,  1866,  rec- 
onmiending  Mr.  Billings  to  President  Andrew 
Johnson  as  a  member  of  the  cabinet. 

Mr.  Billings  did  not  practice  law  very  long. 
For  years,  down  to  1872,  he  gave  his  business 
(in  the  city  directory)  as  that  of  real  estate, 
still  occupying  his  old  law  offices.  He  then 
went  back  to  his  native  state,  and  there  spent 
the  last  quarter  of  his  prosperous  life.  He 
marriffl  ilirii.  for  the  first  time,  his  wife  being 
the  daughter  of  a  dentist  of  New  York  city, 
distinguished  in  his  calling.  He  made  visits 
to  California  thereafter,  and  his  eldest  son, 
Parmly  Billings,  was  born  in  this  State.  This 
son  died  in  Chicago  at  the  age  of  twenty-five, 
in   May,   1888. 

iM-cilerick    I5illings'    last    visit    to    this    Stati; 


468 


History  of  the  Bench  and  Bar  of  California. 


was   in   March,   1887,   when   he  came  with  his 
family  in  his  private  car,  "Wanderer." 

The  Billings  Library  building,  at  Burling- 
ton, Vermont,  was  Mr.  Billings'  gift.  It  was 
completed  in  August,  1885,  costing  $150,000. 
A  Burlington  correspondent  at  that  date  gave 
this  incident  of  Mr.  Billings'  start  in  life: 

"After  graduating  at  our  university  he  found 
himself,  like  most  graduates,  with  little  practi- 
cal knowledge  and  no  money.  So  one  day, 
meeting  the  late  Mayor  Catlin  of  this  city,  at 
that  time  a  prosperous  business  man,  he  solic- 
ited a  loan  of  $1000,  offering  his  integrity  as 
security.  After  some  consultation,  Mr.  Cat- 
lin advanced  the  money,  and  young  Billings 
started  for  the  then  almost  unknown  land  of 
California.  Here  at  once  he  met  with  suc- 
cess, and  shortly  returned  to  Mr.  Catlin  the 
$1000  and  interest.  Later  misfortune  over- 
took his  benefactor,  who  died  in  this  city  but 
two  years  since,  but  a  check  from  Frederick 
Billings  was  always  at  his  disposal  for  all  his 
needs,  and  the  venerable  first  mayor  of  Bur- 
lington died  with  the  satisfaction  that  he  in 
prosperity  had  assisted  one  young  man  who 
remembered  him  in  adversity.  Mr.  Billings 
is  now  in  the  prime  of  life,  possessing  good 
health  and  a  handsome  competence,  which  he 
persists  in  placing  where  it  will  do  the  most 
good." 

America,  a  Chicago  weekly,  some  time  be- 
fore Mr.  Billings'  death,  said  the  following: 

"While  the  benefactions  of  Andrew  Carnegie 
are  heralded  to  the  world  by  all  the  trumpets 
of  fame,  known  to  an  international  advertiser, 
who  knows  anything  of  the  donations  of  Mr. 
Billings  of  Woodstock,  Vermont?  And  yet 
Mr.  Billings,  in  addition  to  spending  $40,000 
in  reconstructing  the  Congregational  church 
at  Woodstock  and  giving  $50,000  to  the  Uni- 
versity of  Vermont  for  the  endowment  of  the 
library  bearing  his  name,  has  given  $50,000  to 
Amherst  college  to  endow  a  professorship  in 
memory  of  his  son,  Parmly  Billings,  who  was 
graduated  there  in  1884,  and  $50,000  to  Mr. 
Mondv's  Mount  Hermnn  school  for  boys,  to  be 
known  as  the  "Ehrick  Billings  Endowment 
Fund  "  in  memory  of  his  son  Ehrick.  All  these 
gifts  were  made  by  checks  payable  at  once  to 
the  full  amount  and  were  not  accompanied  by 
any  embarrassing  conditions.  If  Mr.  Billings 
wants  to  have  his  good  deeds  advertised,  he 
should  move  from  Woodstock  to  some  newly 
purchased  Scotch  estate." 

Mr.  Billings  had  a  distinguished  career  in 
Vermont  as  a  railroad  man.  He  bought  a  tenth 
interest  in  the  Northern  Pacific  when  the  stock 
was  at  its  lowest.  He  became  a  director,  and 
later  president  of  the  company.  He  retired 
voluntarily  with  a  fortune  of  about  $10,000,000, 


Henry  Villard  succeeding  him.  He  died  at 
his  home  in  Woodstock,  September  30,  1890. 
peacefully,  aged  sixty-seven  years. 


JAMES  A.   McDOUGALL. 

"McDougall  was  the  giant  of  this  bar.  No 
other  man  ever  left  such  a  lasting  footprint 
upon  Californian  soil." 

So  spake  to  us  a  pioneer  lawyer  now  long 
ago.  He  was  a  judicious  observer,  and  upon 
inquiry  we  found  his  opinion  concurred  in  by 
other  bar  veterans  of  nice  perception,  who 
knew  how  to  winnow  chaff  from  wheat. 

James  A.  McDougall  was  born  in  Albany 
county.  New  York,  in  November,  1817.  He 
received  a  grammar  school  education.  He 
early  evidenced  a  fondness  for  mathematics 
and  civil  engineering.  He  aided  in  the  sur- 
vey of  the  first  railroad  built  in  the  State 
of  New  York — that  between  Albany  and 
Schenectady.  After  the  completion  of  that 
work,  he  comn'enced  the  study  of  law.  Be- 
fore completing  his  studies  he  removed  to  Ill- 
inois, settling  in  Pike  county,  in  1837.  There 
he  w'as  admitted  to  the  bar,  and  speedily 
launched  into  the  full  tide  of  practice.  In 
1842,  at  the  age  of  twenty-five,  he  was  elected 
attorney-general  of  the  prairie  state  on  the 
Democratic  ticket,  and  at  the  end  of  his  term 
was  re-elected,  serving  four  years.  Small  in 
stature,  he  had  uncommon  strength  of  physi- 
cal constitution,  as  well  as  of  mind.  He  was 
a  brilliant  speaker,  skillfully  wielding  the 
weapons  of  repartee,  humor  and  sarcasm,  and 
made  himself  one  of  the  most  noted  speakers 
of  the  west.  In  Illinois  he  met  a  score  of 
men,  who,  having  become  prominent  in  that 
state,  attained,  like  himself,  a  greater  celeb- 
rity in  California — among  the  number.  Gen- 
eral Baker,  William  I.  Ferguson,  Thompson 
Campbell,  Colonel  Hoge,  Samuel  M.  Wilson, 
Judge  James  H.  Hardy,  John  R.  McConnell, 
and   O.    C.    Pratt. 

McDougall  and  Baker  were  especially  in- 
timate. Often  they  traveled  the  circuit  to- 
gether. Perhaps  the  two  men  for  whom  Mc- 
Dougall cherished  the  highest  admiration  were 
General  Baker  and  Stephen  A.  Douglas.  He 
himself  declared  that  these  two  men  were  the 
nearest  to  him  by  the  ties  of  association  and 
friendship,  and  among  the  ablest  that  ever 
discoursed  counsel  in  the  United  States  sen- 
ate. Below  will  be  given  an  allusion  of  Mc- 
Dougall to  Baker,  at  once  scholarly,  tender 
and  pathetic,  and  which  aptly  illustrates  Mc- 
Dougall's  masterly  power  of  expression. 


History  of  the  Bench  and  Bar  of  California. 


469 


In  1849  (it  may  be  recorded  but  cannot  be 
explained)  McDougall  left  Illinois  to  push 
further  west.  He  had  become  one  of  the  most 
popular  men  of  his  state.  On  the  stump  or 
in  the  forum,  his  power  was  universally  rec- 
ognized, his  legal  services  were  in  constant 
demand,  but  the  spirit  of  adventure  took  firm 
hold  upon  him.  He  made  up  an  expedition 
and  led  it  to  the  headwaters  of  the  Rio  Del 
Norte— the  purpose  being  to  explore  the  coun- 
try and  establish  a  settlement.  Having  ar- 
rived at  his  destination,  he  heard  of  the  dis- 
covery of  gold  in  California.  Returning  east, 
he  took  a  passage  with  his  family  on  the  Cali- 
fornia, the  pioneer  steamship,  for  San  Fran- 
cisco. There  he  at  once  entered  upon  the  prac- 
tice of  law.  One  year  after  his  arrival  he  was 
elected  attorney-general  of  the  state.  At  the 
close  of  his  term  he  was  elected  a  member  of 
the  lower  house  of  Congress.  In  that  body  he 
chiefly  distinguished  himself  by  his  advocacy 
of  a  Pacific  railroad.  On  this  subject  he  was 
particularly  capable  of  speaking.  He  spoke  as 
a  lawver,  a  statesman,  and  a  civil  engineer. 
He  declined  a  renomination  for  congress,  and 
resumed  the  practice  of  law.  with  the  late 
Solomon  A.  Sharp,  in  San  Francisco.  Mr. 
R.  H.  Lloyd  was  a  clerk  and  student  in  the 
office.  The  rooms  of  this  once  notable  firm 
were   at   625   Merchant   street. 

At  the  outbreak  of  the  late  war  (1861)  Gen- 
eral McDougall,  by  a  combination  of  Repub- 
licans and  Douglas  Democrats,  was  elected 
a  United  States  senator.  In  the  senate  again, 
he  took  up  his  old  theme  of  a  Pacific  rail- 
road, and.  in  addition  to  other  arguments, 
urged  the  government  to  build  the  road  as  a 
military  necessity.  He  lived  to  see  the  road 
completed. 

When  his  name  was  presented  as  a  candi- 
date for  the  senate,  his  partner,  Solomon  A. 
Sharp,  was  his  most  enthusiastic  friend.  On 
one  occasion  during  the  balloting,  the  situa- 
tion was  such  that  McDougall's  friends 
deemed  an  adjournment  for  one  day  abso- 
lutely necessary.  A  motion  to  adjourn  over 
was  voted  down.  Lee  and  Marshall's  circus 
was  tlien  performing  al  tlie  capital.  Mr.  Sharp 
went  out  and  engaged  the  entire  circus  for 
the  special  entertainment  of  the  legislators. 
He  had  the  manager  send  tickets  of  invita- 
tion to  every  solon  and  kept  the  performance 
going  all  the  next  day  and  night.  It  cost 
Mr.  Sliarp  $1,700,  but  his  purpose  was  ac- 
complished. Ncitlier  l)rancli  of  tlu-  legisla- 
ture had  a  Quorum,  and  on  the  fi)llowing  day 
his  friend  was  elected  to  the  senate.     General 


McDougall  was  one  of  the  most  brilliant  de- 
baters who  ever  sat  in  the  United  States  sen- 
ate. He  participated  freely  in  discussion;  and 
when  ii  was  known  that  he  would  speak,  the 
senate  chamber  was  filled  by  members  of  the 
lower  house,  foreign  ministers  being  among 
his  auditors,  and  the  galleries  crowded.  Among 
the  subjects  upon  which  he  addressed  the 
senate  were  the  expulsion  of  Senators  Bright 
and  Johnson ;  emancipation ;  slavery  in  the 
District  of  Columbia ;  the  establishment  of  a 
steam  line  to  China  and  Japan;  the  Civil 
Rights  Bill;  the  Freedmen's  Bureau;  the  con- 
tinental telegraph  line;  the  National  academy; 
the  reconstruction  measures;  and  the  sale  of 
liquors  in  the  National  Capitol  Building.  His 
speech  on  the  latter  subject  being  very  brief, 
is  appended  to  this  sketch  in  full  as  a  speci- 
men of  his  humorous  style.  Perhaps  the  most 
polished  effort  of  General  McDougall's  life 
was  his  speech  in  the  senate  on  the  death 
of  his  friend  Baker,  December  ir,  1861.  In 
this  tender  tribute  he  richly  displayed  his 
great  learning,  his  rare  powers  of  speech,  and 
his  stores  of  classic  wealth.  We  must  make 
room  for  a  couple  of  extracts : 

"He  was  too  full  of  stirring  life  to  labor 
among  the  moialy  records  of  dead  ages;  and 
had  he  not  been,  the  wilderness  of  the  west 
furnished  no  field  for  the  exercise  of  mere 
scholarly  accomplishments.  I  say  the  late 
Senator  was  learned.  He  was  skilled  in  meta- 
physics, loeic  and  law.  He  might  be  called 
a  master  of  history,  and  all  the  literature  of 
our  language.  He  knew  much  of  music— not 
only  music  as  it  gives  pleasure  to  the  ear, 
but  music  in  the  sense  in  which  it  was  under- 
stood by  the  old  seekers  after  wisdom,  who 
held  that  in  harmonious  sounds  rested  some 
of  the  great  secrets  of  the  infinite.  Poetry 
he  inhaled  and  expressed.  The  aftlalus  called 
divine  breathed  about  him.  Many  years  since 
on  the  wild  plains  of  the  west,  in'the  middle 
of  a  starlit  night,  as  wc  journeyed  together, 
I  heard  first  from  him  the  chant  of  that  noble 
song,  'The  Battle  of  Ivry.' 

"He  was  an  orator— not  an  orator  trained 
to  the  model  of  the  Greek  or  Roman  school, 
but  one  far  better  suited  to  our  age  and  peo- 
ple. He  was  a  master  of  dialectics,  and  pos- 
sessed a  skill  and  power  in  words  which 
would  have  confounded  the  rhetoric  of  Gor- 
n'las.  and  demanded  of  the  great  mas'er  of 
dialectics  himself  the  use  of  ail  the  materials 
of  wordy  warfare.  He  was  dcepiv  versed  in 
all  that  belongs  to  the  relations  a'nd  conduct 
of  all  forms  of  societies,  from  families  to 
slates,  and  the  laws  wln'ch  govern  them.  He 
was  not  a  man  of  authorities,  simply  because 
he  used  authorities  only  as  the  rounds  whereby 
to  ascend  to  principles.  Having  learned  mucli. 
he  was  a  remarkable  master  of  all  he  knew.' 
whether  it  was  to  analyze,  generalize  or  com- 


470 


History  of  the  Bench  and  Bar  of  California. 


bine  his  vast  materials.  It  was  true  of  him,  as 
it  is  true  of  most  remarkable  minds,  that  he 
did'  not  always  appear  to  be  all  he  was.  The 
occasion  made  the  measure  of  the  exhibition 
of  his  strength.  When  the  occasion  chal- 
lenged the  effort,  he  could  discourse  as  cun- 
ningly as  the  sage  of  Ithaca,  and  as  wisely  as 
the   King  of   Pylus.     *     *     * 

"It  is  true  cities  and  kingdoms  die,  but  the 
eternal  thought  lives  on.  Great  thought,  in- 
corporate with  great  action,  does  not  die,  but 
lives  a  universal  life,  and  its  power  is  felt 
vibrating  through  all  spirit  and  throughout  all 
ages.  I  doubt  whether  or  not  we  should  mourn 
for  any  of  the  dead.  1  am  confident  that 
there  should  be  no  mourning  for  those  who 
render  themselves  up  as  sacrifices  on  any 
great,  or  holy  cause.  It  better  becomes  us  to 
praise  and  dignify  them.  It  was  the  faith  of 
an  ancient  people  that  the  souls  of  heroes  did 
not  rest  until  their  great  deeds  had  been 
hymned  by  bards  to  the  sound  of  martial  mu- 
sic. Bards  worthy  of  the  ancient  time  have 
hymned  the  praise  of  the  great  citizen  sen- 
ator and  soldier  who  has  left  us." 

During  his  senatorial  term  General  McDou- 
gaii  was  a  strong  advocate  of  war  measures, 
but  never  acteu  with  the  Republican  party. 
His  personal  influence  with  Lincoln  was  very 
great.  The  two  statesmen  had  been  warm 
friends  in  Illinois,  had  practiced  law  together, 
and  while  opposed  in  politics,  and  dissimilar 
in  some  cardinal  respects,  each  recognized 
and  paid  deference  to  the  other's  greatness. 

At  the  close  oi  his  senatorial  term  General 
McDougall  visited  his  native  county  of  Al- 
bany, intenamg  to  pass  a  few  months  in  rest 
and  retirement  before  returning  to  Califor- 
nia. There  he  died,  at  Albany,  September  30th, 
1867,  a  little  less  than  htty  years  of  age. 

Among  the  prominent  causes  which  engaged 
General  McDougall  in  San  Francisco  was  the 
case  ot  Cora,  who  Kuled  General  Richardson, 
United  States  marshal,  and  the  James  Baker 
divorce  case.  In  the  Cora  case  he  was  asso- 
ciated with  General  Baker.  He  and  Baker 
frequently  tried  cases  together.  It  was  inter- 
esting to  see  how  they  would  draw  toward 
each  other  in  a  great  case.  Each  seemed  to 
add  to  the  other's  strength  and  appreciated 
the  other's  talents.  McDougall  would  always 
open  and  Baker  close  the  argument. 

The  Baker  divorce  case,  one  of  the  most 
interesting  in  all  of  the  reports,  may  be  found 
in  the  13th  Cal.,  page  87.  The  husband  was 
the  plaintiff.  At  the  end  of  four  months  after 
the  marriage  his  wife  gave  birth  to  a  fully 
developed  child.  He  returned  her  to  her  rela- 
tives and  sued  for  a  divorce  on  the  ground  of 
fraud.  McDougall  was  his  counsel.  He  failed 
in   the   District   Court,   but   appealed,   and   the 


Supreme  Court  directed  the  court  below  to 
decree  a  divorce.  Judge  Field,  in  an  elaborate 
opinion,  Judge  Baldwin  concurring,  declared 
that  the  defendant  had  been  guilty  of  fraud, 
which  went  to  the  substance  of  the  marriage 
contract,  and  vitiated  it  from  the  beginning. 

General  McDougall's  briefs  were  models  in 
style  and  arrangement,  and  revealed  the  thor- 
oughly trained  and  broadly  informed  law- 
yer. He  was  subtle,  logical  and  profound,  and 
looked  upon  a  subject  from  every  standpoint 
possible.  In  speaking  he  challenged  atten- 
tion, not  by  voice  or  gesture  or  by  any  arts 
of  oratory,  but  by  his  thoughtful,  vigorous  and 
polished  sentences;  while  "his  look  drew  au- 
dience and  attention  still  as  night."  He  was 
very  lucid  in  expression,  of  pleasing  address, 
and  would  sometimes  speak  for  hours  to  the 
uninterrupted  delight  of  court  or  jury.  He 
was  pre-eminently  a  thoughtful,  studious  man. 
He  was  open  and  frank  in  manner,  full  of 
fun,  yet  very  dignified.  No  man  had  more 
pride  of  character  or  more  pride  in  his  pro- 
fession. 

It  must  be  stated  that  his  death  at  a  com- 
paratively early  age  was  hastened  by  indul- 
gence in  the  bowl — a  vice  which  closed  the 
lives  of  many  brilliant  men.  He  maintained  his 
dignitj'  of  manner  even  in  his  revels,  and  in 
conversation  at  all  times  was  one  of  the  most 
engaging  of  men.  His  extensive  learning 
was  continually  conspicuous,  and  statesmen 
and  diplomats  bowed  to  his  imperial  intel- 
lect. 

The  General  was  of  Scotch  extraction,  and 
his  wife  and  a  son  and  daughter  survive 
liim. 

The  Senator's  excesses  in  Washington  fur- 
nished some  first-class  sensations.  He  prided 
himself  on  his  "westernisms,"  in  dress  and 
manner.  He  was  sometimes  seen  on  the  street 
at  night  wearing  a  Scotch  cap.  Once  he  rode 
a  mustans:  at  a  breakneck  speed  along  a  lead- 
ing thoroughfare,  wearing  spurs,  a  Mexican 
sombrero,  and  armed  like  a  vaquero  of  the 
plains.  He  entered  the  senate,  it  is  said, 
once  with  his  sours  on.  On  one  occasion,  it 
is  also  told  of  him,  he  rambled  off  to  a  little 
village,  and  suddenly  concluding  to  take  a 
certain  train  at  a  depot  a  few  miles  distant, 
he  endeavored  to  secure  a  carriage,  but  none 
being  available,  he  hired  a  hearse,  and  lying 
down  inside,  had  it  driven  to  the  depot.  Be- 
fore it  was  reached,  the  driver  stopped  at  a 
wayside  place  to  indulge  in  the  General's  fa- 
vorite beverage.     As  the  driver  was  about  to 


History  of  tJic  Bench  and  Bar  of  California. 


471 


movint  his  seat  again,  the  General,  who  in- 
tuitively took  in  the  whole  situation,  ex- 
claimed :  "The  corpse  is  dry,  too ;  bring  some 
whisky  this   way." 

We  will  conclude  this  notice  with  the  re- 
marks of  General  McDougall  on  the  resolu- 
tion to  prohibit  the  sale  of  spirituous  liquors 
at  the  National  Capitol  Building,  delivered  in 
the  United  States   Senate,  April   ii,   1866: 

"Mr.  President :  It  was  once  said  that  there 
were  as  many  minds  as  men,  and  there  is  no 
end  of  wrangling.  I  had  occasion  some  years 
since  to  discourse  with  a  reverend  doctor  of 
divinity  from  the  state  which  has  the  honor 
to  be  the  birthplace,  I  think,  of  the  present 
President  of  this  body.  While  I  was  discours- 
ing with  him  a  lot  of  vile  rapscallions  invited 
me  to  join  them  at  the  bar.  I  declined  out  of 
respect  to  the  reverend  gentleman  in  whose 
presence  I  was.  As  soon  as  the  occasion  had 
passed  I  remarked  to  the  reverend  doctor, 
'Do  not  understand  that  I  declined  to  go  and 
join  those  young  men  at  the  bar  because  I 
have  objection  to  that  thing,  for  it  is  my  habit 
to  drink  always  in  the  front  and  not  behind 
the  door.'  He  looked  at  me  with  a  certain  de- 
gree of  interrogation.  I  then  asked  him,  'Doc- 
tor, what  was  the  first  miracle  worked  by 
our  great  master?'  He  hesitated,  and  I  said 
to  him,  'Was  it  not  at  Cana  in  Galilee,  when 
he  converted  the  water  into  wine  at  a  mar- 
riage feast?'  He  assented.  I  asked  him,  then, 
'After  the  ark  had  floated  on  the  tempestous 
seas  for  forty  days  and  forty  nights,  and  as 
it  descended  upon  dry  lands,  what  was  the 
first  thing  done  by  Father  Noah  ?'  He  did  not 
know  that  exactly.  'Well,'  said  I,  'did  he  not 
plant  a  vine?'  Yes,  he  remembered  it  then. 

"I  asked  him,  'Do  you  remember  any  great 
poet  that  ever  illustrated  the  higher  fields  of 
humanity  that  did  not  dignify  the  use  of  wine, 
from  old  Homer  down?'  He  did  not.  I  asked 
hiin,  'Do  you  know  any  great  philosopher  that 
did  not  tise  it  for  the  exaltation  of  his  intelli- 
gence? Do  yon  think,  doctor,  that  a  man  who 
lived  upon  pork  and  beans  and  corn  bread 
could  ever  get  up  into  the  superior  regions 
— into  the  ethereal  ?'   No ;  he  must 

"  'Take  nectar  on  high  Olympus, 
And    mighty    mead    at    Valhalla.' 

"I  said  to  him  again :  'Doctor,  you  arc  a 
scholarly  man,  of  course,  a  doctor  of  divinity, 
a  graduate  of  Yale?  Do  you  remember  Pla- 
to's Symposium?'  Yes,  he  remembered  that.  I 
referred  him  to  the  occasion  when  Agatho, 
having  won  the  prize  of  tragedy  at  the  Olym- 
pic games  at  Lorinlh,  on  coming  back  to  Ath- 
ens, was  feted  by  the  nobility  and  aristocracy 
of  that  citv:  for  it  was  a  proud  triumph  to 
Athens  to  win  the  prize  of  tragedy.  They 
got  together  at  the  house  of  Phaedras,  and  they 
said :  'Now,  we  have  been  every  night,  for 
the  last  six  nights,  drunk;  let  us  be  sober 
tonight,  and  we  will  start  a  theme ;'  which 
they  passed  around  the  table,  as  the  sun  goes 
round,  or  as  thev  drank  their  wine,  or  as  men 


tell  a  story.  They  started  a  theme,  and  the 
theme  was  love — not  love  in  the  vulgar  sense, 
but  in  its  high  sense— love  of  all  that  is  beau- 
tiful. After  they  had  gone  through,  and  after 
Socrates  had  pronounced  his  judgment  about 
the  true  and  beautiful,  in  came  Alcibiades  with 
a  drunken  body  of  Athenian  boys,  with  gar- 
lands around  their  heads,  to  crown  Agathd, 
and  to  crown  old  Socrates;  and  they  said  to 
those  assembled,  'This  will  not  do;  we  have 
been  drinking,  you  have  not.'  And  after  Alci- 
biades had  made  his  talk  in  pursuance  of  the 
argument,  in  which  he  undertook  to  dignify 
Socrates,  as  I  remember  it,  they  required  (after 
the  party  had  agreed  to  drink,  it  being  quite 
late  in  the  evening,  and  they  had  finished  their 
business  in  way  of  discussions)  that  Socrates 
should  ■  drink  two  measures  for  every  other 
man's  one,  because  he  was  better  able  to  stand 
it.  And  so  one  after  another  they  were  laid 
down  on  the  lounges  in  the  Athenian  style, 
all  except  an  old  physician  named  Aristode- 
mus,  and  Plato  makes  him  the  hardest-headed 
fellow  except  Socrates.  He  and  Socrates 
stuck  at  it  until  the  gray  of  morning,  and  then 
Socrates  took  his  bath  and  went  down  to  the 
groves  and  talked  academic  knowledge. 

"After  citing  this  incident,  I  said  to  this  di- 
vine, 'Do  you  remember  that  Lord  Bacon  said 
that  a  man  should  get  drunk  at  least  once  a 
month,  and  that  Montaigne,  the  French  phil- 
osopher, indorsed  the  proposition?'  I  said  to 
him  further,  'These  exaltants  that  bring  us  up 
above  the  common  measure  of  the  brute — wine 
and  oil — elevate  us,  enable  us  to  seize  great 
facts,  inspirations,  which,  once  possessed,  are 
ours  forever.  And  those  who  never  go  beyond 
the  mere  beastly  means  of  animal  support 
never  live  in  the  high  planes  of  life,  and  can- 
not achieve  them.  I  believe  in  zvomen,  wine, 
zv/iisky  and  zvar.' 

"The  reverend  doctor  replied,  'Well,  Gen- 
eral, you  are  right;  but  I  cannot  afford  to 
say  it.' 

"I  do  not  know  but  that  it  would  be  well 
for  the  sober  senator  from  California  to  in- 
dulge himself  somewhat  more  in  generous 
wine  ■  and  I  do  not  know  but  that  it  would  be 
of  service  to  the  senator  from  New  Hamp- 
shire, and  I  am  sure  it  would  have  a  kindly 
influence  upon  the  senator  from  Massachu- 
setts. I  think  all  these  pro])ositions,  all  these 
regulations,  all  this  style  of  determining  lib- 
erties that  ought  to  be  common  to  all  men  by 
virtue  of  isomctrical  influence,  is  wrong,  and 
I  lUterly  protest  against  it.  I  think  it  was 
well  when  we  had  our  lunchroom  in  the  senate 
chamber,  where  we  ouictly  sat  down  and  drank 
our  wine  at  our  pleasure.  The  times  have 
come  to  be  so  false  that  men  dare  not  say 
what  they  honestly  think  to  be  the  truth  and 
the  right.  That  sin  of  cowardice  shall  never 
come  to  my  door.  I  say  the  whole  proposition 
is  wrong.  Let  the  senator  from  Massachu- 
setts, if  he  chooses,  drink  his  wine  as  his  fore- 
fathers did  before  they  cut  down  all  the  apple 
trees  in  the  state.  Because  apple  trees  raised 
apples,  and  apples  made  cider,  and  cider  made 
brandy,  they  cut  them  down  all  through  New 
Fngland  ;   but   in  his  grandfather's  time  every 


472 


History  of  the  Bench  and  Bar  of  California. 


gentleman  of  Massachusetts,  or  every  man  who 
was  able  to  afford  it,  had  on  his  sideboard 
a  bottle  of  good  apple  brandy,  and  he  offered 
it  to  his  guests  the  moment  he  received  them. 
"Those  were  the  good  old  times  when  gen- 
tlemen were  abounding  in  the  land.  This  kind 
of  regulation  tends  to  degrade  the  dignity  of 
the  senate." 


OGDEN  HOFFMAN. 

Judge  Hoffman's  ancestors  came  from  Hol- 
land, and  were  among  the  earliest  settlers  of 
New  Amsterdam.  His  father,  Ogden  Hoffman, 
a  native  of  New  York,  was  long  a  leader  of 
the  American  bar,  and  of  the  Whig  party. 
He  opposed  the  Mexican  war.  In  debate  he 
was  brilliant,  in  argument  clear  and  strong, 
in  style  ornate,  a  master  of  the  art  of  expres- 
sion. He  frequently  made  political  speeches, 
and  his  fame  as  an  orator  was  national.  Ed- 
wards, in  his  "Pleasantries,"  applies  to  his  ora- 
tory the  words  used  by  Charles  Butler  in 
speaking  of  the   style   of   Sir   William   Grant : 

"The  charm  of  it  was  indescribable ;  its  ef- 
fect on  the  hearer  was  that  which  Milton 
describes  when  he  paints  Adam  listening  to 
the  angel  after  the  angel  had  ceased  to  speak. 

"The  angel  ended,  and  in  Adam's  ear 
So  charming  left  his  voice,  that  he  awhile 
Thought   him    still    speaking,    still    stood    fix'd 
to  hear." 

This  (the  elder)  Ogden  Hoffman  was  the 
exponent  of  the  New  York  bar  when  it  was 
called  upon  to  manifest  its  respect  for  the 
memory  of  the  venerable  Chancellor  Kent,  in 
January,  1848.  At  his  own  death,  in  May, 
1853,  a  crowded  meeting  of  the  bar  was  held, 
at  which  William  M.  Evarts  and  other  able 
men  spoke  of  his  forensic  triumphs  and  his 
greatness  of  mind. 

The  transmission  of  lirain  force  from  father 
to  son,  through  several  generations,  marks 
this  line  of  Hoffmans  as  one  of  the  compara- 
tively few  families  which  have  been  so  dis- 
tinguished. The  other  names  which  make  up 
the  roll  of  American  hereditary  genius  are  Ad- 
ams, Bayard.  Beecher,  Binney.  Breckinridge, 
Dana,  Jay,  Kent,  Hayne,  Holmes,  Randolph 
(not  the  Roanoake  man).  Story,  Sedgwick, 
Sullivan,  Van  Burcn,  and  a  few  more. 

The  Hoffman  line  ended  with  the  second 
Ogden  Hoffman,  the  great  California  judge, 
who  died  wifeless  and  childless. 

The  later  was  born  in  New  York  City,  Oc- 
tober 16,  1822.  Graduating  from  Columbia 
College  at  the  age  of  nineteen,  he  commenced 
the  study  of  law  at  Dane  Law  School,  Har- 


vard, under  Judge  Story  and  Simon  Green- 
leaf. 

After  being  admitted  to  practice,  and  before 
commencing  business,  he  traveled  in  Europe, 
spending  most  of  his  time  in  Paris,  where  he 
acquired  a  good  knowledge  of  the  French 
tongue.  He  also  learned  something  of  other 
modern  languages,  and  was  already  accomp- 
lished in  Greek  and  Latin.  After  nearly  two 
years'  absence  he  returned  and  commenced 
law  practice  in  New  York  City.  Like  Hall 
McAllister,  he  did  not  feel  the  spur  of  want, 
and  like  him,  he  had  the  timely  counsel  and 
encouragement  of  a  father  who  had  achieved 
success  in  the  profession  of  his  choice,  and 
who  had  worked  out  for  him  the  heritage 
of  a  distinguished  name.  After  a  brief  period 
in  New  York  he  removed  to  San  Francisco, 
arriving  May  16,  1850,  and  entered  on  the 
practice.  He  had  not  obtained  much  business 
nor  had  time  to  do  so,  when  he  was  appointed 
to  the  bench.  It  will  never  be  known  what 
figure  he  would  have  made  at  the  bar.  He 
evidently  would  have  been  true  to  his  father's 
fame  in  facility  of  expression,  logical  state- 
ment, keenness  of  perception  and  knowledge 
of  the  law ;  but  as  an  orator  and  advocate,  it 
is  probable  tnat  he  would  have  been  wanting. 
He  had  not  been  here  a  year  when — in  March, 
1861 — President  Fillmore  appointed  him  Judge 
of  the  United  States  District  Court  for  the 
northern  district  of  California. 

In  facility  of  diction,  the  art  of  expression. 
Judge  Hoffman  had  no  peer  in  this  State.  If 
a  trial  suddenly  culminated  and  the  result  was 
apparent,  Judge  Hoffman  was  never  taken 
by  surprise".  He  expressed  his  views  promptly, 
fully,  and  with  all  the  elegance  of  speech  which 
the  most  patient  reflection  could  give.  His 
reported  opinions  are  models  of  style  as  well 
as  rich  food  for  the  student  of  law. 

Upon  this  suliject  of  readiness  and  apt- 
ness and  fullness  of  speech.  Judge  Hoffman 
held  radical  views.  He  said  it  was  not  a 
gift,  but  comes  by  education.  His  extraor- 
dinary command  of  language  has  often  been 
the  theme  of  comment  among  the  lawyers.  Of 
course,  in  this  nimble-witted  age,  he  could  not 
hope  to  escape  facetious  criticism.  J.  Ross 
Browne  made  him  the  hero  of  his  wittiest 
emanations.  In  a  social  company  once  the 
Judge  was  complimented  upon  his  faculty  of 
speech,  and  this  led  to  a  general  discussion  of 
the  subject  of  verbal  expression,  in  which 
the  Judge  took  an  earnest  part.  A  member 
of  the  party  was  Hon.  W.  W.  Morrow,  who 
was    assistant    prosecuting    attorney    in   Judge 


n 


History  of  tJic  Bench  and  Bar  of  California. 


473 


Hoffman's  court,  and  who  succeeded  to  that 
bench.  On  the  occasion  referred  to  he  took 
the  ground  that  if  a  man  understands  an  ob- 
ject— knows  it — he  cannot  fail  to  describe  it. 
Issue  was  taken  with  him  at  once.  He  pro- 
ceeded to  ihustrate  : 

'"Describe  a  circle,"  he  said  to  Judge  Mor- 
row. Judge  Morrow  described  a  circle — the 
best  he  could — he  was  only  a  little  off,  but 
he  made  a  mistake.  "I  see  you  don't  know 
what  a  circle  is,"  said  Judge  Hoffman.  "It 
you  did,  you  could  describe  it."  Judge  Mor- 
row protested  that  the  illustration  was  un- 
fair. "I  know  a  circle  when  I  see  it,"  he  said. 
"I  can  distinguish  it  from  a  square  or  a  tri- 
angle, but  I  cannot  perfectly  define  it."  But 
the  Judj^e  insisted  that  Mr.  Morrow  did  not 
know  what  a  circle  was. 

Among  the  important  causes  which  engaged 
Judge  Hoffman's  attention  was  the  contest 
over  the  New  Almaden  quicksilver  mine,  near 
San  Jose,  referred  to  in  the  chapter  on  Ran- 
dolph. This  mine  enriched  a  score  of  men, 
and  its  development  has  given  employment 
to  a  little  army  of  laborers  for  near  half  a 
century.  The  history  of  the  trial  of  this  great 
cause  has  been  printed  in  five  octavo  vol- 
umes, comprising  thirty-six  hundred  pages. 
One  hundred  and  fifty-three  pages  of  the  fourth 
volume  arc  taken  up  by  Judge  Hoffman's  opin- 
ion. 

In  Judge  Hoffman's  judicial  retrospect  the 
Limantour  case  is  the  most  prominent  to  the 
eye.  This  was,  perhaps,  the  most  extraor- 
dinary civil  trial  that  ever  occurred  in  this 
State.  Limantour,  a  Frenchman,  who  had 
lived  many  years  in  Mexico,  claimed  15,000 
acres  of  land,  covering  nearly  all  the  city  of 
San  Francisco,  also  the  islands  of  the  bay, 
and  large  tracts  of  land  in  the  interior,  one 
of  which  included  the  city  of  Stockton.  His 
claims  to  the  city  and  the  islands  were  actually 
confirmed  by  the  Land  commission,  and  they 
were  taken  before  Judge  Hoffman,  on  ap- 
peal. The  bases  of  the  claims  were  two  al- 
leged grants  from  Governor  Micheltorena, 
dated  in  1843.  These  were  finally  shown  to  be 
forgeries.  Judge  Hoffman's  opinion,  cover- 
ing sixty-one  pages,  is  a  history  of  this  noted 
case,  and  as  such  will  always  be  invested  with 
deep  interest  for  our  citizens. 

In  1862  Numa  Hubert  issued  a  volume  of 
Judge  Hoffman's  opinions  in  land  cases,  as 
originally  prepared  and  delivered.  His  later 
opinions  are  contained  with  lliose  of  Judges 
Field,  Dead'-  and  Sawyer,  in  L.  S.  B.  Saw- 
yer's reports. 


A  lawyer  rushed  into  the  Judge's  court  one 
day,  in  a  high  state  of  excitement  about  a 
ship  tiiat  had  been  libeled  and  was  in  the  cus- 
tody of  the  marshal,  for  some  alleged  viola- 
tion of  the  federal  revenue  laws.  He  was 
anxious  to  have  her  released.  He  complained 
loudly  of  the  action  of  the  authorities,  which 
he  declared  would  cause  serious  inconvenience 
and  damage,  and  said  that  the  case  was  all 
the  worse  because  the  ship  was  leaking  and 
half  filled  with  water.  He  asked  the  Judge 
what  ought  to  be  done  under  the  circum- 
stances. The  dry  reply  was:  "If  I  were  in 
your  place  I  would  bail  her  out." 

Judge  iioffman  had  few  familiars,  but  many 
friends.  As  a  Judge  he  was  a  favorite  with 
leading  lawvers.  His  manner  was  quiet  and 
grave.  He  treated  all  alike.  His  mind  was 
active,  his  annrehension  quick,  and  his  knowl- 
edge of  law  deep  and  thorough.  He  caught 
an  idea  promptly,  comprehended  a  proposi- 
tion at  once,  even  if  it  were  complicated  and 
involved.  When  a  lawyer  read  to  him  he  was 
not  required  to  "pass  up  that  book,"  that  it 
might  be  further  consulted.  He  pursued  the 
line  of  duty  unfalteringly  throughout  his  long 
career,  and  the  closest  scrutiny  shows  not  a 
stain  upon  his  robes.  Very  seldom  did  he 
participate  in  public  demonstrations,  popular 
movements  or  literary  entertainments.  He  let 
politics  alone.  The  son  of  an  eminent  Whig 
leader,  he  was  taught  to  reverence  Henry  Clay, 
and  we  believe  the  only  public  address  he  ever 
delivered  was  his  oration  upon  the  career  of 
the  great  statesman,  when  it  ended  in  1852. 
This  was  a  thoughtful  and  polished  effort, 
which  is  preserved  in  the  local  newspapers  of 
August  of  that  vear. 

In  a  quiet  way  this  veteran  of  the  bench 
extracted  a  good  deal  of  pleasure  from  life.  A 
bachelor,  he  passed  much  of  his  time  at  his 
club,  where  his  delightful  conversation  was 
fully  appreciated.  He  always  enjoyed  good 
health,  until  he  ncared  the  final  scene.  His 
step  was  still  light,  his  movements  alert,  and 
his  erect  figure  was  seen  daily  on  the  street. 

He  died  at  San  Francisco,  in  August,  1891. 
He  had  been  sick  for  several  months,  and  his 
mind  broke  down  some  weeks  before  his  death. 


MlLTOxN  S.  LATH  AIM. 

A  Governor  of  California  for  Five  Days 
Only!  It  was  not  Death  that  wrested  from 
him  the  executive  scepter,  but  auspicious  For- 
tune gave  him  a  higher  trust.  With  the  quick- 
step  of   manly   ambition,    he   passed    from   the 


474 


History  of  the  Bench  and  Bar  of  California. 


chair  of  state  to  the  federal  senate— for  Fame 
had  claimed  liim  as  her  favorite. 

"O,  who  can  tell  how  hard  it  is  to  climb 
The  steep  where  Fame's  proud  temple  shines 
afar !" 

Latham  mounted  the  height,  as  if  aided  by 
unseen  wings,  and  friend  and  foe  alike  ap- 
plauded as  rapidly  and  without  apparent  ef- 
fort he  rose  higher  and  higher. 

Milton  S.  Latham  was  born  in  Ohio,  May 
23,  1827,  scion  of  stout  old  American  stock. 
His  father,  a  Virginian,  was  a  man  of  letters 
and  high  social  standing.  The  son  was  grad- 
uated from  Jefferson  College  Pennsylvania 
(Col.  J.  P.  Hoge's  Alma  Mater)  in  1846,  and 
removed  to  Alabama,  where,  in  1848,  he  be- 
came clerk  of  t.ie  Circuit  Court  of  Russell 
countv.  He  was  there  admitted  to  the  bar, 
and  made  the  acquaintance  of  Solomon  Hey- 
denfeldt.  He  came  to  California  in  April, 
1850,  and  after  a  short  stay  in  San  Francisco, 
where  he  was  clerk  of  the  Police  Court,  he 
commenced  law  practice  in  Sacramento.  In 
that  year  he  was  elected  district  attorney,  and 
we  had  occasion  to  thus  refer  to  his  part  in 
that  political  canvass,  in  a  notice  of  him  at  his 
death : 

"When  Latham  reached  Placerville  on  his 
stumping  tour,  among  his  auditors  was  Mrs. 
Robertson,  wife  of  a  prominent  politician, 
whom  she  survived,  a  cultured  lady,  who,  after 
her  husband's  death,  owned  and  cultivated 
the  finest  peach  orchard  in  the  State.  Mrs. 
Robertson  was  impressed  with  the  speaker's 
youth,  his  amiable  manner  and  persuasive 
speech,  and  said  to  a  friend,  before  Latham 
had  nearly  concluded :  'His  youthful  face  will 
always  carry  him  through.  People  will  feel 
like  giving  him  a  lift  instead  of  pulling  him 
down.' 

"Not  so  flattering  was  the  observation  of 
one  of  Latham's  auditors,  when,  the  next 
night,  the  rustic  wisdom  of  another  camp 
assembled  to  hear  the  young  orator.  Ainid 
the  smooth  and  steady  flow  of  Latham's  pe- 
riods, a  tall  Whig  giant,  in  hickory  shirt  and 
flop  hat,  elbowed  his  way  to  the  front,  and, 
after  surveying  the  speaker  a  moment,  with 
open  mouth  and  the  most  comical  counte- 
nance, suddenly  drawled  out,  'Gas.' 

'"it  cut  me  off  below  the  knees,"  said  La- 
tham, in  sneaking  of  the   interruption." 

On  July  I,  1851,  he  resigned  this  office  to 
stump  the  State  as  a  candidate  for  the  lower 
house  of  congress,  and  Thomas  Sunderland, 
his  law  partner  succeeded  him  as  district  at- 
torney. He  drew  large  audiences  in  that  cam- 
paign. His  voice  was  soft,  his  style  chaste, 
a  little  florid,  deliberate,  persuasive,  and  al- 
most womanly  in  grace.    His  election  resulted. 


and  the  death  of  Vice-President-elect  King, 
to  whom  Latham  had  become  attached  in  Ala- 
bama, supplied  a  melancholy  theme  for  the 
young  member's  maiden  address  in  congress. 

He  was  re-elected  to  the  house,  and  in  1856 
was  appointed  by  President  Pierce  collector 
of  customs  at  San  Francisco,  and  served  as 
such  until  the  summer  of  '57,  passing  from 
that  office  at  the  age  of  30. 

On  March  15,  1858,  Latham,  who  was  an 
even-tempered  man,  while  trying  a  murder 
case  before  Judge  Hager  at  San  Francisco, 
became  so  incensed  at  a  ruling  made  by  the 
court,  that  he  abruptly  abandoned  the  case. 
He,  however,  returned  to  the  trial  on  the  same 
day. 

Latham  was  elected  Governor  of  Califor- 
nia in  the  fall  of  1859,  as  the  regular  adminis- 
tration Democratic  candidate.  His  competitors 
were  Leland  Stanford,  Republican,  and  John 
Currey,  Douglas  Democrat.  In  round  figures, 
the  popular  vote  was:  Latham,  60,000;  Currey, 
30,000;  Stanford,  10,000.  (All  three  of  these 
men  were  pets  of  fortune,  but  all  three  couldn't 
have  the  same  office  at  the  same  time,  Currey 
indeed  never  won  it,  but  became  chief  jus- 
tice.) 

As  an  illustration  of  Latham's  magnetic, 
winnine  way,  Jerry  Dayton  told  us  nearly  forty 
years  ago,  in  Virginia  City,  Nevada,  that 
while  the  hot  contention  for  the  gubernatorial 
nomination  was  going  on  in  the  summer  of 
'59,  Latham  tapped  him  on  the  shoulder  in 
Sacramento  and  said  with  bland  smile  and 
soft  tones,  "I  want  you  to  help  me  all  you 
can,  Jerry."  Jerry  promised,  although  he  had 
just  been  the  Know  Nothing  county  clerk, 
and  was  rapidly  drifting  to  the  new  Repub- 
lican haven.  Latham  did  not  complain  of  any- 
body and  betrayed  no  suspicion  of  anybody. 
The  man  he  defeated  for  the  Democratic  nom- 
ination was  the  then  Governor  of  the  State, 
backed  by  great  patronage  and  powerful  pres- 
tige— John  B.  Weller.  The  convention  was 
a  large  body,  representative,  enthusiastic,  tu- 
multuous. The  Latham  candidate  for  tem- 
porary chairman  was  chosen  by  a  few  votes 
over  the  Weller  exponent.  The  latter,  an- elo- 
quent senator,  had  a  ringing  partisan  speech 
ready,  but  fate  for  that  moment  sealed  his 
mouth.  He  delivered  it,  however,  later  in 
the  proceedings,  after  the  ticket  was  com- 
plete and  the  love-feast  was  spread.  Hear  him 
now — (alluding  to  Seward,  John  Brown  and 
the  formidable  front  of  the  new  political  foe)  : 
"Our  enemies  are  marshaling  by  black  batal- 
lions  around  their  Satanic  leader,  whose  brutal 


History  of  the  Bench  and  Bar  of  California. 


475 


theory  of  an  irrepressible  conflict  has  already 
been  consummated  in  treason  and  murder." 
And  so  he  went  on  in  swelling  periods.  (This 
was  Kirkpatrick  of  Sierra.) 

It  was  an  exciting  scene  when  Latham  was 
nominated  by  the  great  convention.  It  looms 
upon  memory's  canvas  now.  The  result  of  the 
ballot  having  been  declared  by  the  chairman, 
a  delegate  away  down  on  the  right  near  the 
door  called  for  three  cheers  for  the  nominee. 
Another  on  the  left  and  near  the  platform, 
in  louder  tones,  repeated :  "Three  cheers  for 
the  nominee  !"  The  chairman  echoed  the  elec- 
tric words  and  waved  command  to  the  stand- 
ing host — and  three  cheers  were  given,  and  no 
mistake. 

At  this  climax  the  hero  of  the  hour  was  seen 
pressing  his  way  up  the  left  aisle.  He  was 
in  the  city  of  his  home,  and  the  house  of  his 
friends.  The  nomination  just  made  was  equiv- 
alent to  an  election,  and  he  was  to  be  Gov- 
ernor of  California  at  the  age  of  thirty-two. 
The  handsome  person,  the  gentle  eyes,  the 
modest  but  manly  bearing,  the  neat  attire, 
mated  to  the  blond  features,  the  soft  felt  hat  in 
hand,  the  flushed  countenance  bespeaking  melt- 
ing emotion,  the  extended  arms  which  checked 
his  progress,  and  the  long  thunder-roll  and 
earthquake  of  acclaim — make  up  a  picture 
rarely  paralleled  in  political  bodies.  Involun- 
tarily we  looked  around  for  Ferguson  and 
Hawks !  They  were  not  there.  They  had  passed 
away.  If  yet  on  earth  the}'  had  been  (like  Ba- 
ker, not  yet  fallen)  leaders  in  other  camps,  but 
how  generously  would  they  have  given  their 
personal  plaudits  to  their  old  political  friend! 
How  high  they,  too,  had  aimed  magnetic  ar- 
rows !  Spirits  aflame,  quenched  all  too  soon ! 
Burning  for  human  glory,  electric  in  speech 
and  action,  great  captains  in  the  battle  of  party, 
all-conquering  in  debate !  But  were  ye  not 
looking  on?  Or  were  ye  with  immortal  "Ru- 
perts of  debate."  at  intellectual  war? 

Latham  became  Governor.  His  record  as 
such  is  compassed,  as  before  stated,  in  five 
days.  His  inauguration  occurred  on  the  gth 
day  of  January,  i860,  the  oath  being  admin- 
istered by  Hon.  Stephen  J.  Field,  then  chief 
justice  of  the  Slate  Supreme  Court.  His  ad- 
dress on  the  occasion  occupied  a  half  hour  in 
delivery.  He  declared  that  it  was  only  in 
deference  to  examples  of  revered  authority 
tliat  he  foreshadowed  his  line  of  policy.  He 
thought  it  were  better  to  point  backward  at 
the  end  than  forward  at  the  beginning.  The 
State  debt  then  amounted  to  $3,885,000.  While 
this  was  small  in  proportion  to  our  resources. 


it  was  not  justified,  there  being  no  public 
building,  and  but  one  charitable  institution,  the 
Stockton  Asylum.  The  receipts  of  government 
should  always  equal,  and,  if  possible,  exceed 
its  expenditures.  This  rule  should  be  stern 
and  inflexible.  He  urged  the  prompt  com- 
mencement of  a  State  Capitol  building,  in  ac- 
cordance with  plans  that  should  not  be 
changed.  The  lessee  system  of  governing  the 
State  prison  was,  in  his  opinion,  destructive 
of  the  very  object  of  incarceration — punish- 
ment and  reform — and  was  inhuman.  He 
thought  there  was  little  reason  for  executive 
clemency,  and  declared  that  he  would  not  re- 
spond to  recommendations  for  pardon  signed 
even  by  judges  and  juries  and  accompanied 
by  tearful  prayers  of  heart-broken  relatives, 
unless  he  was  satisfied  that  the  court  and  jury 
would  have  done  differently  on  the  state  of 
facts  shown  to  him.  This  would  be  his  course 
because  experience  showed  that  those  com- 
munities were  freest  from  crime  where  crime 
was  most  certainly  punished. 

The  Governor  in  his  inaugural  gave  great 
gratification  to  the  people  of  San  Francisco 
by  anticipating  the  Bulkhead  bill,  and  rais- 
ing a  note  of  warning  against  giving  the  con- 
trol of  the  city  front  to  a  monopoly.  He  also 
thought  the  city  should  not  do  the  work,  as 
it  might  be  opening  an  overflowing  fountain 
of  political  corruption  and  ultimate  bank- 
ruptcy. It  was  not  then  time  for  any  action, 
and  if  the  bulkhead  was  ever  built,  he  thought 
it   should  be   by  the   State. 

The  suggestions  of  this  inaugural  address 
have  generally  found  vindication  in  legisla- 
tive expression. 

He  found  time  in  his  short  incumbency  to 
send  to  President  Buchanan  probably  the  most 
elaborate  paper  that  ever  proceeded  to  the  gen- 
eral government  from  a  California  Governor. 
It  was  on  the  subject,  every  now  and  then 
agitated,  of  a  division  of  this  State.  The  leg- 
islature, at  the  last  preceding  session,  had 
passed  an  act  to  take  the  sense  of  the  people 
of  the  si.x  most  southern  counties  on  the 
question  of  separation,  and  consenting  to  such 
separation  if  those  counties  gave  a  two-thirds 
vi>(c  therefor.  Those  cu>itittics  so  voted,  and 
in  ci)mi)liance  with  law,  Governor  Latham  for- 
warded to  the  President  a  statement  of  the 
result.  He  accompanied  this  with  the  paper 
referred  to,  wherein  he  examined  the  ques- 
tion as  a  lawyer  and  as  a  student  of  the  Fed- 
eral Constitution.  .  He  said  he  had  no  doubt 
the  people  of  the  State  at  large  were  against 
division,  and  they  being  the  judges  the  mea- 


476 


History  of  ihc  Bciicli  and  Bar  of  California. 


sure  must  be  deemed  impolilic,  but  that  the 
legal  and  constitutional  aspect  of  the  measure 
was  of  the  first  importance. 

His  views  are  very  strikingly  presented. 
Can  a  state  be  remitted  to  a  territorial  con- 
dition? If  so,  the  legislature  and  congress 
can  dissolve  the  Union!  But  remitting  a  rea- 
sonable portion  of  a  state  to  a  territorial  con- 
dition is  a  very  different  thing;  in  time  a  new 
state  would  be  developed.  He  clearly  antici- 
pated by  some  years  the  case  of  Virginia, 
and  concluded  that  a  state  could  be  divided, 
and  a  new  state  formed,  and,  a§  the  greater 
include  the  less,  a  territory  could  be  formed 
out  of  a  part  of  a  state.  He  further  argued 
that  the  act  of  the  California  legislature  con- 
senting to  the  division  was  valid,  although 
never  submitted  to  a  vote  of  the  people,  and 
that  the  Federal  Constitution  (Article  4.  Sec- 
tion 3)  contains  all  the  requirements  for  a 
division  of  a  slate. 

Directly  after  the  close  of  the  extraordinary 
campaign  which  resulted  in  Latham's  elec- 
tion as  Governor,  David  C.  Broderick,  United 
States  senator  fell,  "tangled  in  the  meshes  of 
the  Code  of  Honor."  The  crestfallen  friends 
of  John  B.  Weller  (whom  Latham  had  de- 
feated in  convention)  looked  with  fresh  hope 
to  his  probable  return  to  the  United  States 
senate.  But  Latham  again  triumphed  over 
him,  and  took  Broderick's  seat  in  that  august 
body.  The  new  Governor,  two  days  after 
his  inauguration,  was  elected  in  joint  conven- 
tion of  the  legislature.  United  States  senator 
for  the  unexpired  term  of  three  j'ears.  The 
vote  stood,  Latham,  07  ■  Edmund  Randolph 
(Douglas  Democrat),  14;  Oscar  L.  Shafter 
(Republican),  3.  The  Governor  resigned  three 
days  later  and  proceeded  to  Washington. 

Right  after  the  completion  of  his  term  as 
senator,  Latham  went  to  London  and  enlisted 
capital  in  the  establishment  of  a  new  bank 
in  San  Francisco.  Of  this,  the  London  and 
San  Francisco  Bank,  he  was  the  president 
from  its  foundation  in  1864  until  1879.  He 
then  went  into  railroad  enterprises,  and  lost 
his  fortune.  He  died  in  New  York  City  on 
the  4th  of  March,  1882,  aged  55-  A  few  years 
before  his  death  a  sale  of  his  oil  paintings 
in  that  city  brought  $101,315- 

Latham  was  systematic  and  diligent  in  busi- 
ness. When  he  lived  in  Sacramento,  his  will 
was  made,  with  Judge  A.  C.  Monson  and  John 
B.  Harmon  as  executors.  All  his  affairs  were 
summed  up  on  two  pages  and  his  accounts 
were  straightened  and  books  balanced  daily. 
He  was  twice  married,  his   second  wife  sur- 


viving him  with  several  children.  The  mauso- 
leum of  his  first  wife,  and  the  exquisite  fe- 
male figure  in  white  marble,  forever  looking 
at  the  solemn  sea,  are  the  chief  objects  of 
mournful  beauty  in  Lone  Mountain  cemetery. 


LEVI   PARSONS. 


Levi  Parsons  died  in  New  York  on  the  23d 
of  October,  1887,  at  the  age  of  sixty-five  years. 
The  eastern  journals  credited  him  with  having 
been  "one  of  the  pioneer  judges  of  the  Su- 
preme Court  of  California."  The  fact  is.  Par- 
sons was  never  on  our  Supreme  bench,  nor 
did  his  ambition  look  that  way.  He  was  a 
lawyer,  but  attained  no  distinction  as  such. 
He  was  a  district  judge  under  the  old  system 
and  in  a  brief  tenure  of  the  office  attained 
distinction  of  an  interesting  and  peculiar  kind, 
lie  was  a  California  pioneer,  and  when  the 
first  legislature  in  joint  convention,  March 
30th,  1850,  elected  the  first  district  judges,  Par- 
sons, at  the  age  of  twenty-eight,  was  chosen 
for  the  fourth,  or  San  Francisco  district.  He 
received  twenty-six  votes  against  nineteen  cast 
for  Alexander  Campbell,  the  veteran  still  livmg 
at  Los  Angeles.  The  legislators  of  that  session 
who  have  since  won  celebrity  voted  for  Camp- 
bell, namely,  Broderick,  McKinstry,  De  la 
Guerra,  Randolph  and  Bigler. 

At  the  opening  of  the  March  term  of  his 
court,  in  185 1,  Judge  Parsons  delivered  a 
charge  to  the  grand  jury,  in  which,  among 
other  things,  he  said  that,  while  the  liberty 
of  the  press  was  essential  to  the  safety  of 
free  and  popular  institutions,  yet,  when  that 
liberty  degenerated  into  licentiousness,  when 
it  was  prostituted  to  baneful  purposes,  so  as 
to  cither  disturb  the  public  tranquillity  or  to 
slander  or  libel  individual  character,  the  grand 
jury  ought  to  interfere. 

The  San  Francisco  Herald,  in  its  issue  of 
the  following  morning,  contained  an  editorial 
under  the  title,  "The  Press  a  Nuisance,"  in 
which  it  referred  to  the  queer  things  of  the 
Judge's  charge,  and  said  that,  "according  to 
the  report  of  the  Judge,  the  papers  of  the 
town  constitute  a  nuisance  and  should  be  pros- 
ecuted as  such  by  the  county  authorities." 
The  article  went  on  to  speak  of  the  "judicial 
madness"  of  the  time,  and  declared  that  "our 
courts  cover  crime  with  the  folds  of  the  er- 
mine ;  they  lift  their  impotent  arms  to  scourge 
an  unfettered  press  with  rods  of  justice,  as 
they  style  it.  They  drop  the  tears  of  a  bastard 
mercy  upon  the  robbers  and  the  assassins  who 


History  of  the  Bench  and  Bar  of  California. 


477 


threaten  our  lives  and  our  property;  they 
turn  with  a  scowl  of  wrath  and  an  arm  of 
vengeance  upon  the  press  which  dares  to  com- 
plain of  the  tenderness  with  which  offenders 
are  treated. 

"If  we  err  not,  Judge  Parsons  was  present 
in  many  of  the  scenes  which  passed  before 
the  City  Hall  some  ten  days  ago.  He  may 
have  observed  the  deep  discontent  with  which 
the  people  listened  to  him  when  he  coun- 
seled them  to  leave  the  prisoners,  Stuart  and 
Wildred,  to  the  legal  courts  of  the  State.  He 
may  have  heard  the  curses,  not  stjppressed 
even  by  his  presence,  uttered  against  the 
courts  as  now  organized  and  constituted.  If 
the  Judge  could  hardly  stand  before  the  peo- 
ple when  he  appeared  merely  as  counsel  for 
the  parties  summarily  arraigned  before  the 
people  in  mass  assembled,  how  much  weaker 
would  he  be  if  called  upon  to  plead  his  own 
cause  before  an  outraged  and  indignant  pub- 
lic? If  we  were  the  guardian  angel  of  the 
District  Judge  we  would  whisper  in  his  ear, 
'Beware !'  " 

On  the  opening  ol  the  court  the  same  morn- 
ing. Judge  Parsons  made  an  order  on  John 
Nugent  and  William  Walker,  the  last-named 
the  famous  filibuster  of  later  times,  editors 
and  proprietors  of  the  Herald,  to  show  cause 
why  they  should  not  be  punished  for  con- 
tempt. Walker  appeared  and  was  heard, 
through  his  counsel,  Edmund  Randolph  and 
C.  T.  Botts,  on  a  motion  to  discharge  the  or- 
der. The  district  attorney,  Delos  Lake,  re- 
plied in  support  of  the  order.  The  Judge 
filed  a  written  opinion  of  some  length,  over- 
ruling tlie  motion  to  discharge  the  order. 
Walker  then  answered  in  writing,  that  he  was 
the  author  of  the  obnoxious  editorial  and 
wrote  it  to  promote  justice,  and  he  believed 
the  facts  stated  therein  were  true,  and  the 
reference  correct.  Judge  Parsons  remarked 
from  the  bench  that  "this  indelicate  and  im- 
pudent answer  puts  the  matter  beyond  ques- 
tion as  to  the  intent  of  the  defendant,"  and 
that  "the  publication  was  a  gross  libel  on  the 
court.'  He  fined  Walker  $500,  and  ordered 
him  committed  until  the  fine  was  paid. 

The  Icgislattire  was  then  in  session  at  San 
Jose,  and  Walker  memorialized  it  for  the  im- 
peachment of  Judge  Parsons  for  gross  tyranny 
and  oppression.  A  special  committee  of  the 
assembly  reported  that  the  Judge  should  be 
im])cachcd.  The  assembly  did  not  adopt  this 
report,  but  referred  the  matter  to  another  com- 
mittee. This  committee  made  a  very  ex- 
haustive    examination,     and     two    elaborately 


written  reports,  the  majority  concluding  that 
there  was  no  cause  for  impeachment,  and  the 
charges  against  Judge  Parsons  were  dismissed 
on  motion  of  Hon.  Stephen  J.  Field. 

This  early  chapter  in  the  California  career 
of  Levi  Parsons  faded  to  a  shadow  beside  the 
history  of  his  connection  with  the  famous 
Bulkhead  bill.  The  gigantic  scheme  was 
chiefly  inspired  by  him,  and  his  would  have 
been  the  greater  part  of  the  wealth  and  politi- 
cal power  which  must  have  resulted  from  the 
enactment  of  the  measure.  It  was  before  the 
legislature  at  several  sessions.  Finally,  at  the 
session  of  i860,  it  passed  both  branches  of  the 
legislature  against  the  overwhelming  protest 
of  San  Francisco,  which  it  chiefly  concerned. 
The  bill  proposed  to  give  "to  the  San  Fran- 
cisco Dock  and  Wharf  Company  (composed  of 
Levi  Parsons,  Dr.  H.  S.  Gates,  J.  Mora  Moss, 
John  Nightingale,  Abel  Guy,  John  B.  Felton 
and  John  Crane)  the  right  to  build  a  bulkhead 
or  seawall,  with  the  necessary  piers,  wharves 
and  docks,  upon  the  water  line  of  185 1,  with 
the  right  to  collect  dockage,  wharfage  and 
tolls,  also  to  construct  wharves  and  piers  pro- 
jecting at  right  angles  from  the  seawall  to  a 
length  of  600  feet." 

Governor  Downey  vetoed  and  so  killed 
this  bill.  His  veto  mes.sage  which  admirably 
reflected  the  sentiment  of  this  people,  declared 
that  if  the  bill  should  become  a  law,  "all  com- 
mercial intercourse  with  San  Francisco  would 
be  effectually  cut  off,  or  be  carried  on  upon 
such  terms  as  the  Dock  and  Wharf  Com- 
pany might  dictate."  There  was  a  great  dem- 
onstration of  the  people  of  San  Francisco,  en 
masse,  in  honor  of  Governor  Downey,  at  his 
next  visit  to  that  city. 

Judge  Parsons  once  had  a  controversy  with 
Chief  Justice  Murray,  and  published  a  philippic 
against  him.  The  authorship  was  attributed 
l)y  many  to  Delos  Lake. 

The  Judge  was  educated  at  Union  College, 
New  York.  He  possessed  a  vigorous  mind 
and  had  many  good  qualities  of  head  and 
heart.  As  sponsor  of  the  Bulkhead  bill  (al- 
ways styled  the  "Parsons  Bulkhead  bill),  he 
became  the  bctc  noire  of  the  community.  He 
always  had  large  means,  and  his  home  for  a 
long  time  was  on  California  street,  nearly  op- 
posite Grace  church,  San  Francisco.  He  re- 
moved from  the  State  permanently  in  1866,  and 
lived  (juietly  in  New  York  city.  Three  years 
before  this,  we  conversed  with  him  for  the  last 
time,  in  Virginia  City,  Nevada.  He  was  in- 
specting tlio  new  mines  with  a  view  to  invest- 
ment. 


478 


History  of  the  Bench  and  Bar  of  California. 


His  beneficence  was  far  greater  than  was 
generally  known,  among  his  gifts  to  different 
institutions  being  one  of  $50,000  to  Union  Col- 
lege. He  also  endowed  the  Parsons  Library 
at  Gloversville,  N.  Y.  Among  the  intimate 
acquaintances  of  his  early  years  was  the  Duke 
of  Wellington,  and  he  was  well  known  in 
European  capitals,  having  crossed  the  Atlantic 
forty-two  times. 


E.  W.  F.  SLOAN. 


Edward  W.  F.  Sloan  was  a  venerated  leader 
of  the  San  Francisco  bar  for  fifteen  years. 
Like  Heydenfeldt,  Holmes  and  Pringle,  and 
other  first  class  legal  minds  that  dignified  the 
profession  in  this  State,  he  was  a  native  of 
South  Carolina.  He  had  adorned  the  bench 
there.  He  came  to  California,  a  highly  edu- 
cated man  and  an  experienced  lawyer,  in  185 1. 
Settling  at  San  Francisco,  he  practiced  alone 
for  the  greater  part  of  his  period  there,  but 
had  an  association  in  1859-60  with  S.  M.  Bow- 
man, at  another  time  with  Wm.  H.  Rhodes 
("Caxton"),  and,  at  his  death,  he  had  been 
in  partnership  for  a  few  years  with  R.  R. 
Provines.  He  died  of  pneumonia,  at  the 
age  of  55  years,  on  August  25,  1866.  His  high 
character  and  standing  were  strongly  and 
beautifully  set  forth  in  the  memorial  proceed- 
ings in  the  Supreme  Court,  at  its  next  term, 
October  i,  1866.  At  the  opening  of  the  Court, 
J.  G.  McCullough,  attorney-general,  addressed 
the  Court  as  follows : 

"May  it  please  the  Court :  Since  our  last 
meeting,  E.  W.  F.  Sloan  has  been  summoned 
from  this  bar  by  death,  and  I  invite  your  hon- 
ors to  pay  fitting  homage  to  his  memory.  It 
seems  strange  and  sad  not  to  see  the  familiar 
form  and  meet  the  quiet  smile  of  one  who  was 
so  long  a  regular  attendant  at  the  sessions  of 
this  Court.  There  is  no  other  to  fill  the  ach- 
ing void.  For,  what  one  of  his  brothers  in  this 
State  would  hesitate  to  award  to  him  the  pos- 
session of  a  rare  and  happy  combination  of 
moral  and  mental  qualities  united  in  no  other? 
And  what  higher  tribute  than  this  could  be 
paid  to  the  real  worth  of  the  deceased?  Gifted 
with  an  intellect  of  the  first  order,  he  had 
trained  it  in  the  school  of  a  severe  discipline, 
and  enriched  it  with  an  untiring  culture.  He 
was  a  lawyer  of  most  profound  research  and 
of  the  loftiest  attainments,  and  in  our  profes- 
sion was  almost  or  altogether  facile  princcps. 
With  a  mind  that  was  ever  aiming  after  the 
truth  and  employing  a  logic  that  was  wonder- 
fully simple  and  searching,  his  inquiry  always 
was,  not  so  much  what  is  the  law,  but  why 
is  it  so?  With  the  nicest  sense  of  honor,  stu- 
diously true  to  court  and  client  and  opposing 
counsel,  of  incorruptible  integrity,  he  was  a 
bright  ornament  in  the  foremost  ranks  of  the 
legal  profession.     As  a  general  scholar  he  had 


devoted  himself  as  his  labor  would  permit  to 
literature,  the  arts  and  the  sciences,  and  had 
gathered  learning  and  garnered  gems  from 
e\ery  department.  As  a  citizen  he  religiously 
fulfilled  his  every  duty  cheerfully.  As  a  man, 
his  kindly  heart,  his  genial  manners,  his  uni- 
form courtesy,  his  unostentatious  bearing,  his 
retiring  habits,  his  native  modesty,  his  simple 
sublimity  of  character,  won  bench  and  bar, 
lawyer  and  layman,  and  challenged  the  ad- 
miration of  all. 

"But  he  is  gone,  and  I  but  respect  his  un- 
affected dislike  of  all  parade  by  being  brief 
on  this  occasion.  A  great  lawyer,  a  good  cit- 
izen, an  honest  man;  a  pure  Christian,  has 
died.  This  is  his  greatest  praise,  as  this  was 
the  involuntary  tribute  of  all  who  knew  him 
when  his  death  was  announced.  Be  it  ours 
to  iinitate  his  example !  By  request  of  the 
members  of  the  San  Francisco  bar,  I  move 
your  Honors  that  the  resolutions  adopted  at 
a  meeting  thereof,  and  which  I  now  present, 
may  be  entered  upon  the  minutes  of  the  Court, 
in  honor  of  the  lamented  deceased." 

The  resolutions  of  the  bar  meeting  were  as 
follows : 

"Whereas,  It  has  pleased  Divine  Providence 
to  remove  by  death  our  friend  and  brother,  E. 
W.  F.  Sloan,  we,  the  members  of  the  bar,  as- 
sembled for  the  purpose  of  paying  a  tribute  to 
his  merit  as  a  lawyer,  and  expressing  our  sor- 
row at  his  loss,  do  adopt  the  following  resolu- 
tions : 

"Resolved,  That,  in  the  death  of  our  brother, 
the  profession  has  lost  one  of  its  ablest  and 
most  learned  members,  one  who  through  a  ca- 
reer coeval  with  the  existence  of  the  State, 
was  always  distinguished  for  intellectual  at- 
tainments of  the  highest  order,  for  unswerv- 
ing integrit}'.  and  for  uniform  kindness  and 
courtes}-  in  all  his  intercourse  with  his  brethren 
of  the  bar. 

"Resolved,  That  while  we  deplore  the  loss 
of  this  ornament  to  his  profession,  we  take 
occasion  to  recall  to  mind  for  imitation  his 
studious  habits,  his  unaffected,  genial  man- 
ners, his  ([ualities  of  untiring  industry  and 
courtesy  of  deportment,  his  delicate  sense  of 
honor,   and   his   profound  yet   varied  learning. 

"Resolved.  That  while  he  possessed  a  public 
reputation  and  displayed  a  legal  abilitj'  which 
placed  him  in  the  foremost  rank  of  the  pro- 
fession, he  uniformly  manifested  in  all  the  pri- 
vate walks  of  life  an  unostentatious  simplicity 
of  character  which  endeared  him  to  his  friends 
and  commanded  universal  admiration  and  re- 
spect." 

After  the  remarks  of  the  attorney-general, 
and  the  reading  of  the  resolutions,  the  Chief 
Justice.  Hon.  John  Currey,  made  the  following 
response :  "The  members  of  this  Court  cor- 
dially unite  with  the  bar  in  commemorating 
the  excellence  and  worth  of  our  departed 
brother.  At  the  time  of  his  death.  Judge  Sloan 
had  been  a  resident  and  citizen  of  the  State 
for  more  than  fifteen  years.  Soon  after  his 
arrival  on  these  shores  his  ability  and  charac- 
ter as  a  lawyer  became  known,  and  he  at  once 
took  his  place  in  the  front  rank  of  tlie  profes- 
sion, and  maintained  that  position  with  honor 


History  of  the  Bench  and  Bar  of  California. 


479 


to  the  end  of  his  career.  He  was  a  man  gifted 
by  nature  with  more  than  ordinary  capacity. 
His  mind  was  early  improved  by  a  Hberal  ed- 
ucation. He  was  known  to  those  most  inti- 
mate with  him  as  possessing  high  attainments 
in  the  departments  of  natural  philosophy,  his- 
tory, and  the  exact  sciences.  His  learning  in 
common  law  science  was  perhaps  superior  to 
that  of  any  other  man  within  the,  State,  and 
no  one  among  us  better  understood  than  he 
the  doctrines  and  principles  of  equity  juris- 
prudence. With  all  his  ability  and  learning 
he  was,  in  his  intercourse  with  his  fellowmen, 
uniforml}'  modest  and  unpretending.  There 
was  nothing  offensively  aggressive  in  his  na- 
ture. As  an  advocate  he  won  his  way  by  the 
force  of  his  reasoning  and  the  truths  which 
he  uttered.  In  the  statement  of  legal  prop- 
ositions, he  always  aimed  to  be  true  to  the 
letter  and  spirit,  and,  in  relation  to  facts,  he 
was  never  known  to  any  of  us  to  deviate  from 


a  scrupulous  exactness.  He  was  a  man  of  in- 
tegrity, honest  with  himself  and  with  all  men. 
Since  the  organization  of  this  Court  no  term 
of  it  has  passed  which  he  has  not  attended. 
He  was  employed  in  many  of  the  most  import- 
ant cases  that  have,  during  the  incumbency  of 
the  present  bench,  been  submitted  to  and 
passed  upon  by  it,  and  how  well  he  acquitted 
himself,  his  arguments  reported  in  the  vol- 
umes of  decisions  will  bear  testimony.  He 
had  the  respect  and  confidence  of  the  Courts 
and  of  his  professional  brethren  throughout 
the  land,  as  also  of  all  good  men  who  enjoyed 
his  acquaintance.  It  is  due  to  ourselves  and 
to  those  who  may  fill  the  ranks  of  the  profes- 
sion hereafter,  that  his  name  should  be  pre- 
served in  respectful  and  affectionate  remem- 
brance ;  and,  as  a  permanent  testimonial  to 
that  end,  the  proceedings  this  day  had  will 
be   entered   upon   the    records   of  the    Court." 

—THE  EDITOR. 


i 


VETERANS  SURVIVING 

:^  :^  IN      1900  ^  J* 


I 


(S»  tfcife  A  aSa  (t)  &  <l&  ja  (&> 


HISTORY  of  the 
BENCH  and  BAR 
of  CALIFORNIA 


VETERANS  SURVIVING  in  1900 


JOHN  CURREY. 

John  Currey  was  a  justice  of  tlie  Supreme 
Court  of  California  from  the  first  day  of  Jan- 
uary. 1864,  for  the  term  of  four  years,  and 
for  the  last  two  years  thereof  was  the  chief 
justice  of  that  court. 

For  more  than  twenty  years  we  have  en- 
joyed a  friendly  acquaintance  with  him,  and 
during  that  time  have  incidentally  learned 
from  him  much  of  himself  and  his  family  his- 
tory. In  a  conversation  with  him  some  time 
ago  respecting  this  new  history  of  legal  and 
judicial  matters  covering  the  period  of  the  last 
fifty  years  in  this  State,  we  told  him  it  was 
our  intention  to  write  our  personal  sketches 
of  some  of  those  who  had  been  prominent  as 
lawyers,  and  in  some  cases,  judges,  during 
this  neriod,  and  among  them  a  sketch  of  his 
own  life  and  career.  To  this  he  answered 
that  there  had  already  appeared  in  our  book 
of  sketches  of  "'Bench  and  Bar.''  published 
some  years  ago.  a  notice  of  himself.  He 
seemed  to  tliink  tliere  was  no  good  reason  for 
writing  him  up  again,  saying  that  more  of 
conunon])lace  matter  had  been  written  about 
him  and  printed  in  the  newspapers  and  pe- 
riodicals of  the  day,  than  was  altogether  agree- 
able. We  told  him  we  could  not  relinquish  our 
l)urposc  of  writing  a  sketch  of  him  as  a  pioneer 
who  had  I)een  fnmi  the  beginning  a  part  of 
the  legal  and  iudirial  history  of  this  State, 
and  we  furtlier  said  that  in  sketches  of  the 
kind  which  we  proposed  to  write,  it  was  usual 
to  say  something  of  family  history.  To  this 
he  replied  that  the  sketches  which  he  had 
read  were  generally  unnecessarily  prolix  and 
minute    in    the    detail    of    facts    and    circum- 


stances of  no  particular  interest  to  the  general 
reader ;  and  he  then  said  if  it  was  our  fixed 
purpose  to  write  of  him  again,  he  would 
request  that  we  say  no  more  of  family  his- 
tory or  of  his  anabasis  from  his  beginning  on 
through  life  to  the  present  time  of  his  ad- 
vanced age  than  we  might  deem  necessary  for 
the  purpose  of  our  sketch.  To  this  we  readily 
agreed,  and  here  follows  the  narrative  as  it 
came   from  him  : 

John  Currey's  ancestors  on  the  father's  side 
were  the  Curreys,  the  Moores.  and  the  Chan- 
nings ;  on  the  mother's  side,  the  Wards,  the 
Fowlers,  and  the  Drakes.  One  of  these  fami- 
lies was  Scotch,  the  others  English.  The  emi- 
grant of  each  fatnilj'  came  to  America  as 
early  as  1680.  Of  his  ancestral  generations, 
lineal  and  collateral,  who  lived  in  the  time 
of  the  War  of  the  .Vmerican  Revolution,  some 
were  on  one  side  of  the  absorbing  (piestion 
of  that  day,  and  some  were  on  the  other.  He 
says  that  so  far  as  he  knows  their  history,  they 
were  a  brave  and  law-abiding  people.  There 
were  no  criminals  or  idiots  or  insane  persons 
among  them.  His  father  was  esteemed  by 
all  who  knew  him  as  .a  man  of  intellectual 
force  and  sound  judgment,  and  of  unswerv- 
ing integrity  in  his  dealings  with  men.  His 
mother  was  a  woman  of  an  affectionate  and 
benevolent  nature;  always  kind  to  the  desti- 
tute ])oor,  and  to  all  in  trouble.  She  pos- 
sessed a  remarkable  memory  of  persons  and 
tilings  of  her  earlier  life.  Of  the  stirring  in- 
cidents of  the  war  her  mind  was  a  storehouse 
of  traditions.  Both  were  born  during  the 
period  of  the  war,  in  Cortland  Township, 
Westchester  county.  New  York,  near  the  vil- 
lage of  Peekskill.  in  that  township,  and  within 


484 


History  of  the  Bench  and  Bar  of  California. 


about  ten  miles  of  West  Point,  which  is  in 
the  midst  of  the  Highlands  of  the  Hudson 
river.  All  of  that  country  was  throughout 
the  war-time  of  those  years  one  of  the  cen- 
ters of  cruel  war  disturbances. 

From  a  small  beginning  as  a  farmer  his 
father,  in  the  course  of  years,  acquired  large 
real  estate  possessions. 

Oh  their  farm  there  his  parents  lived  their 
long  lives,  each  to  the  age  of  nearly  ninety 
years.  There  Judge  Currey  was  born,  in  Octo- 
ber, 1814,  being  the  youngest  and  now  the 
only  survivor  of  a  large  family  of  children, 
all  of  whom  were  persons  of  exemplary  lives. 
There  he  grew  to  manhood,  blessed  with  a 
vigorous  constitution,  inherited  from  his  par- 
ents. There  he  performed  his  share  of  the 
labors  on  the  farm,  until  he  left  home  and 
passed  through  several  academies  and  entered 
college,  where  he  remained  until  he  acquired 
a  sufficient  amount  of  classical  learning  to  en- 
title him  to  a  reduction  of  four  years  from  the 
term  of  seven  years  required  of  a  student  in 
a  law  office  before  he  became  entitled  to  ad- 
mission to  the  bar  as  an  attorney  at  law  and 
solicitor  in  chancery. 

In  September,  1839.  he  became  a  bar  stu- 
dent under  the  tutorship  of  the  Hon.  Wil- 
liam Nelson,  an  eminent  lawyer,  who  recided 
at  Peekskill.  With  him  he  remained  three 
years,  and  then,  upon  an  examination,  was  ad- 
mitted to  the  bar.  After  three  years  of  prac- 
tice as  attorney  and  solicitor,  he  was  again 
examined  and  passed  to  the  degree  of  coun- 
sellor, which  entitled  him  to  appear  in  the 
highest  courts  of  the  state  in  the  argument  of 
causes  on  appeal.  After  nearly  seven  years  of 
successful  practice,  a  part  of  the  time  at  Peeks- 
kill  and  a  part  of  the  time  in  the  larger  field 
of  Kingston,  in  Ulster  county,  he  resolved  to 
migrate  to  California,  and  thereupon,  on  the 
last  day  of  June,  1849,  he  started  on  his 
voyage  via  the  Isthmus  of  Panama,  arid 
reached  San  Francisco  on  the  i8th  of  August, 
of  that  year. 

After  a  visit  to  the  gold  diggings,  he  re- 
turned to  San  Francisco,  and  in  December 
opened  a  law  office  and  practiced  his  profes- 
sion until  in  February,  1851,  when  he  visited 
his  old  home  and  friends  in  New  York.  His 
visit  there  being  over,  he  returned,  bringing 
with  him  his  good  wife  and  little  son,  their 
first  born,  arriving  at  San  Francisco  in  the 
latter  part  of  June,  to  find  the  city  destroyed 
by  the  two  great  fires  of  May  and  June  of  that 
year.     This  condition  of  things  determined  him 


to  remove  to  the  country,  where  he  had  done 
some  professional  business  before.  They  made 
Benicia  their  residence.  That  place  was  then 
the  headquarters  of  the  United  States  Army 
on  the  Pacific,  and  the  depot  for  the  ships 
of  the  Pacific  Mail  Steamship  Company.  It 
was  the  county  seat  of  Solano  county,  one 
of  the  counties  of  the  Seventh  Judicial  Dis- 
trict, which  comprised  within  its  limits  the 
present  counties  of  Contra  Costa,  Solano, 
Xapa,  Lake.  Marin.  Sonoma  and  Mendocino, 
a  held  of  vast  resources  and  enterprise.  He 
soon  obtained  a  large  practice,  which  so  in- 
creased in  volume  as  to  require  about  all  he 
could  do  to  properly  manage  and  dispose  of  it. 
His  business  was  general  in  its  scope.  Land 
litigations  were  the  most  important,  and  con- 
tinued for  eight  years  or  more  before  the 
Spanish  and  Mexican  land  titles  were  settled 
under  the  act  of  congress  of  March,  1851, 
rclatiup-  thereto. 

He  says  his  country  practice,  laborious  as 
it  was,  was  agreeable  and  pleasant.  The  stated 
terms  of  court,  friendly  bar,  and  an  able  and 
learned  judge,  who  held  the  scales  of  justice 
even,  as  Judge  McKinstry  did,  and  juries 
composed  of  intelligent,  patient  and  honest 
men — all  contributed  to  make  the  practice  of 
the  law  pleasant  in  those  days. 

During  the  years  of  his  country  practice, 
from  the  beginning,  until  1864,  he  did  a  large 
business  in  the  Supreme  Court.  This  period 
covered  the  time  when,  among  others,  Jus- 
tices Murray.  Heydenfeldt,  Field  and  Bald- 
win, were  on  the  bench. 

In  1861  he  removed  to  San  Francisco,  where, 
and  at  the  same  time  in  the  country,  he  tried 
many  cases,  some  of  much  importance. 

In  1863  he  was  elected  a  justice  of  the  Su- 
])reine  Court.  His  work  as  a  member  of  that 
court  is  a  matter  of  record  which  speaks  for 
itself.  After  his  retirement  from  the  bench 
he  practiced  law  for  about  eight  years,  pleas- 
antly associateu  with  Oliver  P.  Evans.  Dur- 
ing this  period  he  became  partially  blind  by 
reason  of  an  acute  inflammation  of  his  eyes, 
which  rendered  it  necessary  for  him  to  retire 
from  the  active  business  of  a  professional 
life,   greatly   to   his   disappointment. 

Of  the  children  of  his  household  there  were 
four,  three  of  whom  grew  up  to  and  beyond 
the  age  of  legal  majority.  Each  of  these  re- 
ceived a  liberal  education.  One  of  his  sons 
graduated  at  Williams  College,  the  other  at 
Yale,  and  the  daughter  at  a  high  school  in 
New  York  City.  Three  of  his  four  chil- 
flren.  and  their  kind  and  devoted  mother,  have 


History  of  the  Bench  and  Bar  of  California. 


485 


gone  on  from  earth.  One  only  remains,  his 
son,  Robert  J.  Currey,  the  solace  and  com- 
fort of  his  declining  life. 

We  have  closed  the  narrative,  and  now, 
without  attempting  an  elaborate  delineation 
of  his  character  as  a  lawyer  or  otherwise,  it 
may  be  said  the  qualities  and  attributes  that 
most  distinguished  him  in  his  active  life  were 
the  soundness  of  his  judgment  and  logical 
reasoning  powers,  his  tenacious  memory,  his 
integrity  of  purpose  and  steady  loyalty  to 
principle  and  right,  according  to  the  impetus 
of  conscience.  So  long  as  there  was  any- 
thing to  do  in  the  examination  and  prepa- 
aration  of  a  case  for  trial  or  argument,  his 
industry  was  untiring,  the  consequence  of 
which  was  that  he  was  always  ready  for 
the  fray.  In  the  presentation  of  his  case  to 
court  or  jury  he  was  earnest  and  direct,  and 
lost  no  time. 

Aside  from  his  study  and  the  practice  of  the 
law,  he  found  time  to  devote  to  the  reading 
of  history,  biography,  essays,  poetry  and  tht 
current  literature  of  the  day.  Sound  health, 
regular  habits  and  a  patient  industry  enabled 
him  to  give  a  portion  of  his  time  to  other 
things  than  jurisprudence,  which  was  the  ab- 
sorbing study  of  his  entire  professional  life. 

In  his  intercourse  with  his  friends  and  ac- 
quaintances of  the  bar  and  others,  he  was 
cordial  and  buoyant  in  spirit,  enjoying  with 
them  the  recitals  of  the  ludicrous  and  ridicu- 
lous incidents  of  California  life,  as  well  as 
indulging  in  the  discussion  of  business  inter- 
ests or  political  and  governmental  affairs. 
Those  were  the  young  days  of  California,  and 
the  people  were  then  young  and  active,  cheer- 
ful and  hopeful. 

In  politics  Judge  Currey  was  a  Whig,  and 
so  continued  as  long  as  there  was  a  Whig 
party.  For  a  time  he  was  without  a  party. 
He  was  always  an  anti-slavery  man  in  con- 
science, but  not  an  abolitionist  in  any  party 
sense.  He  was  opposed  to  the  extension  of 
the  institution  of  slavery,  and  when  the  slave 
propagandists  of  Kansas  and  elsewhere  un- 
dertook, in  1857  and  1858,  to  make  slavery  an 
institution  of  Kansas  against  the  will  of  a  ma- 
jority of  the  people  of  that  territory,  he  joined 
the  i)arty  led  by  Senator  Brodcrick.  in  op])o- 
sitiiui  to  the  pro-slavery  clement  in  this  Slate, 
which  was  giving  its  moral  and  political  sup- 
port, as  far  as  it  could  be  done  by  them,  for 
tlic  ])ermaiient  establishment  of  slavery  in 
Kansas.  At  that  date  nearly  two-thirds  of 
the    voters    in    this    State    favored   the    slavcrv 


side  of  the  question  in  Kansas,  which  was 
disturbing  the  whole  country  from  center  to 
circumference.  In  1858,  and  also  in  1859,  his 
name  was  placed  at  the  head  of  the  ticket  of 
this  newly  constructed  anti-slavery  extension 
party  or  Free-state  party.  But  in  the  election 
of  that  year,  though  he  polled  the  full  strength 
of  his  party,  and  even  more,  he  suffered  the 
fate  of  minority  parties  everywhere.  Beaten, 
but  not  conquered,  his  party  retired  for  the 
time,  with  their  flag  flying  and  their  arms  at 
their  side.  Judge  Currey  claims  that  the  ef- 
fect of  these  campaigns  of  the  party  to  which 
he  belonged,  saved  the  State  from  seceding 
in  1861.  He  says  this  is  the  logic  of  the  then 
existing  condition  of  affairs,  which  he  believes 
will  be  recognized  in  history  yet  to  be  written. 
In  1870,  after  his  retirement  from  public 
life,  Williams  College  conferred  on  hirn  the 
honorary  degree  of  Doctor  of  Laws,  and  in 
1897,  while  in  New  York,  he  became  a  mem- 
ber of  the  Empire  State  Society  of  the  Sons 
of  the  American  Revolution. 

In  passing  to  the  close  of  this  sketch  it  is 
proper  to  say  that  Judge  Currey  never  had 
any  inclination  for  gambling,  and  never  knew 
a  gambling  card  game.  He  says  he  never 
used  profane  language  on  any  occasion  or  un- 
der any  provocation ;  that  the  command,  "Thou 
shalt  not  take  the  name  of  the  Lord,  thy 
God,   in   vain."   was  always  before  him. 

Now,  in  the  evening  of  life,  he  still  finds 
occupation  in  pursuits  of  law  and  literary 
studies,  and  in  governmental  and  political  af- 
fairs, as  also  in  the  cultivation  and  improve- 
ment of  his  farm,  for  wliicli  ho  believes  he  has 
an  inherited  taste  and  inclination. 

There  has  always  dwelt  a  good  deal  of  hu- 
mor and  poetry  in  his  soul.  He  is  a  man  of 
(|uicl  tastes  and  bearing,  but  never  sequesters 
himself.  He  is  approachable,  not  impulsive 
nor  magnetic.  His  strong  side  is  judgment, 
yet  by  appeals  to  his  heart  he  has  been  im- 
posed upon  time  and  again,  and  he  has  de- 
clared to  us  that  he  never  expects  to  be  able 
to  overcome  this  weakness,  as  he  calls  it.  He 
is  re.illy  a  magnanimous  man  and  a  firm  friend. 
Judge  Currey's  delight  is  the  society  of 
ihougluful  men — men  of  moral  and  intellectual 
worth.  Jle  is  a  philosopher  of  the  Emerson 
.school.  From  what  has  been  said  of  his  mem- 
ory and  other  attributes,  it  can  be  readily 
seen  that  there  is  much  of  entertainment  and 
instruct  ion  in  his  conversation. 


486 


History  of  the  Bench  and  Bar  of  California. 


AXXIS  MERRILL. 

In  the  summer  of  1900  we  ventured  to  refer 
to  this  gentleman  as  the  patriarch  of  the  Cali- 
fornia bar.  But  he  declined  the  compliment 
in  favor  of  Judge  John  Currey.  and  a  few 
others.  His  professional  life  has  not  been 
so  lengthy  or  so  active,  or  so  conspicuous,  as 
those  of  Judge  Currey  and  some  others,  chiefly 
because  he  was  himself  pleased  to  end  it  so 
very  long  ago. 

He  was  born  in  1810.  on  the  9th  of  Sep- 
tember (Admission  Day!),  and  at  the  age  of 
ninety,  he  is  still  light  of  foot  and  heart — and 
safe  in  counsel,  too;  for.  even  professionally, 
he  is  not  secluded ;  there  are  men  of  substance 
who  seek  him  in  his  home,  and  take  his  sage 
advice. 

We  met  him  first  in  1866.  It  was  in  the 
office  of  Eugene  Casserly.  at  San  Francisco. 
He  was  even  then  practically  retired,  but  had 
not  closed  his  office.  Mr.  Casserly  introduced 
him  to  an  attorney  who  had  been  in  the  prac- 
tice in  that  city  for  some  years,  and  who  in- 
quired what  was  Mr.  Merrill's  line  of  busi- 
ness. The  well-read  Casserly  answered  before 
Mr.  Merrill  could  speak,  "He  is  a  lawyer,  and 
has  been  in  full  practice  here,  and  in  Boston 
before  he  came  here.  You  will  find  his  name 
scattered   over  the  Massachusetts  Reports." 

"Before  leaving  Boston,"  he  said  to  us.  "I 
enjoyed  a  fine  practice  for  some  years.  I  gave 
this  up  and  went  away  because  of  the  north- 
east winds,  which  were  very  injurious  to  my 
health. 

Over  thirty  years  after  this  first  meeting. 
in  a  talk  which  we  had  with  him,  the  old  bar 
leader,  so  long  hidden  from  the  professional 
eye.  became  reminiscent. 

"I  was  a  professor  of  Latin  and  Greek  for 
six  years.  1836  to  1842.  in  McKendree  Col- 
lege, St.  Clair  county.  Illinois.  After  my  res- 
ignation I  received  from  the  college  the  degree 
of  LL.  D. 

"I  arrived  in  San  Francisco  in  1849,  and 
began  the  practice  of  law  in  the  same  year. 
I  cleared  twenty  thousand  dollars  the  first  year 
I  was  here.  My  offices  at  that  lime  com- 
prised two  little  rooms  in  the  City  Hotel,  at 
the  southwest  corner  of  Clay  and  Kearny 
streets.  My  rent  was  $275  a  montli,  payable 
in  advance. 

"Lloyd  Tevis  told  me  once  that  lie  went  to 
London  to  try  to  sell  the  Ontario  gold  mine, 
located  in  Utah  ;  that  he  used  all  his  arts  in 
trying  to  sell  it.  but  in  vain :  that  he  and 
Haggin  then  went  to  work  and  developed  the 


mine,  and  it  had  since  yielded  eight  millions 
of  dollars  in  dividends ;  he  had  offered  it  in 
London  for  two  hundred  thousand  dollars. 

"About  three  years  after  Haggin  and  Tevis 
had  removed  to  San  Francisco  from  Sacra- 
mento. Tevis  said  to  me  that  he  brought  with 
liim  from  Sacramento  $130,000  in  coin,  made 
in  money-lending  there,  and  that  this  sum 
liad  brought  him  in  three  per  cent  per  month 
for  the  three  years  he  had  been  in  San  Fran- 
cisco. 

"William  Sharon  was  misunderstood  and 
misrepresented.  He  hated  a  liar,  and  was  him- 
self one  of  the  most  truthful  of  men.  He  had 
his  desk  before  he  entered  the  board  of  brokers 
in  my  law  office.  I  was  his  adviser,  and  he 
used  to  bring  his  customers  to  me  to  receive 
advice.  In  the  palmy  days  of  the  Belcher  mine, 
located  at  Gold  Hill,  Nevada,  he  told  me  in 
San  Francisco  that  the  stock  was  going  up 
in  value,  and  advised  me  to  purchase.  I  said, 
'Buy  me  $ro.ooo  worth,  Mr.  Sharon.'  He  did 
so.  About  three  years  afterwards  he  advised 
me  to  sell.  I  said.  'Sell  mine  for  me,  Mr. 
Sharon.'  He  sold.  I  made  a  good  profit.  Be- 
fore he  sold  his  own  stock  he  received  in 
dividends  from  the  Belcher  mine  five  hundred 
thousand  dollars  a  month  for  a  year  and  a 
half  or  more.  When  he  told  me  this,  he 
said  that  he  was  at  the  same  time  receiving 
si.xty-three  thousand  dollars  a  month  from  the 
\'irginia  City  &  Truckee  Railroad.  'And  I 
built  that  road,'  said  Mr.  Sharon,  'without  its 
costing  me  a  dollar.'  The  counties  through 
which  the  road  ran  had  given  subsidies.  If  I 
recollect  rightly,  bonds  had  been  issued  by 
the  company,  and  Sharon  held  or  sold  the 
bonds.  He  also  told  me  that  he  then  had  con- 
trol  of  twenty-five  millions   of  dollars. 

".\  few  years  later  he  said  he  had  met  heavy 
losses,  and  was  then  worth  fifteen  millions. 

"Many  people  have  believed  that  Sharon 
owed  his  rise  to  William  C.  Ralston  (that 
Ralston  made  Sharon). 

"Ralston  did  not  make  Sharon.  Both  were 
self-made  men.  I  knew  their  relations  to  each 
other. 

"Long  before  he  became  so  rich,  Sharon 
informed  me  one  day  that  he  had  lost  all  he 
had.  I  held  his  note  at  that  time  for  fifteen 
thousand  dollars,  indorsed  by  J.  D.  Fry.  It 
was  ])aid  at  maturity. 

"To  revert  to  the  agency  at  Virginia  City: 
When  a  loud  complaint  was  made  by  the  stock- 
holders of  the  Bank  of  Calift^rnia  in  San  Fran- 
cisco,   that    the    bank    w^as    speculating    in    the 


Annis  Merrill 


History  of  the  Bench  and  Bar  of  California. 


489 


Virginia  City  mines,  the  bank  stopped  such 
operations  there,  and  Sharon  individnally  took 
the  mines.  He  told  me  that  he  had  a  written 
report  of  the  condition  of  every  mine  tliere 
and  in  Gold  Hill  laid  on  his  table  every  after- 
noon at  five  o'clock." 

Mr.  Merrill  was  born  at  Harwich,  Massa- 
chusetts. When  a  child,  he  did  not  live  long 
in  any  one  locality,  his  father,  Joseph  Annis 
Merrill,  being  an  .tinerant  Methodist  clergy- 
man. He  was  better  informed  as  to  his  birth- 
place, however,  than  was  that  other  child,  a 
little  girl  of  like  parentage,  who,  on  being- 
asked  where  she  was  born,  answered,  "I  was 
not  born  anywhere  in  particular ;  my  father 
was  a  Methodist  minister." 

Rev.  J.  A.  Merrill  entered  the  ministry  at 
the  age  of  eighteen,  and  followed  it  faithfully 
for  fifty  years,  until  his  death  in  1849.  He  was 
devoted  to  the  cause  of  education,  and  was  one 
of  the  founders  of  Wilbraham  Academy,  the 
first  institution  of  learning  successfully  es- 
tablished b}'  his  denomination  in  America.  We 
have  read  that  he  was  a  "powerful  preacher 
and  a  critical  scholar,"  and  that  he  was  chap- 
lain in  the  celebrated  fighting  regiment  of  Col- 
onel Binney  in  the  War  of  1812.  His  father 
had  been  a  soldier  in  the  American  army 
throughout  the  Revolutionary  War,  and  wit- 
nessed the  surrender  of  Cornwallis  at  York- 
town.  The  Merrills  trace  their  ancestors  to 
England,  and  more  remotely  to  the  Htigue- 
nots  of  France. 

Annis  Merrill's  mother  was  Hannah  Jeweti, 
the  daughter  of  a  Baptist  minister  of  Cana- 
dian-English descent.  She  has  been  repre- 
sented as  "devotedly  religious,  well  educated, 
poetic  in  temperament,  and  lovciy  in  person  as 
well  as  in  spirit." 

Mr.  Merrill  after  some  years  at  the  common 
school,  entered,  at  the  age  of  ten,  Newmarket 
Academy.  Between  the  ages  of  twelve  and 
fourteen  he  worked  in  a  tannery  at  Wilbra- 
ham, Massachusetts.  He  worked  at  various 
laborious  callings  for  some  years  more,  and 
taught  school  in  winter.  In  his  twenty-first 
year  he  entered  Wesleyan  L'nivcrsity  and  cnm- 
plctcd  the  four  years'  course.  He  began  the 
study  of  law.  and  removed  to  Louisville,  Ky., 
where  he  received  a  call  from  McKendrec  col- 
lege, at  Lebanon,  Illinois,  to  the  professorship 
of  Latin  and  Greek.  He  accepted,  and  devoted 
seven  years  to  the  duties  of  that  position, 
teaching  also  political  economy.  He  gave  his 
spare  time  to  reading  law.  He  was  admitted 
to  the  bar  of  Illinois  Supreme  Court  in   1843, 


and,  resigning  his  professorship,  he  began  the 
practice  of  law  at  Belleville  in  that  state.  A 
year  later  he  went  back  to  Boston,  and  formed 
with  his  brother  the  law  firm  of  A.  &  A.  B. 
-Merrill.  His  biographer,  in  Bancroft's  "Chron- 
icles  of   the    Builders,"    says : 

"The  most  conspicuous  incident  of  his  prac- 
tice in  Boston  was  his  connection  with  Rufus 
Choate  in  the  celebrated  case  of  the  Common- 
wealth of  Massachusetts  versus  Albert  Tirrel, 
his  client,  tried  first  for  murder  and  after- 
ward for  arson,  and  acquitted  on  both  charges. 
The  defense  set  up  was  that  if  the  accused 
committed  the  deed,  he  was  in  a  somnambu- 
listic state  at  the  time  of  the  act,  and  there- 
fore not  morally  or  legally  responsible.  The 
plea  was  a  novel  one,  never  offered  before, 
perhaps,  nor  since,  and  extraordinary  ingenuity 
was  required  to  maintain  and  establish  it.  Mr. 
Choate's  argument  was,  of  course,  masterly, 
while  he  is  reported  to  have  remarked  to  his 
associate  counsel,  Mr.  Merrill,  whose  argu- 
ment, reported  in  substance  in  the  Boston 
press,  evinced  great  legal  ability,  and  profound 
study  of  the  science  of  human  pathology: 
"Publish  this  case,  and  it  will  immortalize 
you." 

Mr.  Merrill  arrived  in  California  on  the 
i8th  of  August,  1849.  It  will  certainly  interest 
the  profession  if  we  again  quote  his  biogra- 
pher, who  had  evidently  studied  the  mature 
lawyer  and  enjoyed  his  conversation: 

"He  had  enjoyed  the  benefit  of  a  home  fa- 
vorable to  the  formation  of  character ;  he  had 
availed  himself  of  his  opportunities  to  acquire 
the  rudiments  of  English ;  in  the  school  of 
manual  labor  he  had  obtained  a  sure  means 
of  support;  the  privilege  of  liberal  culture,  the 
result  of  his  own  toil,  he  had  appreciated  and 
utilized;  after  seven  years'  experience  as  an 
educator  of  young  men,  he  had  entered  mind 
and  soul  into  a  profession  held  in  esteem  by 
many  good  men.  His  habit  was,  like  Webster, 
first  to  reason  out  a  case  on  elementary  prin- 
ciples of  law  as  the  foundation,  and  then  to 
use  authority  or  precedent  in  framing  the  su- 
perstructure of  his  ;irgument.  The  reverse  of 
this,  which  is  so  nnich  in  vogue  in  the  prac- 
tice of  the  present  day,  that  is.  of  striving  for 
a  decision  primarily  upon  the  weight  of  au- 
thority, he  never  could  consider  the  true  or 
intellectual  method.  He  attributed  his  suc- 
cess to  work,  for  he  was  wont  to  say:  'What- 
ever talent  the  l;iwyer  may  possess,  he  can- 
not succeed  eminently  without  thorough  prep- 
aration.'    He   laid   great   stress   upon    integrity 


490 


History  of  the  Bench  and  Bar  of  California. 


in  the  practice;  for,  'ultimately.'  he  said,  'the 
more  conscientious  the  lawyer,  the  more  suc- 
cessful he  will  be.'  To  his  profession  he  paid 
this  glowing  tribute:  'As  a  class,  lawyers  are 
as  honorable  and  conscientious  as  scholars 
or  ministers  of  the  gospel ;  the  moral  courage 
they  exhibit  at  times  in  their  loyalty  to  clients, 
at  whatever  cost  or  sacrifice,  rises  to  the  sub- 
lime." " 

On  his  way  to  this  State.  Mr.  Merrill,  on 
the  isthmus,  became  acquainted  with  an  attor- 
ney from  Detroit,  John  McVickar.  On  arrival 
at  San  Francisco,  the  law  firm  of  Merrill  & 
McVickar  was  formed,  and  did  a  large  business 
until  Mr.  McVickar's  death,  in  1854.  xMr. 
Merrill  practiced  alone  for  about  five  years, 
and  then  had  a  few  years'  partnership  with  R. 
P.  Clement  and  Martin  White.  Since  this 
ended,  about  the  opening  of  the  year  1864, 
he  practiced  alone  and  quietly  for  a  few  years, 
and  gradually  closed  up  his  business. 

Mr.  Merrill  has  been  an  active  worker  in 
the  cause  of  temperance  all  his  life  since  the 
age  of  sixteen.  He  believes  that  women  should 
be  allowed  to  vote,  if  for  no  other  reason  than 
they  would  generally  vote  for  men  who  would 
enact  and  enforce  temperance  laws.  He  is  not 
severe,  hardly,  on  this  question,  but  practical 
and  charitable.  It  is  said  that  his  religion  has 
always  been  the  source  of  his  enthusiasm  in 
all  his  other  works.  He  has  been  a  stanch 
Methodist  since  boyhood.  To  the  Bible  he 
has  given  his  best  study.  For  more  than  thirty 
years  he  has  been  president  of  the  California 
Bible  Society. 

"To  the  work  of  secular  education."  to  quote 
once  more,  "he  has  been  not  less  devoted,  be- 
lieving that  knowledge  acquired  from  profane 
literature  is  not  only  valuable  on  account  of 
its  temporal  uses,  but  that  the  greater  the 
enlightenment  of  the  mind  the  clearer  its  com- 
prehension of  those  truths  whicli  appertain  to 
the  hereafter." 

We  have  referred  to  Mr.  Merrill's  continuing 
good  health  and  his  alertness  of  movement.  It 
is  his  daily  morning  practice,  begun  some  years 
ago,  to  ride  on  the  bicycle  for  many  miles. 
He  has  his  "wheel"  in  keeping  at  the  great 
park.  About  nine  o'clock  he  goes  thither  by 
street-car  and  there  mounts  his  vehicle,  rid- 
ing through  the  park  to  the  ocean,  and  soon 
returning  by  the  same  route  and  in  the  same 
way  to  his  home  on  Jackson  street,  near  Ma- 
son, having  traveled  about  four  miles  by  car 
and  about  double  that  distance  on  "wheel." 

Mr.   Merrill   married  at   Middletown,  Conn., 


in  early  manhood.  Miss  Harriet  Maria  Sage. 
It  would  be  taken  for  granted  that  he  is  a 
widower  now.  But  they  were  one  through  a 
long  stretch  of  time.  She  was  a  woman  alto- 
gether worth}'  of  such  a  man,  and  died  in 
1892.  at  the  age  of  75.  There  was  no  issue  of 
this  union. 


E.  W.  McKINSTRV 


This  eminent  juri.st  who  has  filled  so  large 
a  place  in  our  history,  came  to  California  in 
June,  1849,  and  as  late  as  1900,  just  before 
this  history  was  printed,  the  Society  of  Cali- 
fornia Pioneers  at  San  Francisco  made  him 
their  President.  We  observed  of  him  in  1888, 
when  his  period  on  the  Supreme  bench  about 
doubled  that  of  any  other  man,  that  he  had 
been  the  voice  of  the  court  in  the  adjudica- 
tion of  the  greatest  causes,  those  which  have 
involved  the  largest  pecuniary  interests,  and 
those  which  have  enlisted  the  passions  of  the 
people,  notable  among  which  were  the  local 
option  case  of  1874,  the  Kearney  habeas  cor- 
pus of  1878,  and  the  water  rights  case  of  1886. 
And  we  added  that  by  reason  of  length  of 
service  and  enduring  work,  he  had  made  a 
name  that  would  probably  live  longest  of  all 
on  the  shining  roll  of  our  judiciary. 

Our  pioneer  was  in  law  practice  at  Sacra- 
mento in  1850.  He  was  in  our  first  legisla- 
ture, representing  Sacramento  in  the  lower 
branch,  P.  B.  Cornwall  being  one  of  his  eight 
colleagues.  By  the  next  succeeding  legisla- 
ture he  was  elected  adjutant-general  at  the 
age  of  twenty-four  years. 

He  never  entered  on  the  duties  of  this  of- 
fice, as  the  legislature  failed  to  provide  a  sal- 
ary for  the  incumbent.  He  opened  a  law  office 
in  Napa,  early  in  1851.  He  was  elected  dis- 
trict judge  in  the  fall  of  1852,  for  the  district 
comprising  Napa  and  contiguous  counties,  and 
was  re-elected  in  September,  1858.  On  Novem- 
ber 13,  1862,  he  resigned.  In  1863  he  was  the 
Democratic  candidate  for  lieutenant-governor, 
and  was  defeated,  with  his  ticket.  He  went  to 
Washoe  in  the  flush  times,  and  in  1864,  he 
and  John  R.  McConncll  and  W.  C.  Wallace 
(not  W.  T.)  were  the  Democratic  nominees 
for  supreme  justices  of  the  state  of  Nevada, 
all  being  defeated.  Returnmg  to  California, 
and  locating  at  San  Francisco,  he  was,  in  Oc- 
tober, 1867,  elected  by  the  Democracy  county 
judge  for  a  term  of  four  years,  from  January 
I,  1868.  In  October,  1869,  he  was  elected 
judge  of  the  Twelfth  District  Court,  as  an  In- 
dependent  candidate,  over  the   regular   Demo- 


I 


E.    W,  McKinstry 


History  of  the  Bencli  and  Bar  of  California. 


493 


I 


cratic  nominee,  K.  R.  Provinos.  In  1873.  again 
as  an  Independent  candidate,  he  was  elected 
a  justice  of  the  Supreme  Court  over  Samuel 
H.  Dwinelle,  Republican.  On  September  3, 
1879,  under  the  new  constitution,  which, 
among  many  other  things,  reorganized  the  Su- 
preme Court,  lie  was  re-elected  a  justice  of 
that  tribunal,  and  under  the  classification  bj- 
lot,  which  the  constitution  directed,  he  and 
Hon.  J.  D.  Thornton  drew  the  longest  terms, 
eleven  vears  each. 

Judge  McKinstry  was  born  in  Detroit,  Micli- 
igan.  He  registered  as  a  voter  in  San  Fran- 
cisco, in  July,  1867,  as  being  then  forty-one 
years  old. 

Judge  McKinstry  wrote  the  majority-  opinion 
(4  to  3)  of  the  State  Supreme  Court  in  the 
great  water  rignts  case  of  Lux  vs.  Haggin,  in 
Mav  1885  ;  and  the  majority  opinion  of  that 
court  (also  4  to  3)  on  the  first  appeal,  in  the 
Sharon  case,  February  i,  1888.  He  resigned 
from  the  Supreme  bench  on  October  I,  1888,  to 
become  professor  of  municipal  law  in  the 
Hastings   Law   College. 

Since  1890  he  has  been  engaged  in  law  prac- 
tice. After  practicing  alone  for  some  years, 
his  son,  Mr.  James  C.  McKinstry,  became  his 
partner.  In  1896  these  gentlemen  united  with 
Hon.  John  A.  Stanly  and  H.  W.  Bradley, 
under  the  style  of  Stanly,  McKinstry,  Brad- 
ley &  McKinstry.  Since  Judge  Stanly's  death 
(September  22,  1899)  the  firm  has  been  Mc- 
Kinstry, Bradley  &  McKinstry. 

In  the  case  of  the  People  vs.  Charles  Fritch, 
where  the  defendant  had  been  convicted  in 
the  San  Francisco  Police  Court  of  keeping  a 
theater  open  on  Sunday,  contrary  to  the  statute 
then  existing,  and  which  case  was  brought  on 
appeal  before  Judge  McKinstry  while  he  was 
county  judge — that  jurist,  in  rendering  his  de- 
cision, made  the  following  remarks  : 

"I  confess  that  I  approach  the  question  pre- 
sented in  this  case  with  a  feeling  of  repug- 
nance to  such  legislation  as  tliat  upon  which 
tiiis  prosecution  is  founded.  Indeed,  if  the 
constitutionality  of  'Sunday  laws'  were  a  new 
question,  I  should  hesitate  to  sustain  them. 
Strictly  speaking,  no  form  of  religion  is  tol- 
erated in  California.  By  the  terms  of  the  con- 
stitution, 'The  free  exercise  and  enjoyment  of 
religious  profession  and  worship,  zeitliotit  dis- 
criiniihition  or  preference,  shall  forever  be  al- 
lowed.' It  is  the  alisolute  rigiit,  therefore, 
of  ever}'  citizen  to  worship  God  according  (o 
the  dictates  of  his  own  conscience,  and  to  keep 
holy  such  days  as  his  own  religion  may  sanc- 
tify; and  it  would  be  difficult  to  convince  an 
'orlliodo.\'    Jew,    for    example,    who    has    ab- 


stained from  secular  employment  on  Satur- 
day, that  a  law  which  compels  him  to  refrain 
froni  like  employment  on  Sunday  gives  no 
preference  to  other  forms  of  religion.  Cer- 
tainly, all  arguments  based  upon  the  supposed 
physical  benefits  derived  from  a  stated  day  of 
rest  would  have  little  application  or  ground 
for  enforcing  a  'Sunday  law'  upon  one  who 
has  taken  his  rest  on  the  preceding  day.  But 
there  are  some  propositions  which  should  never 
be  urged  in  an  inferior  court.  The  County 
Court  should  not  be  called  upon  to  consider 
as  doubtful  a  question  clearlv  determined  by 
the  iiighest  tribunal  of  the  State.  Were  I 
permitted  to  declare  as  law  my  own  crude 
notions  or  well  considered  opinions,  I  might 
feel  authorized  to  decide  that  the  constitu- 
tional provision  which  gives  to  this  court  ju- 
risdiction of  actions  of  'forcible  entry  and  de- 
tainer' does  not  empower  a  landlord  to  bring 
suit  here  against  a  tenant  who  peacefully  holds 
over  his  term ;  or.  that  congress  had  no  power 
to  make  the  paper  know^n  as  'greenbacks'  a 
legal  tender:  and  the  absurdity  of  such  iudg- 
ments,  in  the  teeth  of  the  decisions  of  the 
Supreme  Court,  would  be  sufficiently  apparent. 
My  duty  is  simply  to  obey  the  adjudications 
of  that  tribunal.  Were  an  inferior  judge  to 
substitute  for  these  his  personal  convictions  of 
what  the  law  ought  to  be.  this  would  be  not 
only  an  act  of  singular  audacity  in  itself,  but 
would  destroy  the  symmetry  of  our  judicial 
system,  and  introduce  confusion,  delay  and  in- 
creased expense  in  the  administration  of  jus- 
tice, and  bring  upon  his  head  the  deserved 
censure  of  the  court  of  last  resort,  whose 
opinion  he  has  treated  with  contempt.  The 
legislature  may  change  the  law;  the  Supreme 
Court  may  alter  its  opinion  as  to  the  proper 
construction  to  he  given  to  the  constitution  or 
to  a  statute  ;  the  County  Court  can  only  follow 
in  good  faith  the  judgments  of  the  appellate 
court. 

Again,  it  is  urged  that  as  the  Supreme  Court 
in  ex  parte  Xezonan  (g  Cal. )  held  the  law  of 
1858  to  be  unconstitutional,  both  that  and  the 
law  of  1855  ceased  to  exist  from  the  date  of 
that  decision ;  and  it  was  not  competent  for 
the  same  court  to  revive  them  by  a  subse- 
quent decision  reversing  the  former  one.  This 
is  a  misapprehension  of  the  function  of  ju- 
dicial tribunals.  Courts  never  repeal  laws, 
never  legislate.  They  are  organized  to  try 
cases,  and  in  passing  upon  an  issue  between 
individuals,  or  between  the  State  and  an  in- 
divi(lu;il.  a  court  only  inquires  what  is  the 
law.  To  say  that  because,  in  a  given  ca.se. 
the  Supreme  Court  declared  the  law  (Mie  way. 
it  is  forever  debarred  from  holding  the  law. 
applicable  to  the  same  or  similar  facts,  to  be 
otherwise,  would  be  to  demand  a  degree  of 
consistency,  wlnrli  ,1  glance  at  the  reports  will 
show  has  not  heretofore  been  deemed  neces- 
sary, and  nnght  be  considered  an  miwarranta- 
ble  interference  with  the  privileges  of  llio.se 
who  in  the  future  may  be  called  to  preside 
over  (he  paramount  tribunal.  The  Supreme 
Court,  in  short,  has  always  the  power  to  re- 
verse   every    previous    dcci'iion.    including    its 


494 


History  of  the  Bench  and  Bar  of  California. 


own;  the  last  judgment  of  the  court  being  the 
law  of  the  land." 

In  the  case  of  Frederick  R.  Lane,  indicted 
for  the  murder  of  Harvey  Swift  in  a  saloon 
on  the  Potrero  in  San  Francisco,  March  13, 
1872,  the  trouble  grew  out  of  a  dispute  about 
cards.  Lane  was  tried  before  Judge  McKin- 
slry  and  a  jury  in  the  old  Twelfth  District 
Court,  and  was  convicted  of  manslaughter. 
He  was  sentenced  on  December  30,  1872,  to 
a  term  of  five  and  a  half  years  in  the  state 
prison,  and  Judge  McKinstry  in  passing  sen- 
tence expressed  his  disapproval  of  the  law 
which  permitted  persons  accused  of  crime  to 
testify  in  their  own  behalf,  as,  he  said,  it 
placed  the  accused  in  a  wrong  position.  They 
feel  that  if  they  do  not  testify  it  will  be  con- 
strued against  them,  and  if  they  do  testify 
they  are  very  liable  to  exaggerate  or  to.  com- 
mit downright  perjury. 

1  he  Board  of  Supervisors  of  San  Francisco 
in  September,  1891,  called  for  the  opinion  of 
Judge  McKinstry  as  to  the  powers  of  the 
State  Board  of  Equalization  to  increase  the 
assessment-roll  of  the  city  for  city  purposes. 
Judge  McKinstry  filed  his  opinion  on  Septem- 
ber 18,  1891.  and  held  that  the  State  Board  had 
no  power  to  increase  the  assessment-roll  of 
San  Francisco,  so  as  to  affect  taxation  for 
city  and  county  purposes ;  and  that  the  city 
and  county  officers,  in  their  several  acts  lead- 
ing to  the  collection  of  taxes  for  city  and 
county  purposes,  must  be  guided  and  con- 
trolled by  the  assessment-roll,  unaffected  by 
any  increase  of  the  valuations  therein  by  the 
State  Board,  for  purposes  of  State  taxation. 

'j'liis  <)])iiiion  may  be  found  in  the  San  Fran- 
<:isco  Municipal  Reports  for  the  year  i890-'yi 
— in  tile  .Appendix,  at  page  181. 

Judge  McKinstry  was  educated  in  Michigan, 
Kinderhook.  N.  Y.,  and  Gambier  ( Kenyon 
College),  Ohio,  and  was  admitted  to  the  bar 
in  Xew  York  in  1847.  The  degree  of  LL.  D. 
was  conferred  on  liim  by  the  University  of 
Michigan. 

The  grandfailier  of  tlie  Judge.  General 
Charles  McKinstry,  of  Hillsdale,  was  an  offi- 
cer of  the  New  York  troops  in  the  Revolu- 
tionary War,  and  his  grand-uncle  was  a  col- 
onel in  the  same  war.  The  Judge  is  de- 
scended thront;li  liis  niotlier  from  Governor 
Bradford.  John  .\lden.  and  otlier  passengers 
of  the  Mayflower.  lie  is  a  member  of  the 
"Mayflower  Descendants."  of  the  "Colonial 
Governors."  and  of  the  "Society  of  Colonial 
Wars."     He    is    an    ex- President    of    the    San 


Francisco  branch  of  the  "Sons  of  the  Ameri- 
can Revolution." 

His  father.  Colonel  David  C.  McKinstry, 
was  a  pioneer  of  Michigan,  having  settled 
in  Detroit  as  early  as  1816.  He  was  long  a 
distinguished  citizen  of  the  northwest.  Of 
the  sons  of  Colonel  David  C,  other  tlian 
the  Judge,  Charles  became  a  well-known  and 
accomplished  lawyer  in  New  York  City ;  James 
P.  was  a  commodore  in  the  navy,  and  was 
des])erately  wounded  at  Port  Hudson ;  and 
Justus   became  a  general   in   the  army. 

Judge  McKinstry  was  united  in  marriage  to 
Miss  Annie  L.  Hedges,  at  Marysville,  Cal.,  on 
the  27th  of  July,  1863.  Mrs.  McKinstry  is  con- 
nected with  the  Schuyler,  Van  Rennselaer, 
Leon  Gardiner,  Livingston,  and  other  noted 
ante- Revolutionary  families. 

The  children  of  this  union,  besides  the 
Judge's  law  partner  already  named,  are  two 
daughters,  and  Captain  Charles  H.  McKinstry, 
of  the   U.    S.    Corps   of   Engineers. 

Judge  McKinstry  delivered  the  annual  ad- 
dress before  the  Society  of  Pioneers  at  San 
Francisco  in  September,  187 1.  and  the  address 
at  the  Jubilee  Celebration  at  San  Jose,  on 
December   20,    1899. 


NILES   SEARLS. 


The  chief  justice  of  the  California  Supreme 
Court  for  the  years  i887-'88  was  born  in  Al- 
bany county.  New  York,  December  22d,  1825. 
His  father  was  a  farmer  in  easy  circum- 
stances, and  of  pure  English  extraction.  His 
mother  was  a  Miss  Niles,  of  a  well-known 
family  in  his  native  county,  the  Nileses  being 
of  Scotcli  descent,  .\bram  Searls,  the  father 
of  Xiles  Searls,  removed  from  New  York  to 
Prince  Edward  District,  Canada,  where  he 
purchased  land  and  settled  with  his  family. 
Niles  Searls  attended  school  in  Canada,  mainly 
at  Wellington,  in  Prince  Edward's  county. 
.After  five  years'  study,  his  father  sent  him, 
at  his  own  recjnest,  back  to  his  native  county 
in  New  \'ork,  where  he  attended  the  Renn- 
selaerville  Academy  for  three  years.  He  then 
entered  the  law  office  of  O.  H.  Chittenden  of 
Rennselaerville,  where  he  remained  one  year 
I)re])aring  himself  for  the  profession.  Just 
at  that  lime  JoJm  W.  Fowler,  a  noted  lawyer 
and  orator,  established  at  Cherry  Valley.  New 
York,  the  State  and  National  Law  School,  an 
institution  which  for  many  years  cut  a  con- 
spicuous figure  in  legal  annals.  Some  of  the 
liest   minds  of  the  California  bar  were  trained 


History  of  the  Bench   and  Bar  of  California. 


49; 


at  this  school.  Among  Mr.  Searls"  fellows 
were  Hon.  Chancellor  Hartson.  and  ex-Lieu- 
tenant Governor  Machin.  Judge  Silas  W.  San- 
derson and  the  late  Judge  Brockway  after- 
wards attended  the  same  school.  Mr.  Searls 
was  graduated  from  this  institution  after  two 
years'  study.  His  old  schoolmates  speak  of 
him  as  having  been  an  indefatigable  student 
and  one  of  the  brightest  minds  of  their  class. 
He  excelled  in  mathematics  and  scientific 
branches  of  study,  and  was  an  onmivorous 
reader.  He  was  admitted  to  the  bar  of  the 
Supreme  Court  of  the  state  of  New  York, 
May  2d,  u^-i8,  and  went  traveling  through 
Kentucky,  Illinois  and  Missouri,  practicing  a 
short  time  in  the  latter  state.  He  arrived  in 
California  in  October,  1849,  and  located  at 
Nevada  City. 

Judge  Searls  had  been  in  Nevada  only  five 
days  when  he  foitnd  himself  a  candidate  for 
alcalde.  But  he  was  defeated  by  ten  votes 
of  several  thousand  cast. 

In  1852  Mr.  Searls  was  elected  district  at- 
torney of  Nevada  county.  In  1855  he  was 
elected,  on  the  American  or  Knownothing 
ticket,  district  judge  of  the  Fourteenth  Judicial 
district,  comprising  the  counties  of  Sierra, 
Nevada,  and  Plumas,  and  served  a  full  term 
of  six  years.  He  was  renominatetl  by  the 
Democrats,  and  was  defeated  by  Hon.  T.  B. 
McFarland,  now  an  associate  justice  of  the 
Supreme  Court.  In  1864  he  closed  his  law- 
business  and  went  back  to  New  York,  where 
he  followed  the  life  of  a  farmer  for  six 
years.  In  1870  he  returned  to  his  old  moun- 
tain home  in  California,  and  resumed  the 
])ractice  of  his  profession.  In  1877  he  was 
elected  to  the  State  senate  on  the  Demo- 
cratic ticket,  and  served  for  one  session,  his 
official  term  l)cing  abridged  by  the  new  con- 
stitution. .\  political  foeman  to  Governor 
Perkins,  he  was  yet  appointed  by  the  Ciovernor 
a  niend)er  of  the  Debris  Commission,  and  was 
President  of  the  board  when  the  act  creating 
it    was    declared    nnconstitulion;il.    in    1S80. 

In  the  spring  of  1885  Judge  Searls  was  ap- 
pointed by  the  Supreme  Court  one  of  the  three 
Supreme  Court  Conunissioners.  under  ;in  act 
of  the  legislature  then  recently  .-ii)provr(l.  I  lii> 
commission  was  an  auxiliary  court  in  iiiieiu 
and  effect,  and  was  cre.-iled  on  account  ot  tlie 
accumulation  of  business  in  our  liigheNl  tribu- 
nal, threatening  to  block  its  action.  The  Jitdge 
had  labored  most  efficicinly  for  two  years  on 
this  conimisNion.  when,  on  .\]iril  m.  1887.  he 
accepted    from    ( iovernor    li.irtlett    llie    ai)|)oint 


ment  of  chief  justice  of  the  Supreme  Court, 
made  vacant  by  the  death  of  Hon.  Robert  F. 
Morrison. 

He  served  until  the  close  of  1888,  being  de- 
feated for  chief  justice  at  the  election  in  No- 
vember, 1888,  by  W.  H.  Beatty,  Republican. 
He  was  again  a  Supreme  Court  Commissioner 
for  the  years  1894-97.  He  is  now  residing  at 
his  old   home   m   Nevada   City. 

Judge  Searls  married,  in  his  native  county, 
in  185,^.  Miss  Mary  C.  Niles,  sister  of  his  lasL 
law  partner,  .\ddison  C.  Niles,  who  was  a 
jitdge  of  the  Supreme  Court,  i872-'79.  He  has 
two  children,  sons,  one  of  them  a  lawj'er, 
Fred  Searls,  associated  with  him  profession- 
ally, and  the  other  a  mechanical  engineer. 


WALTER  VAN  DYKE. 

The  long  and  honorable  career  of  this  pio- 
neer in  the  judicial  and  political  history  of  the 
State  is  being  crowned  by  a  term  on  the 
Supreme  Bench.  Judge  Van  Dyke  was  born 
at  Tyre,  Seneca  county.  New  York.  October 
3,  1823.  He  comes  from  a  family  of  old 
Knickerbocker  stock,  closely  related  to  the 
Dutch  families,  which  have  so  long  been  fa- 
mous in  the  Empire  State.  Judge  Van  Dyke's 
father  was  a  farmer,  and  died  when  the  son 
was  thirteen  years  of  age.  The  latter  at- 
tended the  district  school,  and  at  the  age  of 
seventeen  entered  a  select  school  at  Earl- 
ville,  Madison  county.  This  was  followed  by 
a  course  at  the  Liberal  Institute  in  Clinton, 
Oneida  coitnty.  His  studies  were  frequently 
broken  by  iiiti'rvals  of  teaching  school,  to 
wliich  he  had  to  resort  to  enable  him  to  seciu"e 
the  means  to  pert'ect  his  education.  In  i84(). 
at  the  age  of  twemy-three,  he  went  to  Cleve- 
land, Ohio,  where  he  pursued  the  study  of  law 
diligently  for  two  years.  L^pon  his  admission 
to  the  bar  of  the  Sui)reme  Court  of  that  state, 
wliich  occurred  in  .August.  184S,  he  entered 
itpon  the  pr.'iclice  al  Cleveland.  In  the  spring 
of  i84()  he  started  for  California,  coming 
across  the  jjlains  as  one  of  ;ni  organized  com- 
pany of  fourteen  ymmg  men.  C)n  the  long 
journey  he  wru'e  .'i  record  of  tlie  experiences 
oj'  lus  conip.iny.  ,tnil  espi-ei.illy  of  his  own  ob- 
serxations  of  n.itnr.il  scener\-.  ami  sent  let- 
ters to  ;i  Cle\eland  new  sp.ipi-r.  which  were 
ri-ad  with  wide  iiiteiesl.  In  one  of  these 
letters,  written  while  the  company  was  in 
I'l.ih,  he  (lescrihid  w  li.it  lie  considered  to  be 
tln'  most  .iwiilable  route  for  .1  trans-conti- 
nental   r;ii1r.i;i(l.       The    line    of   the    I'nion    Pa- 


496 


History  of  the  Bench  and  Bar  of  California. 


cific  Railway,  some  twenty  years  later,  closely 
followed  the  route  which  he  suggested.   From 
Salt  Lake  the  company  turned  in  a  southerly 
direction,    and   arrived   in    Los   Angeles.    Cal.. 
in  January,  1850.  A  few  weeks  later  Mr.  Van 
Dyke  was  in  San  Francisco.     The  first  spring 
and    summer   were   passed    in   the   mining   re- 
gions, after  which   he   returned  to   San   Fran- 
cisco.     A   company    was   being   formed   bound 
for    the    mouth    of    the    Klamath    River,    with 
the  object  of  laying  out  a  town   site  and  es- 
tablishing a  base  of  supplies  for  the  mines  in 
the  extreme   northerly   part   of   the    State.    He 
joined  this  company,  and  they  passed  through 
the  Golden  Gate  in  a  little  vessel,  which  was 
wrecked  just  as  the  party  reached  their  goal, 
in    attempting    to    enter    the    Klamath    River. 
However,    with    the    aid    of    friendly    Indians 
they    all    reached    shore.      Separating    himself 
from    the    town    site    scheme.    Mr.    Van    Dyke 
settled  at  the  town  of  Trinidad,  a   short   dis- 
tance   down    the    coast.      Upon    the    organiza- 
tion   of    Klamath    county,    in    the    spring    of 
1851.  he  was  elected  district  attorney.     At  the 
election  of  1852  he  was  elected  to  the  assem- 
bly,   and    was    a    member    of    the    legislature 
which    opened    at    Vallejo    and    removed    to 
Benicia    in    1853.      About    this    period    it    was 
owing  mainly  to  his   efforts  that   Fort   Hum- 
boldt was  established  and  garrisoned  by  gov- 
ernment    troops,     to     secure     the     settlement 
against   the   Indians.     The  first   garrison   con- 
sisted of  three  companies,  U.   S.  Grant  being 
one  of  the  captains.     Humboldt  county  being 
organized    in    1853,    the    young    attorney    re- 
moved  to  that   county.     He   was   one   of   the 
commissioners    to    adjust    the    debt    between 
Humboldt   and   Trinity   counties.     In    1854   he 
was    elected    district    attorney    of    Humboldt 
county.      For    some    years    following,    wliile 
pursuing  his  law  practice,  he  edited  the  Hum- 
boldt Ti)iics,  the  leading  paper  in  that  section. 
In    the    fall    of    1861    Mr.    Van    Dyke    was 
elected  to  the  senate  of  the  State,  and  served 
at  the  sessions  of  1862  and  1863.   At  the  ses- 
sion of  1862.  the  Civil  War  having  just  broken 
out    the   year   before.    Senator   Van    Dyke   of- 
fered  resolutions   in   favor   of  the   firm   main- 
tenance of  the  Union.     Three  sets  of  partisan 
resolutions    were    already    before    that    body ; 
but   Senator  Van   Dyke   offered   his  as   a   sub- 
stitute    for    the     whole,     which     was    adopted 
without  alteration.  April  4th.  1862.   (See  Stat- 
utes of  1862.  page  608.)     In  the  course  of  de- 
bate a   senator  inquired   who   had   offered   the 
substitute  resolutions.     Senator  Van  Dvke  re- 


sponded, "The  Union  Part}'."  The  Union 
party  was  about  to  take  control  of  the  State, 
and  continue  in  authority  for  some  years,  but 
it  was  not  yet  born,  and  this  was  the  first 
time  the  words  had  been  used.  A  few  days 
after  a  Union  party  caucus  was  organized 
witli  Senator  Van  Dyke  as  chairman.  It  was 
resolved  to  issue  a  call  for  a  state  convention, 
but  the  Republican  State  Central  Committee 
issued  its  own  call  just  then,  for  a  state  con- 
vention to  meet  in  June,  1862.  This  latter  was 
addressed  not  to  Republicans  specifically,  but 
to  "All  who  were  in  favor  of  sustaining  the 
present  national  administration  and  maintain- 
ing the  Constitution  of  the  United  States,  and 
preserving  the  Union  entire."  Upon  the  ad- 
vice of  Senator  Van  Dyke,  the  members  of  the 
new  party  caucus,  and  those  in  sympathy 
with  them  throughout  the  State,  abandoned 
their  proposed  separate  movement.  When 
the  Republican  convention  met  at  Sacramento. 
Senator  Van  Dyke  was  a  member,  and  was 
unanimously  elected  permanent  President ;  and 
so  the  new  party  came  into  existence,  and  the 
title,  "Father  of  the  LTnion  Party  in  Califor- 
nia," was  awarded,  with  common  consent  of 
press  and  people,  to  the  President  of  the  con- 
vention. 

At  the  close  of  his  senatorial  term,  Mr.  Van 
Dyke  removed  to  San  Francisco.  He  prac- 
ticed law  there  with  unbroken  success  from 
1863  to  1884.  In  the  3^ear  1874  he  became 
United  States  attorney  for  California  by  ap- 
pointment of  President  Grant,  and  held  the 
office  three  years,  when  he  resigned.  There- 
after the  government  signalized  its  confidence 
in  his  ability  by  retaining  him  in  some  Span- 
ish "-rant  cases  in  the  United  States  Supreme 
Court,  which  had  been  commenced  in  the  Cir- 
cuit   Court    while   he   was   in   office. 

In  1878  he  was  elected  as  a  delegate-at- 
large  to  the  constitutional  convention,  on  a 
non-partisan  ticket.  He  was  an  active  mem- 
ber of  that  body,  and  chairman  of  the  com- 
mittee on  Article  I,  Declaration  of  Rights. 
This  committee  reported  in  favor  of  making 
a  very  imiiortant  modification,  regarding  the 
grand  jury  system.  Mr.  \^an  Dyke  argued 
that  the  grand  jury,  having  lost  its  original 
purpose  as  a  safe-guard  from  prosecutions  by 
government  officers,  the  reason  for  its  contin- 
uance no  longer  remained;  and,  further,  that 
tlie  grand  jury  in  later  years  had  very  often 
been  used  in  behalf  of  persons  actuated  by 
tn.ilice  against  others,  by  creeping  into  the 
grand  jury  room,  and.  on  ex  parte  testimony, 
and    in    secret,    procure    them    to    be    indicted. 


Walier  Van  Dyke 


History  of  the  Bench  mid  Bar  of  California. 


499 


altliougb-    iimoccnl   of   crime.      Mc    fax'orod    in 
stead,  prosecutions  by  information,  tiled  l)y  tlu- 
district    attorney,    after    a    preliminary    public 
examination   before   a   magistrate. 

The  result  reached  by  the  convention  was 
a  compromise.  It  was  provided  that  prosecu- 
tiotis  for  crime  should  be  either  by  indict- 
ment or  by  information,  after  examination  and 
commitment. 

I'he  remarkable  effect  has  been  that  a  great 
majority  of  cases  are  now  prosecuted  without 
indictment,  but  upon  information  filed  by  the 
district  attorney  after  examination  before  a 
magistrate,  the  duties  of  the  grand  jury  now 
being  practically  limited  to  the  examination  of 
books  and  accounts  of  public  officers. 

Another  noteworthy  proposition  of  this  gen- 
tleman was  to  embody  in  the  article  on  edu- 
cation the  substance  of  the  act  creating  th.- 
State  University,  with  the  view  of  withdraw- 
ing that  great  institution  from  party  politics 
and  legislative  interference,  or  (to  ((note) 
that  "its  organization  and  government  shall 
be  perpetually  continued  in  the  form  and  char- 
acter prescribed  in  tlie  organic  act."  .This 
proposition  was  incorporated  into  the  new 
Constitution,  but  not  until  after  long  and  se- 
vere debate.  Its  wisdom  is  generally  ac- 
knowledged in  the  light  of  the  later  history  of 
the  university. 

This  judicious  and  practical  member  also 
opposed  the  creation  of  the  railroad  commis- 
sion in  its  present  form.  He  objected  to  en- 
dowing it  with  all  the  governmental  powers 
— legislative,  executive  and  judicial — and  so 
making  it  independent,  practically,  of  State 
control.  He  predicted  that  the  connnission 
would  be  more  often  instrumental  in  carrying 
out  the  policy  of  the  railways  than  that  of  the 
I)eoi)le. 

Our  subject  followed  his  profession  indus- 
triously for  some  sixteen  years  after  this  i)e- 
riod.  He  removed  to  Los  Angeles  in  1885, 
where,  as  a  member  of  a  leading  law  firm,  he 
was  at  the  bar  for  about  three  years.  He  was 
then  elected  a  judge  of  the  Superior  Court  of 
that  county  for  a  full  term  "f  six  years.  In 
1894  he  was  re-elected  for  a  full  lirui  by  ;in 
increased  majoritj'.  In  i8(jS,  wliiK'  on  the  Su- 
perior bench,  he  was  nominated  for  the  ol'tici' 
of  Su])renie  Judge — fii  si  by  the  .SiKcr  l\ei)iib- 
licans,  and  endorsed  by  the  DtMUocrals  and 
the  Populists.  The  regular  Kei)ublicans  cai' 
ried  the  State,  i)Ut  elected  only  one  of  tluir 
two  candidates  for  Su|)reme  judge.  Judgi- 
\'an    Dvke    was    chosen    bv    a    vote    exceeding 


that  of  any  otlier  candidate,  receiving  over 
9,000  votes  more  than  the  defeated  Repub- 
lican candidate,  and  over  4,000  votes  more 
than   the   successful    Republican  candidate. 

He  entered  upon  the  duties  of  a  justice  of 
the  Supreme  Court  at  the  opening  of  the  Jan- 
uary term.  1899,  at  the  age  of  seventy-Hve. 
The  term  of  office  is  twelve  years,  and  that 
he  will  serve  to  its  close  with  unimpaired 
powers  of  mind  and  body  is  altogether  prob- 
able. He  is  a  man  under  the  average  stature, 
is  very  alert  in  his  movements,  and  has  al- 
ways been  of  the  most  temperate  habits  of 
life.  He  is  a  life  member  of  the  Society  of 
California  Pioneers,  As  a  judge  there  are  few 
men  who  have  ever  held  a  higher  place  in  the 
affections  of  the  people.  His  character  may 
be  seen  in  his  own  words:  "As  long  as  God 
gives  me  breath,  the  luillionaire  and  the  man 
in  rags  shall  alike  receive  justice  from  me 
eitlier   in   ])rivate  or  ])ul)lic   life." 


A.  P.  CATLIN. 

A.  P.  Catlin  was  born  at  Tivoli,  Dutchess 
county.  New  \'ork,  in  January,  1823.  Thomas 
Catlin,  first  of  the  name  known  in  America. 
came  from  the  County  of  Kent.  England,  in 
1643,  and  settled  in  Hartford,  Connecticut. 
His  posterity  for  five  generations,  including 
Pierce  Catlin,  father  of  A,  P„  were  born  in 
Connecticut.  David,  A.  P.  Catlin's  grand- 
father was  a  captain  in  the  Connecticut  mili- 
tia, and  was  in  the  action  in  which  General 
Wooster  was  killed— the  attack  by  the  British 
(k'neral,  Tryon,  on  the  town  of  Danbury.  He 
died  at  the  age  of  ninety-three.  His  son. 
Pierce  Catlin,  was  a  school  teacher,  then  a 
wagonmaker.  afterwards  a  farmer.  He  died. 
aged  eighty-four.  A.  P.  Catlin's  ancestors  on 
ins  mother's  side  were  Germans,  The  first  of 
Ibe  line  c.ime  to  America  and  settled  in 
Diiichess  county.  New  'S'ork.  .\pril.  A.  D. 
1700. 

A.  P.  Catlin  graduated  ;it  Kingston  acad- 
emy, lister  county.  New  York,  in  1840.  He 
studied  l.iw  in  Kingston  three  :ind  a  half 
years,  in  the  ollice  of  b'or.syth  &  I.inderman, 
botli  of  whom  were  distinguished  lawyers  of 
e.isiern  .\e\\  ^drk,  and  was  admitted  to  the 
b.ir  of  the  Supreme  (."oiirt  of  New  York  at 
Alli.iiiy.  on  ilu'  ijih  of  January,  1844;  and  to 
I  be  old  (onri  of  CJi;iiicery  as  a  solicitor  on 
'lif  i'''b  of  the  same  month.  He  pr.icliced 
■  ilioni  l.>iir  years  in  I'Ister  county,  where 
he    fre(|uenlly    met    as    antagonists,    in    forcn- 


500 


History  of  the  Bench  and  Bar  of  California. 


sic  battle.  John  Currey,  afterwards  chief  jus- 
tice of  our  Supreme  Court;  William  Ful- 
lerton.  the  Judge  Fullerton  afterward  dis- 
tinguished as  counsel  in  the  Beecher  trial ; 
T.  R.  Westbrook,  later  one  of  the  judges 
of  the  Supreme  Court  of  New  York ;  and  other 
young  attorneys  who  afterwards  made  their 
mark  in  the  Empire  State.  In  the  spring  of 
1848  he  removed  to  the  City  of  New  York, 
and  formed  a  partnership  with  George  Catlin. 

On  the  8th  of  January,  1849,  he  sailed  for 
San  Francisco,  arriving  in  that  port  on  the 
8th  of  the  following  July.  In  the  brief  so- 
journ of  a  month  he  witnessed  the  organiza- 
tion of  the  first  vigilance  committee,  the  for- 
mation of  the  Revolutionary  Court  that  tried 
the  ■"Hounds,"  their  trial,  and  concurrent 
scenes.  That  court  was  constituted  of  Dr. 
William  M.  Gwin,  James  T.  Ward,  and  Thad- 
deus  M.  Leavenworth.  The  first  two  were 
elected  by  the  acclamation  of  a  crowd  of  citi- 
zens on  Portsmouth  Square,  to  sit  with  Leav- 
enworth, who  was  the  alcalde  and  the  only 
lawful  authority.  The  alcalde  at  first  re- 
fused to  recognize  his  associates  in  any  ca- 
pacity other  than  as  mere  amici  curiae.  Dr. 
Gwin  declined  to  act  unless  he  and  his  asso- 
ciate, Ward,  were  acknowledged  as  of  equal 
authority  with  the  alcalde.  The  latter  func- 
tionary was  compelled  by  the  open  threats 
of  the  excited  citizens,  who  suspected  him  of 
partiality  to  the  "Hounds,"  to  yield  the  point. 
Some  ten  or  twelve  of  the  defendants  were 
convicted  and  sentenced  to  imprisonment  for 
various  terms,  the  highest  being  fourteen 
years. 

Mr.  Catlin  reached  the  mines  in  the  vi- 
cinity of  Mormon  Island,  Sacramento  county, 
in  August,  1849.  He  passed  the  following 
winter  there,  engaged  in  mining  and  practicing 
law  before  Duncan,  the  alcalde  of  that  district. 
Upon  his  arrival  he  found  that  office  held 
by  a  son  of  Esek  Cowen.  who  was  formerly 
one  of  the  justices  of  the  Supreme  Court  of 
New  York,  and  who  wrote  the  useful  treatise 
upon  Justices'  Courts.  Upon  the  resignation 
of  young  Cowen.  Duncan  was  appointed  by 
Judge  Thomas,  judge  of  first  instance,  and  his 
authority  was  recognized  as  absolute  in  all 
cases  by  a  large  population,  and  over  an  ex- 
tended territory  without  limit  of  jurisdiction 
as  to  value  or  character  of  property  involved, 
until  the  legislature,  in  April,  1850,  provided 
for  justices  of  the  peace.  Returning  to  Sac- 
ramento in  May,  1850,  Mr.  Catlin  there  met 
John  Currey.     They  immediately  formed  a  co- 


partnership, and  opened  a  law  office.  Among 
the  leaders  of  the  Sacramento  bar  at  this  time 
were  Murray  Morrison,  E.  J.  C.  Kewen,  Col- 
onel Zabriskie,  Joseph  W.  Winans,  J.  Neely 
Johnson,  John  B.  Weller,  M.  S.  Latham,  John 
H.  McKune,  and  Philip  L.  Edwards.  This 
partnership  continued  only  for  a  short  time. 
The  climate  prostrated  Mr.  Currey,  who  soon 
retired  to   San   Francisco. 

Mr.  Catlin  witnessed  the  squatter  riots  and 
the  conflict  on  the  corner  of  Fourth  and  J 
streets,  between  the  authorities  of  Sacramento 
City  and  the  rioters,  on  the  14th  of  August, 
1850.  On  that  day  Woodland,  the  city  as- 
sessor, was  killed,  and  Biglow,  the  mayor, 
was  mortally  wounded.  Others  were  killed 
in  the  same  fight,  among  them  Maloney,  the 
leader  of  the  squatters.  Dr.  Charles  Robin- 
son, who  afterwards  became  Governor  of 
Kansas,  was  severely  wounded.  On  the  fol- 
lowing day,  in  a  continuation  of  the  same 
fight,  a  few  miles  out  of  the  city,  McKinney, 
the  sheriff  of  the  countv,  and  several  others 
were  killled.  The  excitement  was  great,  and 
the  city  authorities,  fearing  an  assault  from 
the  friends  of  the  rioters,  who  were  supposed 
to  be  gathering  in  the  country  and  mining 
sections  for  that  purpose,  made  their  situation 
known  to  the  authorities  at  San  Francisco. 
John  W.  Geary,  then  mayor  of  the  last  named 
city  (afterwards  Governor  of  Pennsylvania, 
and  major  general  in  the  Union  army),  came 
to  their  assistance  with  two  San  Francisco 
military  companies,  one  of  them  commanded 
by  Captain  W.  D.  M.  Howard.  It  soon  proved 
tliat  the  assistance  was  not  needed,  and  that 
rumors  operating  upon  an  excited  and  terrified 
populace,  had  greatly  exaggerated  the  sup- 
posed  dangers. 

Late  in  the  fall  of  1850  Mr.  Catlin  closed 
his  law  office  in  Sacramento  and  returned  to 
Mormon  Island,  being  employed  to  settle  the 
affairs  of  the  Connecticut  Mining  and  Trad- 
ing Company,  which  was  the  successor  in 
interest  of  the  famous  store  of  Samuel  Bran- 
nan,  and  to  attend  to  the  mining  interests 
which  he  had  acquired  in  that  vicinity  in  the 
summer  of  1849,  and  winter  of  '49-'50.  Just 
then  William  L.  Goggin,  the  agent  of  the 
Postoffice  Department  for  this  coast,  visited 
Mormon  Island  for  the  purpose  of  estab- 
lishing a  postoffice  there.  He  requested  Mr. 
Catlin  to  furnish  a  name  for  the  office.  Mr. 
Catlin  had  already  formed  the  "Natoma" 
Mining  Company,  adopting  that  name  from 
the    Indian    dialect,    it    signifying    "clear    wa- 


A.  T,  Catlin 


History  of  the  Bcncli  and  Bar  of  California. 


503 


ter,"  and  a  tradition  that  such  had  been  the 
name  by  which  that  locality  had  furnicrly 
been  known  anmng  \\\v  Indians.  Goggin 
adopted  ihc  name,  and  that  .^eciion  of  Sac- 
ramento county  was  officially  named  "Xatonia 
township." 

Mr.  Catlin  was  always  a  Whig,  as  lung  as 
there  was  a  renmant  of  the  old  parly.  He  was 
placed  on  the  Whig  ticket  as  a  nominee  for 
the  assembly  in  1851,  and  was,  with  the  whole 
ticket,  defeated.  In  the  following  year  he 
was  nominated  for  Stale  senator,  and  was 
elected.  He  introduced  a  homestead  bill,  the 
same  as  that  which  afterwards  became  law. 
but  which  was  then,  after  a  hot  contest,  de- 
feated by  the  casting  vote  of  the  lieutenant 
governor.  His  own  constituents  of  Sacra- 
mento were  faithfully  served  in  much  needed 
local  legislation,  and  in  the  important  mat- 
ter of  the  State  Capitol.  He  was  the  author 
of  the  law  making  Sacramento  the  permanent 
seat  of  government  of  the  State. 

At  this  session,  and  while  the  legislature 
was  yet  at  Benicia,  occurred  one  of  the  mo.-,i 
remarkable  trials  on  record,  though  very  little 
record  of  it  remains.  A  prolonged  and  de- 
termined effort  was  made  to  elect  David  C. 
Broderick,  Northern  Democrat,  United  States 
senator.  It  was  claimed  by  the  Whigs,  of 
whom  there  were  seven  in  the  senate,  and  by 
the  supporters  of  Dr.  Gwin,  Southern  Demo- 
crat, that  as  the  term  for  which  J^roderick 
was  a  candidate  did  not  connnence  until  after 
the  next  session  of  the  legislature,  it  would 
be  an  unconstitutional  act  to  elect  at  that  time, 
and  so  take  tlu-  election  from  the  body  to 
which  it  rightfully  belongi'd.  This  argiuucnt 
had  no  weight  with  the  supporters  of  Brod- 
erick, who  had  a  large  majority  of  friends  in 
the  assembly,  but,  as  it  turned  out.  only  one- 
half  of  the  senate.  At  that  time  the  legisla- 
ture could  be  called  immediately  mU)  joint 
convention  by  a  concurrent  resolution.  llie 
struggle,  therefore,  was  to  put  .such  a  resolu 
lion  through  the  senate.  Broderick's  election 
would,  at  any  time  during  the  session,  b.ive 
resulted  in  twenty-four  hours  after  llu'  .idop 
tion  of  such  a  resohuion  b\-  the  sen.iie.  I  lie 
forces  upon  this  (piestioii  siood  so  e\enl\-  di 
vided  in  tiie  si'n;ili'  that  I'.rodeiiek  ijicked 
but  one  \n\v.  and  this  ii  was  jmpossibK'  to 
obtain.  The  contest  conliniu'd  through  the 
greater  part  of  the  session.  ,ind  the  utmost  vig- 
ilance was  required  on  tin-  part  of  those  who 
opposed  the  election.  I'lu-re  were  exceed- 
ingly  few   of   the   senators    whose    tirmncss   on 


either  side  of  the  question  could  be  doubled. 
1  he  ])osition  of  each  one  of  ihem  was  made 
known  by  more  than  one  test  vote.  The  situa- 
tion was  such  that  if  any  one  of  them  had, 
in  his  own  conscience,  been  ct)nvinced  that  it 
was  his  duly  to  change,  it  would  have  worked 
his  political  ruin  to  follow  his  conscience. 

Peck,  one  of  those  who  had  steadily  voted 
against  going  into  joint  convention,  was  sen- 
ator from  Butte  county,  a  country  merchant, 
of  little  experience  in  public  affairs.  .-\l  one 
of  the  most  critical  periods  of  the  senatorial 
contest,  Senator  Peck  arose  to  a  question  of 
privilege.  He  charged  that  Joseph  C.  Palmer, 
who  was  the  head  of  the  most  important 
banking  institution  in  San  Francisco,  and  an 
active  friend  of  Broderick,  had  attempted  to 
bribe  him  with  an  offer  of  $5,000  to  vote  in 
favor  of  going  into  joint  convention  to  elect 
a  United  States  senator.  A  resolution  fol- 
lowed, summoning  Palmer  to  answer  for  a 
breach  of  the  privileges  of  the  senate,  and  or- 
dering his  arrest.  A  day  was  fixed  to  hear 
the  matter,  (ieneral  Charles  H.  S.  Williams, 
one  of  the  ablest  lawyers  ever  in  this  State, 
was  retained  as  Palmer's  counsel,  and  Colo- 
nel Ii.  1).  I'aker  was  engaged  by  the  friends  of 
Peck. 

It  was  evident  that  a  mighty  struggle  was 
to  take  pl.'ice  when  such  giants  took  the  field. 
Peck's  statement  was  made  on  the  Kjtli  oi 
Jamiarw  and  the  trial  was  concluded  on  the 
3(1  of  l'"ebruary.  A  large  number  of  witnesses 
were  examined.  Palmer  escaped  through  a 
single  dexterous  movement  of  his  counsel.  It 
had  ln'i-n  informally  agreed  by  all  the  senators 
who  were  political  deb.aters.  that  they  would 
pel-mil  the  trial  to  proceed  wiliiout  mlerfer(.'nC'- 
on  their  part,  except  to  \iite  upon  ([Uestions 
.IS  iliey  .arose,  without  debate,  and  that  tiiev 
should  act  the  pari  of  decorous  and  impartial 
jttdges.  Colonel  !?aker,  an  orator  of  profound 
ilioi'ghi  and  of  more  eloipieiit  expression  tiian 
an\  ot  his  d;iy  and  gi'iieial  ion.  was  yel  no 
ni.aleh  for  1  leiieral  Willi.inis  in  the  m.an.ige- 
nieiii  and  conduct  of  ;i  trial.  When  all  was 
reail_\  and  ihe  senators  li.id  settled  in  liieir 
stats  and  diilx  piii  on  ihe  ;iir  of  judges. 
Palmer  w.is  e.illed  lo  ilie  bar.  .\s  the  ac- 
riis.il  appid.iehed  the  secretary's  l.able.  Cien- 
er.il  Williams  reipie->le(l.  in  ;i  (ptiel  ,ind  mailer 
of  f.icl  w;iy.  tli.il  be  be  sworn.  I'lu-  secret.iry 
administered  the  o.ath.  no  objection  coming 
from  any  quarter.  Palmer  innnedi.itely  i>ro- 
ceeded  to  relate  his  story,  and  proceeded  but 
a    few    moments    when    it    was    clearlv    niani- 


504 


History  of  the  Bench  and  Bar  of  California. 


fested  lo  the  sense  of  every  one  present  that 
the  act  of  allowing  Palmer  to  be  put  on  the 
stand  as  a  sworn  witness  was  a  grave  over- 
sight. But  it  was  then  too  late  to  repair  the 
error.  Palmer  swore  that  he  met  Senator 
Peck  on  tlie  steamer  at  the  time  stated  by 
Peck,  and  that  the  latter  had  in  explicit  terms 
proposed  to  him  (Palmer)  to  vote  for  Brod- 
erick  if  he  (Palmer)  would  give  him  $5,000. 
which  proposition  he  (Palmer)  courteously 
declined,   and  that   was  all   there  was  of  it. 

Thus  the  character  of  the  investigation  was 
at  once  changed.  Palmer  became  the  accuser 
of  Peck,  and  was  on  the  stand  as  a  sworn  wit- 
ness in  support  of  his  charge.  This  was  be- 
fore the  law  permitted  a  party  to  be  a  witness 
in  his  own  behalf  in  either  a  criminal  or  a  civil 
case.  Peck  had  made  his  statement  upon  honor 
as  a  senator,  and  in  no  sense  as  a  witness,  ex- 
cept in  so  far  as  his  constittitional  oath  of  of- 
fice bound  him  to  speak  the  truth.  He  was  not 
required  to  be  sworn  as  a  witness.  He  was 
a  poor,  obscure,  uninfluential,  and  compara- 
tively friendless,  country  member.  Palmer  was 
a  power  in  the  State.  Under  these  circum- 
stances this  strange  trial  proceeded.  There  was, 
of  course,  no  witness  to  the  interview,  and. 
therefore,  every  fact  tending  to  support  the 
statement  of  either  party  became  important. 

At  the  close  of  the  testimony  some  two  days 
were  spent  by  the  senate  in  determining 
whether  Colonel  Baker  should  have  the  opening 
and  close  of  the  argument,  or  whether  Gen- 
eral Williams  should  have  that  privilege,  and 
some  half-dozen  votes  by  yeas  and  nays,  are 
recorded  in  the  journal,  upon  various  propo- 
sitions regulating  the  order  of  the  summing 
up,  without  coming  to  an  agreement,  until  at 
last  the  chivalrous  spirit  of  Colonel  Baker 
prompted  him  to  request  that  General  Wil- 
liams should  have  the  opening  and  close. 

There  was  one  striking  feature  of  this  re- 
markable controversy.  While  it  was  fought 
with  the  utmost  tenacity  on  both  sides,  there 
was  an  entire  concurrence  on  the  part  of  those 
opposing  the  election  and  supporting  Peck — 
that  Broderick  had  no  lot  or  part  in  the  al- 
leged attempt  to  bribe,  and  that  he  was  as 
unconscious  of  any  proceedings  of  tliat  char- 
acter being  taken  in  his  behalf  as  if  he  liad 
been  at  the  bottom  of  the  sea. 

The  speeches  of  Colonel  Baker  and  Gen- 
eral Williams  occupied  two  days.  The  former 
never,  in  all  his  brilliant  career,  made  a  more 
powerful  address.  And  yet  no  remnant  of  it 
has    been    preserved.      The    extraordinary    cir- 


cumstances of  the  case  challenged  his  powers 
in  all  their  versatility.  Palmer  and  A.  A. 
Selover  reeled  under  his  invective.  The  "Se- 
lover  Route"  from  San  Francisco  to  Benicia 
has  not  faded  from  the  memory  of  those  who 
heard  Baker  then.  The  senate  went  into  se- 
cret session,  and  there  voted  without  debate. 
It  was  in  a  serious  dilemma.  There  did  not 
appear  to  be  much  doubt  of  Peck's  honesty — 
none  whatever  of  his  imprudence  in  blurting 
out  such  a  charge  against  a  man  of  Palmer's 
standing,  with  no  witness  to  prove  it.  The 
journals  show  that  the  senate  extricated  itself 
as  follows.  Hall,  Democrat,  of  El  Dorado, 
moved  the  following  resolution  : 

Resolved,  That  the  statement  made  by  the 
Hon.  Senator  from  Butte.  Mr.  Peck,  alleg- 
ing against  J.  C.  Palmer  an  attempt  to  commit 
bribery,  has  not  been  sustained  by  the  evidence 
adduced  in  the  investigation. 

Many  attempts  were  made  to  modify  the 
original  resolution  offered  by  Hall,  but  it 
passed  by  a  vote  of  21  to  7.  Catlin  was  among 
those  voting  in  the  negative.  Immediately 
upon  the  adoption  of  the  resolution  Crabbe 
(Whig),  of  San  Joaquin,  offered  the  follow- 
ing: 

Resolved,  That  this  decision  of  the  senate  in 
this  case  is  not  intended  in  any  degree  to  re- 
flect upon  the  honor  and  dignity  of  Mr. 
Peck. 

This  received  17  votes,  with  but  one  (Mr. 
Mahoney.  Democrat,  of  San  Francisco) 
against  it ;  ten  senators  not  voting.  Whether 
Peck  or  Palmer  won  the  fight  has  never  been 
determined.  The  case  offers  some  solemn  les- 
sons to  young  statesmen,  as  well  as  to  mem- 
bers of  the  third  house.  Never  attempt  to 
bribe  anybody.  If  you  are  offered  a  bribe, 
decline  it.  and,  instead  of  pocketing  the  money, 
pocket  the  insult  as  quietly  as  circumstances 
will  permit,  unless  it  should  happen  (which 
is  quite  improbable)  tliat  you  are  able  to  prove 
the  offer  by  other  evidence  tlian  your  own 
statement. 

Mr.  Catlin  was  a  mem1)er  of  the  assembly 
from    Sacramento    county    at    tlie    session    of 

1857. 

it  was  at  this  session  that  Broderick  and 
(Jwin  were  both  elected  Ihiitcd  States  sen- 
ators. Mr.  Catlin  voted  for  neither  of  them, 
but.  with  sixteen  others,  voted  for  Henry  A. 
Crabbe  and  James  W.  Coffroth. 

In  March,  1872.  Mr.  Catlin  was  appointed 
one  of  three  members  of  the  then  State  Board 
of    Equalization,    and    served    as    such    until 


History  of  the  Bench  and  Bar  of  California. 


505 


April,  1876.  The  most  effective  powers  con- 
ferred on  the  board  by  the  legislature  were, 
after  a  prolonged  contest,  declared  unconsti- 
tutional by  three  of  the  five  judges  of  the 
Supreme  Court,  which  led  to  the  abolition  of 
the  board.  During  this  period  he  was  in  the 
active  practice  of  his  profession,  but  found 
time  to  perform  prodigious  labors  in  the  board 
named. 

In  1875  Mr.  Catlin  was  brought  forward  as 
a  candidate  for  Governor  before  the  Independ- 
ent State  convention,  but  was  defeated  by  the 
combined  votes  of  the  supporters  of  John 
Bidwell  and  Mr.  Estee.  -which,  on  the  final 
ballot,  were  cast  for  General  Bidwell.  In  1878 
he  was  nominated  by  the  joint  convention  of 
the  Republicans  and  Democrats  of  Sacramento 
county  as  delegate  to  the  constitutional  con- 
vention, but  in  consequence  of  the  recent  death 
of  his  wife,  and  other  causes,  he  declined  the 
nomination.  In  1879  he  was  one  of  the  nomi- 
nees of  the  Republican  party  for  one  of  the 
seven  justices  of  the  reorganized  Supreme 
Court,  and  was  defeated  with  all  but  one 
on  his  ticket. 

In  i8go  Mr.  Catlin  was  elected  a  judge  of 
the  Superior  Court  of  Sacramento  county,  and 
served  the  full  term  of  six  years,  ending  with 
the  opening  of  the  year  1897.  He  then  returned 
to  the  practice.  We  closed  our  notice  of  his 
career,  in  "Bench  and  Bar"  (1889)  with  these 
words,  which  we  are  glad  to  repeat : 

"Mr.  Catlin  is  a  man  of  indefatigable  in- 
dustry, of  very  sound  judgment,  and  great 
power  of  investigation.  He  is  one  of  the 
safest  of  counsellors,  unswerving  in  his  fidelity 
to  his  clients,  and  a  good  man  every  way.  In 
speech  and  argument  he  is  slow  but  earnest. 
He  has  had  little  to  do  with  criminal  busi- 
ness. Having  a  good  memory,  he  can  tell 
a  thousand  interesting  reminiscences  of  early 
times  in  California.  He  is  slow  to  anger,  has 
no  vices,  possesses  a  generous  nature,  and,  al- 
though little  given  to  sport  or  humor  and 
having  a  serious,  stern,  almost  morose  look, 
is  gentle  in  spirit  and  as  tender  as  a  woman. 
A  man  of  pure  life,  broad  knowledge,  and 
strong  brain,  he  still  holds  a  good  clientage, 
and  is  the  junior  by  some  years  of  a  score  of 
men  who  are  leaders  at  the  bar  of  the  State. 
He  owns  a  very  fine  library,  in  which  he 
takes  more  delight  than  in  society,  politics, 
or  external  nature.  A  California  pioneer,  fa- 
miliar with  all  the  motley  scenes  of  time's 
latest  drama,  he  is  just  touching  upon  the 
borders  of  a  serene  old  age,  the  venerated 
confidant  of  the  public.  'Whole  in  himself,  .i 
common   good."  " 

After  tlie  foregoing  was  written  and  shortly 
before  this  History  was  complete,  .Mr.  Catlin's 


life  ended  peacefully  at  Sacramento.  November 
5.  igco. 


WILLIAM  M.  STEWART. 

William  Morris  Stewart,  at  the  head  of  the 
Nevada  State  bar  since  i860,  was  distinguished 
in  the  profession  in  California  fifty  years  ago. 
He  was  attorney-general  of  this  State  in  1854. 
He  was  born  in  Lyons,  Wayne  county.  New 
York,  on  the  ninth  day  of  August,  1827.  His 
father  was  a  native  of  New  England,  and  of 
Scotch  descent.  His  mother,  whose  maiden 
name  was  Miranda  Morris,  was  a  descendant 
of  a  well-known  New  York  family.  William 
was  the  eldest  son,  and  when  he  was  a  small 
boy  his  parents  moved  from  Western  New 
York  to  Trumbull  county,  Ohio,  and  settled  on 
a  farm.  His  boyhood  was  spent  in  assisting 
his  father  on  his  farm,  until  he  arrived  at  the 
age  of  thirteen,  w^hen  he  was  allowed  to  start 
in  the  world  for  himself. 

He  first  worked  for  a  neighbor  for  $8  a 
month  for  six  months.  He  then  went  to 
school,  in  an  adjoining  township,  called  Farm- 
ington  Academy,  and  managed  to  support  him- 
self and  attend  that  institution  for  three  years. 
To  accomplish  this  he  worked  for  wages  dur- 
ing school  vacations,  and  during  term  times 
he  sometimes  boarded  himself  and  cooked 
his  own  meals,  and  at  other  times  he  did 
chores  for  his  board.  A  high  school  having 
])een  established  in  Lyons,  New  York,  his 
native  town,  which  was  called  Lyons  L^nion 
School,  he  went  there  to  pursue  his  stud- 
ies, where,  as  formerlj-,  he  worked  on  the 
neighboring  farms  for  wages  during  the  vaca- 
tions. But  his  proficiency  in  mathematics  soon 
enabled  him  to  obtain  employment  as  a  teacher 
of  that  science  in  the  school  of  which  he  was 
a  pupil.  His  wages  during  vacation,  and  com- 
pensation as  teacher  of  mathematics  enabled 
him  to  prepare  for  college.  He  entered  Yale 
college,  remaining  there  until  the  winter  <if 
i849-'50.  His  mathematical  learning,  which 
had  been  so  useful  to  him  in  his  preparation 
for  college,  gave  him  great  prominence  in 
Yale,  where  he  took  the  first  prize  in  that 
stuily.  .Mthough  he  did  not  graduate  from 
Yale,  that  institution,  a  few  years  after  he  left, 
conferred  on  him  the  degree  of  Master  of 
Arts. 

IC.nly  in  1850,  being  tlun  twenty-two  years 
of  age.  Mr.  Stewart  started  for  California  via 
the  Isthmus  of  Panama.  He  arrived  in  San 
P'rancisco  on  the  seventh  day  of  May,  1830. 
and  soon  afterward  went  to  "Rtickeye  Hill.'"  in 


506 


History  of  the  Bench  and  Bar  of  California. 


Nevada  ctninly,  where  he  look  the  piek  and 
shovel  of  the  miner  and  went  to  work.  In 
the  fall  of  1850,  while  prospecting,  Mr.  Stew- 
art discovered  the  celebrated  Eureka  diggings, 
which  have  been  worked  continuously  ever 
since.  In  order  to  work  these  rich  mines  to 
the  best  advantage,  he  projected  the  Grizzly 
ditch,  taking  the  waters  of  Grizzly  Canyon  and 
Bloody  Run,  and  carrying  them,  at  an  im- 
mense expense,  down  to  the  Cherokee  dig- 
gings. The  want  of  lumber  being  greatly  felt, 
he  built  the  first  sawmill  on  Shady  Creek, 
which  furnished  an  abundant  supply  to  the 
miners  for  several  years.  In  the  spring  of 
1852  he  went  to  Nevada  City,  and  commenced 
the  study  of  law  with  John  R.  McConnell  (a 
notice  of  whom  is  in  this  history).  In  Decem- 
ber, 1852.  he  was  appointed  district  attorney, 
and  at  the  general  election  in  the  following 
year  he  was  elected  to  the  office.  General  Mc- 
Connell. while  attorney-general,  made  an  ex- 
tended visit  to  the  east,  and  at  his  request. 
Governor  Bigler,  in  June,  1854,  appointed  Mr. 
Stewart  attorney-general.  Mr.  Stewart  then 
removed  to  San  Francisco.  Here  he  married 
a  daughter  of  e.x-Governor  Foote.  of  Missis- 
sippi. He  returned  shortly  to  Nevada  City, 
and  thence  removed  to  Downieville. 

In  April,  i860,  Mr.  Stewart  removed  to  Vir- 
ginia City,  Nevada.  He  there  formed  a  part- 
nership with  Henry  Meredith,  who  soon  after 
was  killed  by  the  Piutes,  in  a  skirmish.  Mr. 
Stewart's  thorough  knowledge  of  mining  law 
.soon  brought  him  all  the  business  he  could 
attend  to.  Lawyers  flocked  to  Washoe,  at  the 
prospect  of  a  rich  harvest.  Into  this  litiga- 
tion Mr.  Stewart  entered  with  all  the  zeal  and 
earnestness  of  his  vigorous  nature,  and  he  was 
retained  in  almost  every  suit  of  importance 
brought  before  the  higher  courts  of  the  terri- 
tory, and  subsequent  state,  of  Nevada.  To 
his  legal  acumen,  sagacity  and  influence  is 
mainly  due  the  permanent  settlement  of  title 
of  nearly  all  the  mines  of  the  great  Comstock 
lode.  His  fees  were  large,  and  his  surplus 
funds  being  invested  in  the  development  of 
the  mines,  he  soon  became  one  of  the  leading 
operators  on  the  Comstock,  and  erected  for 
himself  the  finest  private  mansion,  at  that 
time,  existing  in  the  territory.  He  also  in- 
vested larire  sums  in  real  estate  in  San  Fran- 
cisco. The  editor  of  this  Hi.story  was  his  law 
clerk  at  that  day,  and  in  addition  to  our  salary 
as  such,  he  secured  us  an  appointment  from 
Governor  Nye  as  a  notary  public.  We  acted 
as    notarv    for    Mr.    Stewart's    firm    only,    and 


made  a  luuidred  dollars  a  niomii  in  notarial 
fees  from  the  firm's  business  without  leaving 
the  ofiice.  or  neglecting  other  duties. 

In  1861  he  was  chosen  a  member  of  the  Ter- 
ritorial Council,  which  office  he  subsequently 
resigned,  and  in  1863  was  elected  a  member 
of  the  constitutional  convention.  Here  his 
great  legal  talent  and  sound  discretion  were 
invaluable.  Mr.  Stewart  was  first  elected  to 
the  senate  of  the  United  States  in  1864,  and 
was  re-elected  in  1869.  A  specimen  of  the 
force  and  clearness  of  statement  of  the  con- 
dition of  the  mining  regions  and  the  rights 
of  miners,  which  induced  congress  to  aban- 
don the  project  of  confiscation  of  the  mines 
by  forced  sales,  will  be  found  in  the  appendix 
to  the  third  volume  of  Wallace's  United  States 
Supreme  Court  Reports,  page  777,  where  a 
portion  of  a  speech  delivered  by  Mr.  Stewart 
in  the  summer  of  1866  is  printed.  This  speech 
was  printed  in  this  volume  by  the  direction  of 
Chief  Justice  Chase  of  the  United  States  Su- 
preme Court,  in  order  to  explain  the  decision 
of  the  court  recognizing  the  possessory  rights 
of  miners  on  the  public  lands. 

After  he  retiied  from  the  senate  in  1875,  he 
resumed  the  practice  of  the  law  in  Nevada. 
California,  Arizona,  and  other  places  where 
his  services  wore  required,  with  main  office 
at  San  Francisco,  His  familiarity  with  the 
mining  laws  and  mining  litigation  created  a 
demand  for  his  services  throughout  the  Pacific 
Coast,  and  he  was  a  prominent  figure  at  the 
bar  in  important  cases  during  all  the  time 
after  he  retired  to  private  life.  Many  ques- 
tions of  public  interest  were  discussed  by  him 
during  these  years  with  great  learning  and 
ability.  His  brief  upon  the  question  of  the 
rights  of  appropnators  of  water  in  California 
for  the  purpose  of  irrigation,  which  was  filed 
on  motion  for  rehearing  in  the  celebrated  case 
of  Lux  vs.  Haggin,  is  a  powerful  statement  of 
the  case  in  favor  of  the  rights  of  appropriators, 
and  should  be  studied  by  those  who  desire  in- 
formation  upon   that   subject. 

His  printed  argununt  in  the  Sharon  case. 
after  it  was  supposed  the  sul)ject  had  been  ex- 
hausted, reads  like  a  novel,  and  is  well  worth 
l)erusing,  not  only  for  the  argument,  but  for 
its   humorous  and   racy  style. 

Mr.  Stewart  was  again  elected  to  the  United 
States  Senate  in  1886,  and  resumed  his  old 
seat  on  March  4,  1887.  He  is  one  of  the  most 
useful  and  experienced  members  of  that  body. 
He  was  re-elected  in  1892,  and  again  in  1898. 
His  present  term  will  expire  on  March  3.  1905. 


History  of  the  Bench  and  Bar  of  California. 


507 


He  was  one  of  the  original  irusloes  of  the 
Stanford  University,  and  we  get  our  facts  and 
much  of  our  language  from  a  sketch  of  him 
which  appeared  at  that  time  in  the  "Resoiu'ces 
of   California." 


SAMUEL  \V.  HOLLA  DAY. 

This  venerated  citizen  has  been  identified 
with  the  San  Francisco  bar  from  the  begin- 
ning. He  is  a  pioneer  of  Jime  4,  1849.  He 
was  a  member  of  the  assembly  in  1858,  and 
city  and  county  attorney,  1860-63.  In  the  legis- 
lature he  was  a  Republican  when  that  party 
was  little  more  than  well  organized,  and  had 
only  about  one  representative  in  six.  Of 
course,  now,  while  his  eye  is  bright  and  his 
step  free,  his  hair  is  very  gray.  We  recall  the 
time  when,  seated  in  the  assembly  gallery,  we 
heard  the  Democratic  Speaker.  N.  E.  White- 
side, invite  Mr.  HoUaday  to  the  chair  to  act 
as  presiding  officer,  and,  as  the  San  Francisco 
Republican  lawyer  walked  up  the  aisle  to  the 
platform,  his  abounding  locks  were  black  as 
a  raven's  wing. 

To  the  office  of  city  and  county  attorney  he 
was  elected,  and  re-elected,  by  the  People's 
party,  born  of  the  Vigilance  Committee  of  1856, 
which  governed  the  city  well  for  about  twelve 
years,  down  to  January,   1867. 

(In  this  connection,  for  an  interesting  article 
by  Mr.  Holladay  on  the  great  committee,  see 
the  San  Francisco  Bulletin  of  February  8. 
1858.) 

Mr.  Holladay  was  born  in  New  York  on  the 
29th  day  of  April,  1823.  He  married  Miss 
Georgiana  Catharine  Ord,  sister  of  General 
E.  O.  C.  Ord,  U.  S.  A.,  September  23.  1858. 
Mrs.  Holladay  is  living,  the  family  home,  es- 
tablished thirty  years  ago,  being  on  the  eleva- 
tion at  tlie  northeast  corner  of  Clay  and  Octa- 
via  streets,  about  a  mile  to  the  west  of  Cali- 
fornia Street  Hill.  The  children  are  E.  Burke 
Holladay,  the  well-known  lawyer  of  San  Fran- 
cisco, and  Mrs.  Allan  E.  Messer  and  Mrs.  Reg- 
inald Brooke.  Mr.  Messer  and  Mr.  F>rooke  are 
both  natives  of  London,  England. 

Mr.  Holladay  is  referred  to  witli  otlur  iiolile 
pioneers  of  the  bar,  in  our  sketch  of  Henry  I",. 
Highton.  He  made  a  visit  to  Euro])e  with  his 
family  in  1882,  and  the  family  made  lali-r  ;ind 
more  extended  sojourns. 

He  was  one  of  the  three  executors  of  the 
will  of  the  widow,  Almira  Gibson,  probated  in 
San  Francisco  in  1884,  in  wliich  a  legacy  of 
$3000  was  left  to  each  executor.  He  was  also 
an   executor    (with   William   Sherman,   Ignited 


States  Assistant  Treasurer,  and  Hon.  Samuel 
Cowles,  former  County  Judge)  of  the  estate  of 
Judge  John  Satterlec,  deceased,  and  received 
a   legacy   of  $5000. 

Mr.  Holladay  practiced  law  in  partnership 
witii  J.  C.  Cary,  afterwards  Superior  Judge, 
from  1852  to  1863.  He  was  next  associated 
with  Hon.  Nathan  Porter,  afterwards  district 
attorney,  from  1864  to  1873.  The  firm  was  for 
the  latter  part  of  the  time.  Porter,  Holladay 
&  Weeks  (E.  P.).  Mr.  Holladay  continued 
from  that  time  in  the  practice,  alone,  until  his 
son  joined  him  upon  being  admitted  to  the 
bar  in  1883.  In  the  Bonanza  suits  (Q.  V.) 
Mr.  Holladay,  and  John  Trehane,  attorneys 
for  ])laintifF,  received  a  fee  of  $40,000  each  ;  and 
tlieir  associate,  ex-Supreme  Judge  Nathaniel 
Bennett,  received  a  fee  of  $25,000. 

Our  friend,  sunny-tempered  in  his  old  age, 
as  ever,  is  still  in  practice  with  his  son.  The 
entire  profession  is  his  friend.  Of  positive 
convictions  and  .strong  character,  he  is  chari- 
table and  kind  to  others  regardless  of  condi- 
tion. He  has  a  classic  face,  refined  manners, 
a  (juiet  temperament,  and  is  devoted  especially 
to  his  home  and  family,  and  to  philosophical 
studies. 


HENRY  E.  HIGHTON. 

If  we  agree  with  the  members  of  the  "So- 
ciety of  California  Pioneers,"  that  only  those 
persons  are  pioneers  who  arrived  on  this  shore 
in  the  year  1849  or  before,  then,  it  will  be 
readily  accepted,  our  pioneer  lawyers  surviv- 
ing in  1900  are  very  few.  Indeed,  the  full 
l)ody  of  pioneers  yet  living  is  comparatively 
small.  As  for  the  living  pioneer  lawyers  who 
have  won  special  distinction  in  their  calling. 
and  whom  the  profession  toilay  delights  to 
honor,  the  entire  array  from  Yuma  to  Yreka 
may  be  counted  on  the  fingers  of  one's  two 
hands.  McAllister  and  Randolph  and  Mc- 
Dougall,  and  Field — who  of  their  compeers  arc 
lingering  still?     Did  they  have  compeers? 

h'rom  the  ])<iint  of  view  of  the  Pioneer  so- 
cieties, some  of  the  very  .iblest  lawyers  of 
the  State,  who  came  on  llie  scene  at  a  very 
early  d.ite.  were  not  pioneers.  Harry  F>yrnc 
w.is  not.  \or  w.'is  I  loge.  or  Sam  Wilson. 
or  liorfman,  or  Sawyer,  or  Jo  R;ildwin.  or 
llie   iwo   Shafters. 

Not  to  make  comparisons,  the  first-class  men 
of  the  earliest  day  who  have  lived  into  a  third 
generation,  rise  at  once  on  the  view.  There 
is  .Alexander  Campbell,  at  Los  Angeles — and 
W.ilier  \;in  Dvke,  and  Cornelius  Cole,  of  that 


508 


History  of  the  Bench  and  Bar  of  California. 


place.  There  is  Thomas  H.  Laine,  at  San 
Jose.  And  Niles  Searls,  at  Nevada.  And  A. 
P.  Cathn  and  John  H.  AlcCune,  at  the  Capi- 
tal. And  in  the  great  city  are  Annis  Mer- 
rill, and  John  Currey,  and  E.  W.  McKinstry, 
and  Samuel  W.  Holladay,  and  Henry  E. 
Highton. 

Mr.  Highton  is  youngest.  When  we  al- 
luded to  these  worthy  men  as  living  in  the 
third  generation,  we  might  have  excepted  him. 
He  was  born  in  1836,  July  31st,  in  Liverpool, 
England.  On  his  father's  side  he  came  from 
old  Leicestershire  lineage,  while  his  mother's 
famii}-  have  been  settled  in  Yorkshire  for 
many  generations.  His  father,  Edward  Ray- 
ner  Highton,  was  born  in  Leicestershire  Sep- 
tember nth,  181 1,  a  fellow-countryman  of  our 
Baker,  and  born  in  tiic  same  year  with  that 
great  lawyer,  orator  and  soldier.  In  his  na- 
tive country  the  elder  Highton  iield  many  mil- 
itary and  civic  positons,  and  there,  as  well  as 
in  this,  his  adopted  land,  his  name  and  fame 
are  inseparably  bleni  with  movements  for  mu- 
nicipal betterment  and  for  the  reformation  of 
criminals,  especially  juvenile  delinquents.  The 
Highton  family  name  is  interwoven  with  mod- 
ern  Enensh   history   and   English   classics. 

Henry  E.  Highton's  education  was  com- 
menced at  the  school  of  Rev.  J.  C.  Prince  in 
St.  Anne  Street,  Liverpool.  During  his  stay 
at  that  institution  he  took  ever}^  prize  for 
classics  offered  to  his  class.  The  intention  was 
to  complete  his  education  at  Rugby,  where  the 
Rev.  Henry  Highton  was  one  of  the  masters, 
but  this  was  intercluded  by  his  father's  emi- 
gration to  the  United  States.  It  was  in  1848 
when  the  elder  Highton  came  to  America  with 
his  son,  the  latter  then  aged  twelve  years. 

It  was  the  parental  wish  to  consecrate  young 
Henry  to  the  pursuit  of  law,  and  nature  her- 
self acquiesced  in  the  design.  A  brilliant  ca- 
reer at  the  bar  was  to  be  his  destiny,  which  he 
seems  to  have  early  foreseen,  and  the  youtli 
evinced  his  aptitude  for  the  science,  just  as 
Pope  "lisped  in  numbers,  for  the  numbers 
came."  Said  the  poet  Bryant,  alluding  to  his 
father :  "He  taught  my  youth  the  art  of  verse, 
and  in  the  bud  of  life  offered  me  to  the 
Muses."  Mr.  Highton  may  refer  to  his  fa- 
ther with  a  kindred  feeling.  By  light  of  sun, 
or  lamp,  or  candle,  or  behind  the  white  cliffs 
of  Albion,  on  the  deep,  and  in  the  bosom  of 
the  broad  continent  which  is  the  land  he  loves 
best,  his  legal  studies,  under  intelligent  par- 
ental direction,  were  never  intermitted.  His 
father  was  never  a  lawyer,  but  by  his  broad 
reading  and  grasp  of  mind  was  well  qualified 


to  teach  the  young  legal  idea  "how  to  shoot." 
We  have  heard  the  old  gentleman  speak,  with 
paternal  pride,  of  his  son's  early  promise,  and 
of  the  faith  in  his  future,  which  the  boy  kin- 
dled in  tlie  breasts  of  some  of  England's 
learned  men.  Said  the  Rev.  Mr.  Prince  to  the 
father,  when  the  latter  was  about  to  start 
with  his  son  for  the  New  World:  "Your  boy 
is  especially  adapted  for  the  legal  profession ; 
why  not  leave  him  in  England?  I  will  take 
charge  of  him.  I  feel  he  will  become  Lord 
Chancellor." 

It  was  at  Milwaukee,  Wisconsin,  that  the 
father  and  son  first  settled  on  this  side  of  the 
water.  There  the  young  man  was  placed  in 
the  office  of  a  leading  lawyer.  After  a  few 
months  the  gold  fever  began  to  rage  through- 
out the  country,  and  the  ambitious  and  ad- 
venturous youth,  not  thirteen  years  of  age, 
started  across  the  plains  for  California.  Not 
to  touch  the  incidents  of  his  toilsome  and 
eventful  trip,  he  rested,  on  September  3d,  1849, 
at  Weavertown,  three  miles  from  Placerville, 
then  called  "Hangtown."  From  that  date  until 
the  spring  of  1856,  with  the  exception  of  a  few 
months  passed  at  Sacramento,  he  lived  in  "the 
mines,"  engaged  in  various  occupations,  work- 
ing a  great  part  of  the  time  at  actual  mining 
in  the  placers,  like  many  others  who  after- 
wards attained  distinction  at  the  bar.  During 
this  period  while  his  character  was  forming 
amid  shifting  scenes,  mushroom  settlements 
and  anomalous  communities,  he  kept  his  mind 
and  heart  on  the  law,  studying  it  in  a  desultory 
way,  l)ut  not  altogether  without  system. 

Mr.  Highton  came  to  San  Francisco  in  1856, 
being  then  twenty-one  years  old.  He  came 
without  means,  and  knew  no  one  except  Dr. 
C.  C.  Knowles,  the  dentist,  who  took  great 
interest  in  him,  and  showed  him  much  kind- 
ness. Shortly  after  the  organization  of  the 
\  igilance  Committee  of  that  year,  be  became 
a  friend  and  associate  of  the  late  Frank 
Sonic,  who,  with  William  Newell,  owned  the 
then  San  Francisco  Chronicle,  which  died  a 
few  years  later.  He  was  made  first  reporter 
on  that  paper,  after  the  fashion  of  those  days, 
his  duties  being  afterwards  enlarged.  HeJ 
gathered  local  items,  reported  law  proceedings 
and  public  meetings,  and  condensed  news  from 
interior  journals,  and  from  Eastern,  Austra- 
lian and  Chinese  newspapers,  which  arrived 
in  large  batches.  After  two  or  three  months 
of  this  service  he  wrote  leading  articles  for  the 
old  Chronicle,  contributing  also  to  the  Golden 
Era  and  the  Spirit  of  the  Times.  During  the 
legislative  session  of   1859  he  was  the   Sacra- 


"iilA 


Henry  E.  Highton 


History  of  the  Bench  and  Bar  of  California. 


511 


mcnto  and  legislative  correspondent  of  tlie  San 
Francisco  Herald,  and  after  th  close  of  the 
session  wrote  for  that  paper  a  series  of  arti- 
cles on  the  manufacturing  interests  of  San 
Francisco,  and  upon  other  topics.  Mean- 
while, he  pursued  his  law  reading  at  night. 

Then  he  devoted  himself  entirely  to  his  le- 
gal studies  for  one  year,  and,  on  July  3d.  i860, 
he  passed  his  examination  and  was  admitted 
to  practice  by  the  Supreme  Court,  on  the  rc- 
jjorl  of  a  committee  composed  of  Cieneral 
Thomas  H.  Williams  and  John  B.  I'elton.  He 
answered  correctly  every  question,  including 
the  catch  query  or  puns  asiiiunnii  :  What  is 
the  difference  between  the  undivided  moiety  of 
the  whole  and  the  whole  of  an  uudi\-ided 
moiety?" 

B}'  the  advice  of  Oscar  L.  Shafter  he  com- 
menced the  practice  of  law  at  Sonoma,  then 
just  incorporated.  In  the  fall  of  i860  he  re- 
turned to  San  Francisco  and  began  law  prac- 
tice there.  In  1861  Mr.  Shafter  (who  had  not 
then  been  on  the  bench)  visited  the  East, 
leaving  to  Mr.  Highton  several  important 
causes  to  try  in  the  District  Court  under  the 
supervision  of  James  McM.  Shafter  and  Judge 
Heydenfeldt.  In  1862  Mr.  Highton  was,  for  a 
few  months,  in  partnership  with  Judge  O.  C. 
Pratt  and  the  late  H.  K.  W.  Clarke.  To  the 
latter's  widow,  a  lady  of  remarkable  intellect 
and  attainments,  whose  latter  years  were  at- 
tended by  great  physical  and  mental  suffering, 
he  subsequently  rendered  important  services. 
For  a  few  months,  also,  in  i864-"5,  he  was  in 
partnership  with  William  P.  Daingerfield  and 
J.  Douglas  Hambleton.  These  were  his  only 
partnerships.  Afterwards  for  a  year  or  more 
he  was  employed  especially  in  certain  matters 
by  Hall  McAllister,  who  became  his  warm 
and  constant  friend.  He  is  much  indebted  to 
Mr.  McAllister  for  his  introduction  to  general 
practice. 

At  times  his  successful  conduct  of  great 
criminal  cases  has  left  an  imi>ression  on  m;in\- 
that  his  specialty  is  that  branch  of  the  law. 
But  he,  like  McAllister,  has  no  s]K>cially.  In- 
deed, he  has  no  fondness,  although  great  fit- 
ness for  criminal  business.  He  has  repeatedly 
refused  to  take  part  in  the  prosecution  of  a 
capital  case,  and  has  made  this  a  rule  of  his 
professional   hie. 

Mr.  Highton  has  never  held,  or  a>^pired  to 
a  public  office,  or  been  a  member  of  a  ])oliiical 
convention;  yet  he  has  great  i)ul)lic  si)irii. 
which  has  been  often  signally  displayed. 

In    i860    the    late    John    IV    h'ellon    and    i.evi 


Parsons  (the  latter  had  been  a  district  judge 
in  San  Franci.sco)  attempted  to  secure  the 
passage  by  the  legislature  of  what  was  known 
as  the  ^'Bulkhead  Bill."  The  proposed  meas- 
ure would  have  given  the  whole  water  front 
of  San  Francisco  to  a  corporation  of  French 
capitalists,  represented  by  the  then  powerful 
firm  of  Pioche,  Bayerque  &  Co.  The  boldness 
and  magnitude  of  the  scheme  alarmed  the 
metropolis.  A  "Citizens'  Anti-Bulkhead  Com- 
mittee" was  formed,  with  Layfayette  Maynard 
as  chairman.  .Mr.  Highton  joined  this  body, 
and  was  forced  by  circumstances  and  the  par- 
tiality of  friends  into  a  prominent  position, 
lie  wrote  the  memorial  to  the  legislature,  the 
address  to  the  senate,  and  various  other  doc- 
uments against  the  measure,  contributing  to 
the  local  ]iress  many  articles  on  the  subject, 
which  were  published  as  "leaders."  After  the 
mission  of  the  committee  was  accomplished 
l)y  the  defeat  of  the  bill,  he  prepared  the  con- 
gratulatory address  to  the  people  of  the  State, 
of  which  many  thousands  of  copies  were  dis- 
tributed. The  committee,  through  Mr.  May- 
nard. presented  to  him  a  fine  gold  watch,  "as 
a  mark  of  appreciation  of  his  services  against 
corrupt  legislation."  At  the  next  session  of 
the  legislature  the  bill  passed  both  houses,  but 
was  killed  by  the  veto  of  Governor  Downey. 
Shortly  afterward  the  Governor  visited  San 
Francisco,  and  the  people  turned  out  en  masse 
to  receive  him.  .\  torchlight  procession  es- 
corted him  to  the  old  American  Theater 
(where  Halleck  P>lock  now  stands),  and  there 
Mr.  Highton  presented  and  read  the  resolu- 
tions drawn  by  lion.  W.  J.  Shaw  and  accom- 
panied them  with  a  vigorous  speech. 

He  was  the  author  of  the  resolutions  read 
and  adopted  at  the  great  Union  meeting  at  the 
corner  of  Montgomery  and  Market  Streets  in 
San  I'^rancisco.  in  .\pril.  1861.  Several  other 
promiiu'iU  men  had  submitted  resolutions  to 
the  connniltee  having  the  meeting  in  charge, 
and  some  of  them  were  very  lengthy.  Mr. 
ilighton's  draft   was  preferred. 

.\fter  the  .inti-bulkhead  victory,  Mr.  High- 
ton  w.is  luged  by  Lafayette  Maynard  and 
iiliuis  to  iini  for  the  State  senate,  but  he  told 
them  he  w.iuted  no  otlice.  and  the  l)est  service 
his  friends  emild  remlti"  him  was  to  send  him 
l;iw    business. 

Mr.  Highton  was  an  early  oi)ponent  of  Chin 
ese  immigration.  He  took  a  firm  stand  on  this 
( I  nest  ion  in  1857,  and  at  various  times  since  has 
given  public  I'xpnssion  to  his  views,  .\fter 
i'roideiu  .Xrthur's  veto  of  the  Chinese  bill, 
Sen.itor    Ingalls,    of    Kansas,    who    had    voted 


512 


History  of  the  Bench  and  Bar  of  California. 


against  the  bill,  addressed  a  letter  to  a  gen- 
tleman of  this  city,  in  which  he  expressed  his 
sentiments  on  ihe  Chinese  question,  and  de- 
clared that  the  vetoed  bill  was  a  deliberate 
affront  to  a  great  nation.  The  letter  was 
handed  to  Mr.  Highton.  who  wrote  a  lengthy 
reply  to  the  Senator,  which  was  published  and 
widely  read.  While  holding  tenaciously  to 
the  policy  of  Chinese  exclusion,  he  is  yet  un- 
compromisingly opposed  to  all  violence  to 
Chinese  residents.  He  has  said  strong  things 
against  the  Chinese,  but  has  also  declared  that 
the  whole  power  of  the  government  should 
be  employed,  if  necessary,  to  prevent  the 
slightest  personal  harm  to  the  Chinese  among 
us,  or  the  invasion  of  a  single  one  of  their 
legal  rights.  He  and  the  late  Judge  Lake,  both 
Democrats,  opposed  the  action  of  the  San 
Francisco  League  of  Freedom  in  its  aim  to 
obstruct  the  old  Sunday  law  ;  they  held  such 
action  to  be  anti-American  and  illegal,  because 
the  law,  whether  right  or  wrong,  as  a  political 
measure,  had  been  declared  constitutional  by 
the  Supreme  Court.  Mr.  Highton  spoke  on 
the  subject  at  Piatt's  Hall. 

Mr.  Highton  has  tried,  either  alone  or  as 
leading  counsel,  many  important  cases  in  every 
branch  of  his  profession,  especially  jury  cases, 
but  he  prefers  controversies  involving  intri- 
cate commercial  questions.  He  once  kept  a 
set  of  books  for  three  years  in  order  to  know 
how  to  comprehend  accounts.  There  are  lead- 
ing cases  of  his  in  the  Supreme  Court  Reports, 
in  which  his  name  does  not  appear,  because  he 
was  employed  as  counsel  and  was  careless 
about  getting  his  name  into  the  published  vol- 
umes. In  his  early  practice  he  wrote  many 
briefs  for  other  able  lawyers.  No  less  a  man 
than  Delos  Lake  said  on  one  occasion :  "A 
legal  opinion  from  Mr.  Highton  has  as  much 
weight  with  me  as  a  decision  of  the  Supreme 
Court." 

Acknowledging  that  the  working  classes  have 
long  had  good  cause  for  complaint  against  cor- 
porations and  canitalists,  he  yet  firmly  opposed 
the  movement  under  Dennis  Kearney.  He  suc- 
cessfully defended  John  Hayes  for  throwing 
Kearney  from  the  platform  at  Piatt's  Hall,  at 
a  meeting  called  to  consider  the  relations  be- 
tween the  city  and  the  Spring  Valley  Water 
Works.  This  was  a  long  and  exciting  trial. 
It  was  admitted  that  Hayes  did  assault  Kear- 
ney as  a  matter  of  fact,  but  Mr.  Highton  main- 
tained that  the  act  was  committed  in  defense 
of  the  rights  of  popular  assemblage  and  free 
speech,  and  supported  his  position  by  many 
historical  and  judicial  precedents. 


On  March  i6,  1878,  at  2  o'clock  in  the  after- 
noon, a  large  public  meteing  was  held  in  Platt's- 
Hall,  San  Francisco,  to  express  opposition  to 
the  proposed  purchase  of  the  water  works  of 
the  great  Spring  Valley  Water  Company.  The 
meeting  was  called  by  several  citizens,  none  of 
whom  had  any  affiliation  with  Kearney  or  the 
so-called  W^orkingmen's  Party.  The  attend- 
ance was  very  large.  The  committee  of  ar- 
rangements had  selected  Monroe  Ashbury  for 
President.  Mr.  Ashbury  was  an  old  citizen, 
universally  honored,  and  had  held  several 
important  offices ;  but  he  was  not  the  right  man 
to  meet  the  unforeseen  crisis  which  was  at 
hand. 

The  meeting  was  not  called  to  order  until  a 
quarter  of  an  hour  after  the  appointed  time. 
'1  Ue  hall  was  full  and  the  audience  restive,  es- 
pecially that  portion  composed  of  Kearney's, 
contingent,  present  in  large  force.  The  chair- 
man of  the  committee  proposed  Mr.  Ashbury 
for  president,  and  declared  him  elected.  Mr. 
Ashbury  was  present,  but  just  then  there  were 
loud  calls  for  Kearney,  who  took  the  platform, 
and  Mr.  Ashbury  did  not  appear.  There  is 
hardly  a  doubt  that  if  Mr.  Ashbury  had  been 
nominated  earlier,  had  promptly  responded, 
and  had  exhibited  a  firm  attitude,  all  would 
have  been  well.  But,  as  he  afterwards  testi- 
fied, he  considered  the  meeting  had  been 
packed,  that  its  objects  had  been  defeated, 
and  he  declined  to  serve  as  chairman.  The 
Sand  Lot  instantly  asserted  sway.  Kear- 
ney himself  put  the  question  as  to  whether  he 
should  preside.  A  loud  response  went  up  from 
his  men,  inassed  in  the  center  of  the  hall,  and 
he  declared  himself  elected. 

Several  speeches  then  followed,  one  of  them 
lieing  made  by  Rev.  H.  Cox.  (Mr.  Cox,  State 
Senator  Edward  Nunan,  and  Eugene  N.  Deu- 
prcy.  then  a  rising  young  lawyer,  had  been  se- 
lected by  the  committee  as  the  speakers  of  the 
occasion.)  Senator  Nunan  next  presented 
himself  and  was  introduced  tc:)  the  assemblage 
by  Rev.  Mr.  Cox.  Kearney  then  declared  that 
Nunan  should  not  speak — that  no  politician  in 
office  should  speak  at  a  meeting  at  which  he, 
Kearney,  presided.  Bedlam  then  broke  forth, 
and  a  general  row  was  only  prevented  by  the 
police,  who  made  several  arrests.  During  the 
dispute  between  Kearney  and  Nunan  as  to  the 
latter's  right,  or  rather  power,  to  speak.  Mr. 
John  Hayes,  an  old  citizen,  one  of  the  family 
after  whom  Hayes  Valley  and  Hayes  street 
were  named,  went  upon  the  platform  and  said 
lo  Kearney.  "If  you  do  preside  over  this  meet- 
ing, you  don't   run   it."     Then,  getting  behind 


History  of  the  Bench  and  Bar  of  California. 


513 


the  "president,"  he  pushed  him  off  the  phitform 
into  the  music  stand.  Hayes  was  arrested, 
and  Kearney  and  Numan  continued  their  dis- 
pute with  voice  and  gesture  for  twenty-five 
minutes.  Finally,  Numan  was  prevailed  upon 
to  retire  in  the  interest  of  peace.  After  a  short 
speech  from  a  legal  light  of  the  Sand  Lot, 
Kearney  declared  the  meeting  adjourned,  and 
it  dispersed.  Three  weeks  later,  April  7,  1878, 
the  trial  of  Hayes  on  a  charge  of  battery  upon 
Kearney,  was  commenced  in  the  Police  Court. 

The  instances  are  far  too  numerous  to  be 
noted,  where  peaceable  and  reputable  citizens 
have  been  called  upon  to  administer  chastise- 
ment in  cases  where  the  law  failed  to  pre- 
scribe any  punishment ;  but  in  such  instances, 
the  result  has  nearly  always  been  that  the 
party  who  sought  to  right  his  wrong  was  him- 
self punished  by  the  law.  Hayes,  of  course, 
committed  an  assault  upon  Kearney.  The  de- 
fence it  would  seem  would  have  plead  that  the 
provocation  was  great  if  not  irresistable.  All 
classes  of  society  agreed  that  Hayes  would  be 
convicted  of  assault,  and  would  be  fined — the 
better  classes  hoping  that  the  fine  would  be 
the  lightest  permissible.  But  Mr.  Highton, 
who  anneared  for  the  defence,  and  also  in 
reality  in  behalf  of  society  and  the  public, 
took  the  bold  and  novel  ciround  tliat  Kearney 
was  the  aggressor;  that  he  had  first  committed 
a  technical  assault  upon  John  Hayes  and  upon 
ever}-  other  citizen  who  had  entered  Piatt's 
Hall  to  further  the  object  of  the  meeting;  and 
that  when  Hayes  pushed  him  from  the  plat- 
form he,  Hayes,  acted  in  self-defense  and  in 
defense  of  those  who  had  called  the  meeting. 

Although  this  w-as  only  a  case  of  battery 
in  an  inferior  criminal  court,  it  makes,  by 
reason  of  the  principle  involved,  and  the  able 
and  ingenious  manner  in  which  the  defense 
was  in  cllect  tin-ned  into  a  prosecution,  a 
bright  chapter  in  Mr.  Highton's  forensic  ca- 
reer. The  evidence  was  interesting,  the  argu- 
ments able  and  instructive,  and  the  case  mer- 
ited a  full  report,  for  wide  dissemination  in 
printed  volumes. 

Mr.  Highton  probably  never  achieved  a  more 
notable  triumpli.  Immediately  upun  thr  close 
of  the  argument,  the  magistrate.  Hon.  Davis 
Louderliack,  rendered  his  decision,  as  follows  : 

"I'nder  tlie  circumstances  of  the  case,  1 
think  the  conduct  of  Dennis  Kearney  in  seiz- 
ing the  organization  and  controlling  the  pro- 
ceedings of  that  meeting,  was  unjustifiable  and 
illegal.  I  think  the  law  views  his  act  as  an 
intrusion  and  a  violation  of  the  rights  of  those 
persons   who   originated   the   meeting,   and    I  lie 


right  of  the  people  peaceably  to  assemble  for 
a  lawful  purpose.  This  shove  was  evidently, 
not  for  the  purpose  of  an  assault,  but  in  as- 
sertion of  the  rights  of  the  meeting.  He  did 
not  beat  him  or  strike  him ;  but  gave  him 
a  shove  in  the  excitement  of  the  moment  to 
assert  his  right  and  his  protest  against  Kear- 
ney's illegal  acts.  Under  the  circumstances,  I 
think  it  does  not  constitute  a  battery,  or  an 
assault,   and   the   case   is   dismissed." 

The  result  of  this  trial  was  received  with 
great  satisfaction  by  the  large  majority  of  cit- 
izens. It  won  for  Mr.  Highton  (who  would 
accept  no  fee)  the  earnest  plaudits  of  the  press 
and  people,  and  added  largcl}-  to  his  fame  as 
an  advocate. 

The  two  principal  criminal  trials  with  which 
Mr.  Highton  has  been  connected,  presented 
interesting  coincidences.  Both  grew  out  of 
assaults  upon  the  proprietors  of  the  San  Fran- 
cisco Chronicle,  and  both  resulted  in  the  ac- 
quittal of  the  accused.  The  first  was  the  mur- 
der case  of  Isaac  M.  Kalloch,  son  of  Mayor 
Kalloch.  In  this,  Mr.  Highton  was  leading 
counsel  for  the  defense.  The  accused,  whose 
father  had  been  severely  arraigned  by  the 
Clironiclc  as  being  corrupt  personally  and  of- 
ficially, followed  Charles  De  Young,  the  senior 
])roprietor,  into  his  business  office  and  shot 
him  down.  This  was  in  i860.  In  the  other 
case,  assault  to  murder,  the  accused.  A.  B. 
Spreckels,  also  invaded  the  Chronicle  business 
office  and  shot  M.  H.  De  Young,  the  sole  pro- 
prietor, inflicting  serious  wounds.  He,  too, 
claimed  to  have  taken  arms  in  vindication  of 
his  father  and  family.  This  was  in  1885,  and 
in  this  case  Mr.  Highton  was  associated  with 
Hall  McAllister.  The  coincidences  failed  in 
the  ])roperty  qualifications  of  the  two  accused, 
Kalloch  being  a  poor  man  and  Spreckels  a 
Crcesus.  Both  trials  progressed  at  great 
length,  amid  deep  public  interest,  and  in  each 
iluTc   was  a   general   verdict  of  not   guilty. 

Mr.  Highton  argued  all  the  questions  in 
ilu-  I  )ui)oni  street  cases,  before  the  Nine- 
teenth District  Court,  in  connection  with  Judge 
(l.'irber  and  Thomas  B.  Bishop.  These  cases 
grew  out  ol"  the  widening  of  what  is  now  Grant 
.\ venue.  San  l'"rancisco.  He  participated  in 
the  argument  of  tlu-  actions  to  enjoin  the  col- 
lection of  the  Kearney  street  widening  tax,  and 
to  recover  the  taxes  already  collected.  He 
made  arguments  in  both  the  District  and  Su- 
preme Courts. 

Mr.  HiglUon  delivered  the  oration  in  18S3. 
August  24th.  at  the  laying  of  the  corner  stone 
of    the    (iarfield     Mouinuenl     in    Golden    Gate 


514 


History  of  the  Bench  and  Bar  of  California. 


Park.,  San  Francisco.  The  ceremonies  were 
conducted  by  the  Knights  Templar  of  the 
United  States,  tlien  in  triennial  conclave.  As 
the  occasion  was  rare  in  other  respects,  so 
the  audience  was  one  of  the  grandest  ever  ad- 
dressed by  man,  nnml)ering.  it  is  believed, 
si.xty   thousand   peo])le. 

In  August.  1874.  Mr.  Highton  married  the 
second  daugher  of  the  late  P.  M.  Scoffy.  long  a 
merchant  in  New  Orleans  and  San  Francisco, 
who  died  highly  respected  and  much  beloved, 
in  1895.  His  wife  is  an  amateur  artist  of  de- 
cided merit.  She  i>ainted  a  number  of  fine 
pictures,  one  of  which,  a  large  painting  of 
Mount  Shasta,  was  e\hi1)ite(l  at  the  rooms  of 
the  Art  Association. 

Mr.  Highton  has  no  children.  He  is  a  mem- 
ber of  the  Episcopal  Church.  He  has  no  pa- 
tience with  infidelity,  or  atln'isni.  and  has  fre- 
quently spoke  it-,  favor  of  religions  organiza- 
tions, outside  of  his  own  church.  Among  his 
more  recent  essays  for  public  study  was  one 
of  universal  interest.  "The  Book  of  Job  in  Re- 
lation to  Modern  Agnosticism."  It  appeared 
in  the  San  Francisco  Bulletin  of  February  6. 
1897,  covering  a  page  and  a  half  of  the  paper. 

He  always  regarded  his  six  years'  labor  in 
the  mines  as  of  incalculable  benefit  to  him.  and 
credits  it  with  his  physical  development.  It 
embraced  the  plastic  period  of  youth,  and  made 
him  an  American  at  heart  and  imbued  him 
with  a  vital  sympathy  for  the  working  classes. 
He  believes  that  men's  lives  are  valuable  in 
proportion  to  the  amount  of  useful  work  which 
they  do.  He  thinks  that  .\nierican  civilization 
is  the  highest,  and  that  the  .Vmerican  system 
of  government  is  the  most  potent  to  produce 
the  best  results.  His  faith  in  the  people  is 
thorough  and  profound. 


ALEXANDER   CAMPBELL. 

This  imposing  figure,  towering  so  long  in 
the  southern  i)art  of  the  State,  enjoyed  for  a 
considerable  period  the  distinction  of  being  the 
first  criminal  lawyer  at  the  San  Francisco 
bar.  In  the  pulilic  mind  he  was  associated  with 
criminal  trials,  and  it  is  true  that  he  had 
shown  himself  at  his  best  in  tliat  role;  but 
this  was  becau.se  he  had  more  business,  and. 
therefore  more  onT)ortunity.  in  that  department 
of  law.  Of  course,  a  lawyer,  even  of  the  first 
class,  cannot  always,  nor  often,  control  the 
course  or  character  of  his  professional  work. 
The  people  have  much  to  do  with  deciding 
whether  a  lawyer  must  confine  himself  to  a 
special    line    of    cases.      As    was    observed    of 


iMcAllister,  they  frequently  persist  in  assign- 
ing a  lawyer  to  a  specialty  when  he  has  none. 
An  advocate  may,  and  often  does,  at  the  outset 
of  his  career,  by  a  masterly  effort,  establish  a 
local  reputation  for  special  aptitude  and  abil- 
ity in  a  p.irticular  line,  when  he  is  really  enti- 
tled to  :i  more  catholic  judgment,  a  broader 
fame.  He  will  inevitably  become  involved 
with  his  cause,  and  the  more  close  his  devotion 
to  any  cause,  the  more  apt  is  he  to  be  assigned 
to  the  class  to  which  such  cause  belongs.  If 
he  signalize  his  entry  upon  the  active  duties 
of  his  profession,  by  a  powerful  prosecution 
or  a  brilliant  defense  of  a  great  criminal,  he 
will  be  fortunate  if  afterwards  he  can  build 
u])  and  wield  a  general  practice : — while  if  it 
be  a  great  land  case  that  shall  disclose  the 
riches  of  his  intellect  and  the  stores  of  his 
erudition,  he  will  probably  do  a  land  busi- 
ness, if  not  a  "land  ofiice  business,"  the  re- 
mainder of  his  life.  But  those  whose  lots  are 
cast  in  sparsely  settled  communities,  where  the 
division  of  labor  is  never  strongly  marked,  are 
not  so  affected. 

It  was  not  by  his  own  preference  that  ex- 
Judge  Campbell  devoted  most  of  his  time  in 
San  Francisco  to  criminal  practice.  It  was  dis- 
tasteful to  him  to  be  assigned  to  any  specialty. 
He  loved  the  law  in  its  integrity,  and  dis- 
claimed having  special  fitness  for  any  particu- 
lar branch.  It  is  not  strange,  however,  that 
having  been  called,  in  very  early  manhood,  to 
be  the  public  prosecutor  in  the  great  center 
of  American  life,  criminal  practice  should 
thereafter   engage   his   principal   attention. 

Alexander  Campbell  was  born  in  Jamaica 
in  February,  1820.  His  father  was  an  English- 
man and  a  planter.  Upon  the  abolition  of 
slavery  in  the  island,  he  removed  with  his 
f.imily  to  New  York,  and  thence  to  Nova  Sco- 
tia, lie  sent  Alexander  to  England,  and  gave 
him  what  is  sometimes  called  here  a  grammar- 
school  educ.-ition.  The  young  man  commenced 
the  study  of  law  in  New  York,  when  he  was 
sixteen  years  old.  In  1842  he  opened  prac- 
tice in  Brooklyn.  The  oft-used  expression, 
"architect  of  his  own  fortune,"  may  be  ap 
plied  to  him.  if  to  anybody.  He  did  not  in- 
herit a  doll.ir.  \ot  to  dwell  upon  his  youthful 
struggles,  he  is  found  honestly  and  earnestly 
acquiring  a  knowledge  of  law.  At  his  ma- 
jority he  is  admitted  to  practice,  and  for  some 
years  follows  his  profession  successfully,  at- 
tracting the  notice  of  his  seniors  by  his  correct 
judgment,  and  his  lucid,  impressive  method 
of  argument.  Before  he  is  thirty  years  old 
he    has    been    city   attorney   of    Brooklyn,   and 


Alexander  Campbell 


History  of  the  Bench  and  Bar  of  California. 


517 


district  attorney  of  Kings  comity.  In  the  latter 
office  he  has  won  a  reputation  for  being  an 
indefatigable,  sometimes  a  fierce,  prosecutor 
of  public  offenders,  whether  they  operated 
singly  or  in  bands,  cliques  or  rings. 

Mr.  Campbell  first  came  to  San  Francisco 
m  August,  1849.  He  had  been  practicing  at 
the  bar  a  little  over  a  year  when  he  became 
County  Judge  in  a  novel  way,  or  rather,  at 
the  end  of  a  novel  legal  controversy.  William 
H.  Clark,  another  pioneer,  was  regularly 
elected  County  Judge  at  an  election  appointed 
by  law.  On  the  very  day  of  the  election,  while 
the  voting  was  in  progress,  the  legislature, 
then  sitting,  passed  a  law  repealing  the  act 
under  which  the  election  was  being  held,  and 
conferred  upon  the  Governor  the  power  to  ap- 
point a  County  Judge.  The  Governor  ap- 
proved this  repealing  act  on  the  scuiic  day,  and 
a  few  days  thereafter  appointed  Alexander 
Campbell  County  Judge.  A  conflict  arose  be- 
tween Messrs.  Clark  and  Campbell,  which  was 
carried  before  the  Fourth  District  Court  by 
quo  ivarranto,  and  thence  on  appeal  to  the 
Supreme  Court,  resulting  in  a  triumph  for 
Campbell ;  it  being  held  that  the  repealing  act 
took  efifect  on  the  day  of  tlie  election,  and  be- 
fore the  voting  terminated,  and  that  the  elec- 
tion was  therefore  void.  The  decision  of  the 
Supreme  Court  in  this  case  was  rendered  by 
Judge  S.  C.  Hastings,  Judge  Lyons  concurring. 
There  were  only  three  members  of  the  court 
at  that  day.  Judge  Bennett,  the  remaining 
member,  expressed  his  dissent,  declaring  that 
the  repealing  act  did  not  take  place  until  the 
(lay  after  the  election,  and  that,  therefore,  the 
result  of  the  election  could  not  be  disturbed  by 
the  legislative  enactment.  It  was  agreed  that 
the  repealing  act  took  efifect  from  and  after 
its  passage.  Judges  Hastings  and  Lyons  held 
that  it  took  efifect  the  very  moment  the  Gov- 
ernor signed  it.  Judge  Bennett  held  that  an 
act  taking  efifect  from  and  after  its  passage, 
does  not  become  operative  until  the  next  day 
after  its  passage.     (First  Cal.  Reports,  406.) 

By  virtue  of  his  position  as  County  Judge, 
Judge  Campbell  was  Presiding  Justice  of  the 
Court  of  Sessions,  which  tribunal  was  com- 
posed of  the  County  Judge  and  two  justices  of 
the  peace  as  associate  justices.  While  the 
Court  of  Sessions  was  sitting  one  day — present, 
-Alexander  Campbell,  presiding  judge,  and  Ed- 
ward McGowan.  associate — an  event  occurred 
which  probably  has  no  parallel  in  legal  annals. 
It  was  the  9th  day  of  September,  1851.  The 
grand  jury  came  into  court,  and  through  their 
foreman  presented  and  read  a  written  request 


l(j  be  discharged  on  the  ground  that  the  exec- 
utive. Governor  McDoupal,  had  pardoned  "a 
certain  criminal,  a  notorious  enemy  of  peace- 
able men."  The  court  refused  to  discharge 
the  jury.  Judge  Campbell  remarked  that  if 
the  jury  were  to  be  discharged  upon  the 
ground  set  forth  in  their  report,  the  court  could 
not  refuse,  if  renuested.  to  discharge  the  next 
grand  jury;  and  the  next;  and  not  only  that, 
but  every  officer  of  the  law  might,  with  the 
same  propriety,  desert  his  post  and  abandon  his 
duties,  and  so  leave  the  country  in  anarchy. 
The  grand  jurors,  having  relieved  themselves 
in  some  measure,  returned  to  their  duties. 

Judg-e  Campbell  resigned  his  seat  on  the 
bench  about  six  months  before  the  expiration 
of  his  term,  and  was  succeeded  by  Judge  T 
W.  Freelon.  He  resumed  law  practice,  which 
he  pursued  until  the  organization  of  the  Vigi- 
lance Committee  of  1856,  when,  as  Dickens 
said  of  London,  in  describing  the  religious 
riots,  "the  city  rose  like  a  great  ocean."  On 
account  of  his  opposition  to  that  organization, 
he  withdrew  to  the  Sandwich  Islands,  for  a 
year.  He  returned  and  resumed  practice 
in  1857.  From  that  lime  until  1881.  when  he 
again  removed  irom  the  city,  he  was  a  conspic- 
uous figure  at  the  metropolitan  bar. 

Among  the  more  noticeable  of  the  cases  in 
which  he  has  been  engaged  may  be  mentioned 
the  Black  will  case;  the  Harry  Byrne  will  case 
in  wliich  Matilda  Heron  was  the  contestant; 
the  impeachment  of  Judge  Hardy,  1862 ;  the 
breach  of  promise  case  of  widow  Clark  vs. 
Michael  Reese;  the  case  of  the  People  vs. 
Clark  ;  the  two  trials  of  the  Brotherton  broth- 
ers, for  forgery  ;  and  the  two  trials  of  Laura 
D.  Fair  for  the  murder  of  A.  P.  Crittenden ; 
the  case  of  Kalloch.  indicted  for  the  murder  of 
Charles  De  Young,  of  the  San  Francisco 
Chronicle ;  and  the  case  of  Spreckels,  indicted 
for  assault  to  murder  M.  H.  DeYoung,  sur- 
viving proprietor  of  the  same  paper. 

The  Fair  murder  case  has  been  touched  in 
the  notice  of  Byrne.  On  both  trials,  Alexander 
Cami)bell  assisted  the  district  attorney  in  the 
prosecution.  His  speech  to  the  jury  on  the 
first  trial  was  reported  verbatim,  with. all  the 
proceedings,  .-md  published  in  pamphlet.  This 
spccili  is  wortiiy  of  study  by  the  law  student. 
It  is  in  Campbell's  best  vein;  is  bold,  argu- 
mentative, manly  and  powerful,  shorter  than 
any  other  of  the  four  speeches  in  the  case,  but 
just  long  enough,  and  delivered,  as  is  his  cus- 
10111.  without  notes.  His  fame  as  an  advocate 
will  rest  chiefly  upon  this  effort.  It  does  not 
ooniain    a    single    quotation    from    poetry    or 


511 


History  of  the  Bench  and  Bar  of  California. 


prose.  It  is  entirely  divested  of  foreign  orna- 
ment, but  in  itself  is  polished,  symmetrical, 
complete.  It  is  distinguished  for  its  impas- 
sioned invective  against  free  love,  its  skillful 
analysis  of  the  character  of  the  defendant,  and 
its  dreadful  anathemas  upon  her  plea  of  in- 
sanity, which  he  declared  to  be  "a  defense 
shameless,  disgraceful,  and  destitute  of  any 
element  which  could  commend  it  to  the  heart 
or  judgment  of  any  honest  man." 

This  veteran  of  eighty  winters  is  a  man  of 
lightning  perceptions — courageous,  forcible,  im- 
pressive, apt  at  citation,  plausible  in  his  the- 
ories, clear  and  strong  in  thought  and  voice, 
and  animated  in  delivery.  He  finds  attentive 
hearers  in  his  juries.  He  gives  no  thought 
to  the  arts  and  tricks  of  practised  speakers. 
Seneca's  precept  seems  to  be  ever  before  him 
— "Fit  words  are  better  than  fine  ones."  Very 
rarely  does  he  turn  aside  from  the  realm  of 
reason  to  the  domain  of  feeling,  yet  has  he 
sometimes  touched  with  rare  skill,  the  chords 
of  sympathy,  and  sounded  the  depths  of  the 
soul.  More  than  once  have  we  seen  warmth, 
earnestness  and  power  breathe  about  him,  as 
he  poured  forth  a  copious  flow  of  that  clear 
language  which  has  been  well  said  "to  spring 
spontaneously  from  definite  and  precise  ideas." 
Before  a  jury  his  movements  and  gesticula- 
tion are  unrestrained ;  his  voice  pleasant,  yet 
not  musical,  and  his  expression  clear  and  con- 
densed. He  is  the  most  unaffected  of  men.  No 
man  has  less  vanity.  He  never  courts  the  re- 
porters— never,  by  glance  or  movement,  does 
he  betraj-^  a  consciousness  that  he  is  observed. 

In  1881,  Judge  Campbell  removed  to  Arizona, 
where  he  soon  put  himself  at  the  head  of  the 
bar,  and  disabused  the  popular  mind  of  the 
idea  that  he  was  a  legal  specialist.  After  five 
years  in  that  region,  he  came  back  over  the 
California  line,  and  settled  at  Los  Angeles. 
Here  he  became  associated  with  two  other  at- 
torneys of  more  than  local  reputation — the 
firm  being  known  as  Houghton,  Silent  & 
Campbell.  After  some  ten  years,  Mr.  Hough- 
ton retired,  and  the  partnership  of  Silent  & 
Campbell  was  continued  for  two  years  there- 
after. Something  over  a  year  ago  Judge 
Campbell  was  severely  injured  in  a  street-car 
accident,  and  was  confined  to  his  bed  for  many 
months.  While  somewhat  lame,  Judge  Camp- 
bell is  still  a  hale  and  vigorous  old  man,  and 
does  not  look  the  eighty-one  years  that  have 
passed  over  his  head.  He  was  married  in 
1872  to  Mrs.  Ruth  E.  Quinn.  widow  of  former 
Lieutenant   Governor   Quinn,   and   has   by   his 


marriage  a   son,   now   an   employe  of  the   San 
Francisco  Chronicle. 


JOHN  T.  DOYLE. 


John  T.  Doyle  was  born  in  New  York  city 
November  26,  1819,  a  son  of  John  and  Fran- 
ces (Glinden)  Doyle.  His  grandfather  was  an 
Irish  rebel  of  1798,  and  came  to  the  United 
States  in  1803.  His  son  John  followed  in  1815, 
and  was  a  well-known  bookseller  in  New  York 
for  thirty-five  years,  down  to  1852.  The  pres- 
ent sul)ject  after  a  course  at  Columbia  Col- 
lege grammar  school.  New  York,  entered 
Georgetown  College.  D.  C,  where  he  gradu- 
ated, valedictorian,  in  1838.  He  studied  law 
and  practiced  in  New  York  city  from  1842  to 
1851.  when,  on  a  vacation  visit  to  Nicaragua, 
he  became  acquainted  with  Commodore  Cor- 
nelius Vandcrbilt,  then  deep  in  a  scheme  for 
cutting  a  ship  canal  across  the  isthmus.  On 
returning  to  New  York  he  accepted  Mr.  Van- 
derbilt's  invitation  to  become  general  agent  of 
the  canal  company  in  Nicaragua.  In  that  ca- 
pacity he  spent  a  year  on  the  isthmus,  and  built 
the  still  used  "Transit  road"  from  the  lake 
to  the  Pacific.  The  canal  company  failed  to 
obtain  the  capital  needed  for  its  projected  en- 
terprise, and  Mr.  Doyle  resigned  his  position 
and  removed  to  California,  where  he  resumed 
the  practice  of  his  profession  in  San  Francisco, 
in  1853.  and  remained  until  1888  at  that  bar. 

He  has  never  sought  public  office,  nor  held 
it,  except  as  a  regent  of  the  university  when 
it  was  founded  in  1868,  and  when  by  appoint- 
ment of  Governor  Irwin  he  served  as  a  mem- 
ber of  the  Board  of  "Commissioners  of  Trans- 
portation," his  associates  being  General  George 
Stoneman  and  Isaac  P.  Smith.  This  position 
led  him  to  a  close  study  of  transportation  prob- 
lems, and  especially  of  abuses  in  railroad  trans- 
portation. For  these  he  became  convinced 
that  the  true  remedy  is  to  be  found,  not  in  the 
arbitrary  regulation  of  freights  by  the  State, 
but  in  the  enactment  of  just  rules,  by  which 
such  charges  shall  be  determined.  He  holds 
that  railroads  are  public  highways  and  should 
be  open  to  all,  on  equal  terms ;  discrimination 
between  individuals  should  be  made  criminal 
and  severely  punished  as  such.  As  to  freight 
charges,  he  would  begin  by  abolishing  the  car- 
rier's common  law  liability,  as  an  insurer,  as 
uncalled  for  by  modern  conditions  of  .trans- 
portation, and  serving  merely  to  excuse  arbi- 
trary charges,  having  no  relation  to  the  cost 
of  the  service.  Leaving  the  carrier,  then,  to 
elect  as  to  each  commodity,  whether  the  ton 


History  of  the  Bench  and  Bar  of  California. 


519 


or  other  units  should  be  determined  by  bulk  or 
by  weight,  he  would  classify  all  merchandise  in 
accordance  with  its  physical  characteristics  (as 
facility  of  handling,  loading,  stowing,  liability 
to  breakage,  leakage,  etc.),  and  require  the 
charge  for  transport  to  be  divided  into  two 
parts,  viz :  A  terminal  and  a  movement  charge. 
The  former — intended  to  compensate  for  re- 
ceiving, loading,  stowing,  waj'billing  unload- 
ing and  delivering  the  property  (station  serv- 
ice, in  a  word),  to  be  (jependent  on  the  class 
and  quantity  of  the  goods ;  the  latter  by  the 
distance  traversed,  equating  grades  and  curves 
to  distance.  The  rule  briefly  expressed  would 
then  be :  "Units  of  weight ;  units  of  measure- 
ment ;  a  terminal  charge  and  a  rate  per  mile." 
Live  stock  and  articles  of  extraordinary  char- 
acter, as  explosives,  etc.,  to  be  separately  pro- 
vided for,  and  a  proper  difference  allowed  be- 
tween carload  lots  and  smaller  quantities.  No 
deviation  from  general  rule  based  on  the  idea 
of  encouraging  or  discouraging  any  particu- 
lar trade  or  traffic  to  be  permitted  without  ex- 
press government  sanction.  Further  details 
are  omitted  as  inappropriate  here,  where  it  is 
only  designed  to  express  the  general  idea. 

These  ideas  having  been  adopted,  in  sub- 
stance, by  the  commission,  a  report,  leading 
up  to  the  proposed  reform,  was  prepared  by 
Mr.  Doyle,  at  the  request  of  his  associates  ;  and 
to  avoid  hasty  innovation  and  proceed  tenta- 
tively, it  was  proposed  to  require,  at  least, 
only  a  division  of  transportation  rates  into 
a  terminal  and  a  movement  charge.  Mr.  Doyle 
was  convinced  that  this  small  reform  alone 
would  put  an  end  to  discrimination  between 
localities,  and  materially  relieve  the  farming 
interests  from  the  excessive  transportation 
rates,   on   produce,   then   prevailing. 

Mr.  Doyle  said  to  us,  in  his  emphatic  way, 
when  speaking  of  this  subject: 

"The  railroads  scented  the  danger  afar,  and 
rallied  their  lobby  to  the  defense  of  their  pre- 
rogative of  plunder." 

The  bill  proposed  was  amended  in  the  house, 
and  a  substitute  adopted  which  legislated  the 
offending  commissioners  out  of  office,  and 
replaced  them  by  a  single  commissioner, 
charged  with  somewhat  similar  duties.  To 
this  office  the  Governor  appointed  an  assem- 
blyman, and  he,  after  a  year's  service,  was  fol- 
lowed bv  the  Board  of  Railroad  Commissioners, 
created  by  the  constitution  of  1879,  with  the 
State  so  districted,  Mr.  Doyle  asserts,  as  to  give 
to  the  companies  the  assured  control  of  two  of 
the  three,  since  which  time  there  has  been  no 


serious  attempt  at  legislative  reform  of  abuses 
in   railroad  transportation. 

Mr.  Doyle  has  preserved  his  familiarity  with 
the  Latin  classics,  and  acquired  after  leaving 
school  the  French  and  Spanish  languages,  with 
a  reading  knowledge  of  Italian.  These,  with 
habits  of  accurate  observation,  have  served  him 
well  professionally  and  otherwise.  Noting 
while  in  Nicaragua  the  modes  of  legal  proce- 
dure there,  he  was  able  to  reconcile  the  course 
of  proceedings,  in  the  trial  scene  in  the  "Mer- 
chant of  Venice"  with  Shakespeare's  usual  ac- 
curacy on  legal  subjects,  to  which  it  had  been 
regarded  as  an  exception.  This  was  done  in 
a  letter  to  Mr.  Lawrence  Barrett,  published  in 
a  local  magazine,  and  afterwards  reproduced 
in  Shakesperiana.  The  explanation  has  been 
generally  recognized  by  the  legal  profession 
and  by  Shakesperian  students  as  satisfactory. 
and  has  been  incorporated  in  Dr.  H.  H.  Fur- 
ncss'  great  Variorum  edition  of  Shakespeare. 
Dr.  Furness  says  of  the  paper:  "I  have  long 
thought  it  an  extremely  valuable  contribution 
to  Shakespearean  literature,  and  one  which 
never  can,  or  rather,  should  hereafter  be  over- 
looked in  any  critical  edition  of  the  'Merchant 
of  \'enice.'  " 

We  took  occasion  to  draw  a  picture  of  Mr. 
Doyle  in  our  former  work  on  the  "Bench  and 
Bar  of  California,"  to  which  we  will  add  noth- 
ing here,  save  that  he  is  at  his  best  in  the 
statement  of  the  details  of  a  complicated  state 
of  facts,  making  their  order,  connection  and 
sequence  easily  intelligible.  When  associated 
with  other  counsel  he  always  prefered  to  open 
the  case  and  leave  the  summing  up  to  others. 
He  believes  that  cases  are  more  frequently 
wt)u  by  the  opening  than  by  the  closing  argu- 
ment. 

Though  impatient  and  irascible,  he  is  good- 
natured  at  heart,  and  has  materially  aided  many 
young  members  of  the  profession,  who  have 
been  indebted  to  him  for  encouragement,  op- 
l)ortunity  and  guidance.  In  literature  he  has 
a  keen  appreciation  of  the  best  and  his  library 
is  a  repository  of  varied  lore.  He  takes  de- 
light in  Shakespeare  and  has  many  famous 
editions  of  the  master's  works,  as  well  as  of 
ilor.ice  ;ind  Don  Quixote.  Of  the  last  he  pos- 
sesses a  copy  which  may  be  called  unique,  be- 
ing the  Spanish  Academy's  cditio  princcps, 
with  a  mass  of  illustrations,  by  various  de- 
signers, read  into  the  text,  and  enlarged,  where 
necessary,  by  extra  margins,  to  its  size,  so  as 
to  make  up  eight  large  volumes,  beautiful  spec- 
imens of  tlie  work  of  tiie  printer,  illustrator 
and   liinder. 


520 


History  of  the  Bench  and  Bar  of  California. 


Mr.  Doyle  was  married  in  1863  to  Miss  Pons, 
the  daughter  of  a  silk  manufacturer  of  Lyons 
(France)  of  which  city  she  is  a  native.  She 
has  borne  him  five  sons  and  three  daughters, 
the  youngest  of  whom,  Mrs.  Francis  Pope,  is 
recently  deceased.  His  only  brother,  Emmet, 
has  also  lately  gone  over  to  the  majority,  but 
his  sister,  Mrs.  Eugene  Casserly,  still  survives. 
At  the  age  of  nearly  eighty-one  years,  he  passes 
his  declining  days  at  his  country  home  at 
Menlo  Park,  among  his  books  and  vines  and 
fruit  trees,  interested  in  local  improvements, 
current  events  and  current  literature,  which 
he  is  able  to  enjoy  more  amply,  by  the  pos- 
session of  eyes  which,  notwithstanding  sad 
abuse  through  seventy  years,  still  scorn  the 
aid  of  spectacles,  even  for  the  finest  type.  Two 
of  his  sons  are  serving  their  country,  in  an 
humble  way.  one  in  the  navy,  the  other  with 
the  army  in  Manila;  two  others  run  the  vine- 
yard and  the  wine  company,  and  the  youngest, 
Mr.  W.  T.  Sherman  Doyle,  has  lately  been 
admitted  to  the  bar,  where  we  wish'  him  as 
successful  and  honorable  career  as  that  of  his 
father. 

It  is  interesting  at  this  time  to  note  that 
a  long  interview  with  Mr.  Doyle  on  the  sub- 
ject of  the  Nicaragua  Canal  may  be  found  in 
the  San  Francisco  Bulletin  of  July  2,  1891. 


E.  D.  SAWYER. 


This  early-day  lawyer,  legislator  and  dis- 
trict judge  who  is  still  at  the  bar,  studied  law 
in  the  office  of  Miles  Taylor,  a  prominent  law- 
yer of  New  Orleans  in  1847-1850.  After  be- 
ing admitted  to  practice  he  sailed  for  San 
Francisco  January  i,  1851,  via  Cape  Horn.  A 
sea  voyage  of  six  months  recruited  his  health. 
He  remained  only  a  few  weeks  in  San  Fran- 
cisco, and  then  located  about  September  i, 
1851,  at  Mokelumne  Hill,  where  he  made  the 
acquaintance  of  the  Hon.  Charles  Leake,  the 
only  lawyer  then  at  the  "Hill."  We  have 
heard  Judge  Sawyer,  whom  we  have  known 
since  he  was  district  judge  at  San  Francisco 
— a  generation  has  passed  by  since  then — nar- 
rate some  of  his  reminiscences  of  pioneer  law 
practice  in  Calaveras.  Mining  disputes  were 
frequent,  and  all  of  them  were  tried  before  a 
justice  of  the  peace,  and  usually  determined 
by  a  jury  without  regard  to  value.  The  Dis- 
trict Courts,  several  counties  comprising  a  dis- 
trict, held  three  general  terms  a  year  at  the 
county  seats  of  each  county  of  the  district,  but 
at  first  there  was  very  little  business,  and  that 
mostlv  criminal. 


The  most  of  the  other  business  was  local 
and  transacted  in  the  County  Court,  Court  of 
Sessions  and  Justices  Courts.  In  these  latter 
courts,  with  untutored  justices,  many  amusing 
incidents  took  place.  One  day  a  trial  was  go- 
ing on  before  a  justice  of  the  peace,  and  when 
the  plaintiff  rested,  the  defendant  moved  for 
a  non-suit.  The  justice  said  the  defendant 
was  entitled  to  something,  and  he  would  grant 
the  motion.  The  jury  were  discharged  against 
the  protest  of  the  plaintiff,  after  which  the 
justice  was  convinced  that  he  had  erred,  and 
stepping  to  the  door  he  called  back  the  jury- 
men and  informed  them  that  the  court  had 
misspoke  itself,  and  the  trial  proceeded. 

In  another  instance  the  attorney  for  the  de- 
fendant moved  the  court  to  dismiss  an  action 
because  the  summons  was  not  issued  as  pro- 
vided by  statute.  The  justice,  becoming  in- 
dignant about  the  criticism,  ordered  the  young 
legal  light  to  sit  down,  and  denying  the  mo- 
tion, remarked  that  he  frequently  overruled 
the  statute.  While  similar  occurrences  were 
frequent  the  justices  were  honest  men  and 
did  fairly  well  for  a  new  country. 

At  another  time  a  justice  of  the  peace  em- 
paneled a  jury,  and  commenced  the  trial  of 
a  prisoner  for  homicide  because  he  claimed 
there  was  nothing  in  the  statutes  forbidding 
it.  That  was  better  than  being  tried  by  a 
mob  jury  for  murder  under  hangman's  tree, 
which  occasionally  happened. 

In  the  fall  of  1862,  at  San  Andreas,  Mr.  Saw- 
yer was  hastily  sent  for  to  defend  a  man  who 
had  shot  a  gambler  to  death  over  a  quarrel 
about  the  stakes  of  a  card  game.  When  he 
arrived  at  San  Andreas  he  found  a  few  hun- 
dred men  in  great  excitement,  selecting  a  mob 
jury  to  give  the  alleged  criminal  a  fair  trial. 
He  was  soon  introduced  to  his  client.  He  very 
anxiously  inquired  what  he  should  do.  The 
client  replied  that  he  had  friends  enough  to 
resist  the  populace.  Mr.  Sawyer  asked  him 
what  he  had  been  doing.  He  replied :  "De- 
fending myself."  The  lawyer  then  said: 
"There  is  no  fear,  come  out  with  me  and  face 
the  jury."  The  man  followed  his  counsel 
right  out,  and  the  foreman  of  the  jury  intro- 
duced Mr.  Sawyer  to  the  populace  and  the 
jury.  The  advocate  mounted  a  box,  told  them 
he  was  there  to  defend  the  accused,  and  all  he 
asked  was  a  fair  trial ;  and  he  believed  the 
jury  selected  would  give  it.  He  declared  that 
when  a  man  was  sprung  upon  by  an  armed 
man  like  a  wild  beast,  he  must  defend  him- 
self, even  at  the  cost  of  human  life.  That  was 
the  case  of  his  client,  the  man  they  were  trying, 


&■  -^K--  : 


E.  D.  Saivyer 


History  of  the  Bench  and  Bar  of  California. 


523 


and  if  he  could  not  prove  it,  he  was  wiUing 
to  suffer  the  penahy  of  death,  and  they  could 
be  the  executioners.  Then  two  of  the  cm- 
paneled  left  the  jury,  as  they  found  they  could 
not  give  the  defendant  a  fair  trial.  Their 
places  were  supplied,  the  jury  promised  to  be 
just  and  honest  and  act  without  haste  or  pre- 
judice in  their  deliberations,  and  they  were 
conducted  by  the  foreman  to  a  large  white  tree, 
under  whose  unbrageous  limbs  temporary  seats 
had  been  prepared  for  them,  and  where  the 
defendant  was  to  be  executed  if  found  guilty. 
A  ring  was  formed  by  the  assemblage  around 
the  jury,  prisoner  and  attorney,  and  a  man  was 
selected  as  a  prosecutor.  The  latter  was  an 
eminent  jurist,  and  who  for  some  years  after 
adorned  the  bench  of  the  State.  The  killing 
was  admitted,  and  only  one  witness  who  had 
seen  the  deceased  shot  was  called,  and  the  de- 
fendant entered  upon  his  defense  of  justifica- 
tion. After  the  evidence  the  case  was  elo- 
quently and  forcibly  argued  on  both  sides  and 
submitted  to  the  jury  just  as  the  sun  gilded 
the  west  at  the  close  of  a  beautiful  autumn 
day.  They  soon  returned  and  discharged  the 
prisoner.  He  was  overjoyed  at  his  release,  for 
he  knew  he  would  have  been  then  and  there 
hanged  if  found  guilty. 

In  these  days  mining  towns  were  filled  with 
gamblers,  who,  wherever  they  could,  ran  the 
town.  Whenever  one  of  their  number  was 
interfered  with,  the  gamblers  immediately 
flocked  to  his  aid.  In  the  fall  of  1852  a  gam- 
bler, in  a  quarrel  over  a  game,  shot  and  killed 
a  miner.  The  town  was  immediately  under 
great  excitement.  The  gambler  fled.  The  dep- 
uty sheriff  called  upon  the  people  for  assist- 
ance. A  half-dozen  citizens  volunteered  to  as- 
sist him  in  hunting  the  fugitive.  Mr.  Sawyer 
was  of  that  number.  He  went  out  of  town 
with  another  young  man  to  scour  the  gulch. 
Others  struck  out  for  different  places,  as  di- 
rected by  the  deputy  sheriff.  The  assistant, 
with  Mr.  Sawyer,  did  it  alone.  When  half  way 
up  the  gulch  the  fugitive  was  discovered,  ar- 
rested, brought  into  town  and  delivered  to  tlic 
sheriff. 

The  gamblers'  rule  of  Mokcluniiu-  iiiii 
ceased  on  that  day,  and  never  was  resumed. 
Mr.  Sawyer  successfully  followed  his  profes- 
sion in  Calaveras  county  until  1.854.  f"  ^'^S?> 
he  was  a  member  of  the  board  of  supervisors 
of  that  county,  where  he  had  .sonic  iniijortant 
questions  in  determining  public  matters — one 
of  which  was  the  allowance  of  claims.  He  did 
not  vote  for  any  county  expenditure  unless 
the  county  had  received  the  benefit.  The  claims 


of  Slate  census  enumerators  for  services  had 
to  come  before  the  board  of  supervisors  for 
allowance  before  they  could  be  paid  by  the 
State.  Mr.  Sawyer,  being  President  of  the 
board,  objected  to  allowing  them  anything,  and 
lie  and  one  other  formed  a  majority  of  those 
present.  The  claim  was  disallowed  because 
they  had  performed  no  beneficial  services. 
These  political  vagabonds  v/ent  to  the  legisla- 
ture then  in  session,  had  the  law  repealed  al- 
lowing supervisors  in  Calaveras  county  to  pass 
on  their  claims,  received  their  compensation 
from  ilic  State,  and  never  returned  to  the 
county.  This  created  some  excitement  and 
caused  Mr.  Sawyer  to  be  nominated  at  the 
Whig  convention  of  1853  for  State  senator. 
He  was  elected  to  the  senate  in  November, 
1853,  from  the  banner  Democratic  district  of 
the  State.  Soon  after  the  legislature  assembled 
at  Benicia,  the  contest  commenced  as  to  who 
should  be  elected  United  States  senator.  The 
legislature  was  largely  Democratic.  The  great 
question,  negro  slavery,  was  then  agitating  the 
North  and  South.  The  Democratic  party  in 
this  State  immediately  divided  upon  this  con- 
troversy. Hon.  David  C.  Broderick  was  the 
anti-slavery  exponent,  and  Hon.  William  M. 
Ciwin  the  pro-slavery  leader;  and  each  with 
liis  followers  and  partisans  waged  a  bitter  con- 
test. 

This  continued  the  whole  session,  and  all 
other  questions  were  overshadowed  by  it.  No 
elections  took  place  and  but  little  useful  leg- 
islation. Senator  Sawyer  determined  to  retire 
from  politics.  In  June,  1854,  he  left  for  the 
I'^ast.  He  went  to  Washington  City,  saw  the 
great  men  of  the  nation  in  congress  assem- 
])led.  and  then  proceeded  to  Augusta,  Maine, 
where  he  met  his  intended  wife,  a  Miss  Trow- 
bridge, of  Louisiana,  to  whom  he  was  married 
at  the  residence  of  Hon.  Daniel  Pike,  July 
,\\,  1854.  From  Augusta  he  traveled  leisurely 
to  the  Pacific  coast  by  way  of  New  Orleans, 
visiting  his  relatives  and  those  of  his  wife. 
These  halcyon  days,  when  all  was  sunshine 
and  happiness,  soon  passed;  then  came,  at 
San  Francisco  again,  the  realities  of  profes- 
sional life  and  the  struggle  for  a  living.  He 
came  without  friends  or  capital,  but  with 
education  and  character.  He  labored  and  es- 
tal;iislK'd  a  iiome,  practiced  as  an  attorney, 
tirniiy  taking  a  good  position  in  society.  In 
1863  iij  was  a  member  of  the  board  of  edu- 
cation,  and   served   one   term. 

Will-  he  was  in  the  board  of  education  an 
offer  of  $70,000  was  made  for  the  large  school 
lot  owned  by  the  city,  at  the  corner  of  Fifth 


524 


History  of  the  Bench  and  Bar  of  California. 


and  Market  Streets,  having  a  frontage  of  275 
feet  on  Market  Street,  and  the  same  front- 
age on  Fifth  Street.  The  majority  of  the  board 
were  at  first  in  favor  of  the  sale,  but  by  the 
persistent  effort  of  the  minority  a  change  of 
view  was  brought  about.  The  proposition  to 
sell  the  lot  for  a  sum  that  would  be  a  mere 
bagatelle  in  the  near  future,  was  defeated  by 
a  majority  of  one  vote,  and  the  school  de- 
partment still  owns  the  property,  which  is 
worth  at  least  a  million  and  a  half  dollars,  and 
constantly  growing  more  valuable.  Judge  Saw- 
yer not  only  never  received  the  value  of  a 
nickle  for  his  services  as  a  school  director,  but, 
with  John  Bensley  and  Hon.  Nathan  Porter, 
donated  upon  his  retirement  from  ofhce  a  lot 
in  block  No.  127,  on  Potrero — 140x200  feet — 
for  school  purposes.  The  lot  is  still  school 
property  and  schools  will  be  there  before  very 
long. 

Our  friend  was  nominated  and  elected  to  the 
judgeship  of  the  fourth  district  court  in  1863, 
chiefly  through  the  intluencc  of  Hon.  Eugene 
Casserly,  who  for  many  years  was  a  warm 
personal  friend.  Judge  Sawyer  discharged  the 
duties  of  his  office  conscientiously,  according 
to  the  best  of  his  ability  and  to  the  satisfac- 
tion of  the  public.  His  judicial  term  was  six 
years,  ending  with  the  close  of  the  year  1869. 

The  San  Francisco  bar  at  that  period  was 
as  able  as  any  in  the  United  States,  and  the 
magnitude  of  legal  controversies  frequently 
involved  vast  properties,  real  and  personal.  A 
summary  nf  the  important  cases  tried  and  de- 
termined by  Judge  Sawyer  during  his  judicial 
term  would  occupy  too  much  space.  He  had 
the  same  experience,  toil  and  trouble  as  other 
judges  who  have  served  their  fellowmen  in 
courts  of  general  jurisdiction.  The  labor  is 
arduous  and  the  compensation  small  compared 
with  the  responsibility.  He  left  a  lucrative 
practice  to  go  on  the  bench,  and,  after  ex- 
perience in  both  capacities,  he  preferred  to  be 
at  the  bar — hence  he  declined  a  renomination. 
and  at  the  end  of  his  term  resumed  the  prac- 
tice of  law.  Judge  Sawyer  delivered  the  ad- 
dress at  the  Mechanics'  Insliluto  Fair  in  San 
Francisco.  August  10,  1865.  and  was  orator  of 
the  day  on  July  4.  1871.  In  1886  he  was  the 
Republican  candidate  f(jr  attorney-general.  He 
is  a  member  of  the  First  Congregational 
church,  and  has  very  often  responded  to  calls 
to  address  the  Y.  M.  C.  A.,  and  other  relig- 
ious bodies.  He  is  still  robust  in  health,  and 
busy  and  alert  in  his  ])rofession.  surrounded 
with  comforts  of  life  and  a  happy  family. 


JAMES   T.    BOYD. 

This  veteran  is  closing  the  fiftieth  year  of 
unbroken  prosperity  at  the  San  Francisco  bar. 
He  is  a  native  of  New  York  city,  and  was 
born  November  10,  1825,  in  a  fashionable 
boarding-house  on  Liberty  street,  next  door  to 
the  Old  Dutch  church,  on  the  corner  of  Nas- 
sau street.  His  father  was  Theodore  C.  Boyd, 
a  merchant.  Before  the  Revolution  this  house 
was  a  great  sugar  house.  During  the  war  the 
British  used  it  as  a  military  prison.  Mr.  Boyd's 
ancestry  was  Scotch  (Kilmarnock),  English 
(Graham  and  Cummings),  and  Irish  (Nu- 
gent). His  paternal  grandparents  were  natives 
of  New  York,  his  maternal  grandfather,  of 
New  England.  He  graduated  in  1840  from 
the  academy  in  West  Bloomfield,  New  Jersey, 
presided  over  by  William  K.  McDonald,  Esq., 
afterward  a  distinguished  lawyer  of  Newark. 

It  was  at  President  McDonald's  suggestion 
that  Mr.  Boyd  read  law.  At  the  invitation  of 
his  maternal  aunt,  Mrs.  N.  T.  Rochester,  he 
went  to  Rochester  City,  N.  Y.,  and  entered  the 
law  office  of  Smith  &  Rochester.  While  there 
E.  Darwin  Smith,  at  the  urgent  solicitation 
of  Chancellor  Walworth,  accepted  the  office 
of  clerk  of  the  Eighth  Chancery  Circuit,  and 
Mr.  Boyd  became  a  deputy  in  his  office.  In 
this  position  he  attracted  the  favorable  con- 
sideration of  Vice-Chancellor  Whittlesy ;  won 
liiat  of  all  the  leading  lawyers  of  the  circuit, 
and  acquired  a  valuable  knowledge  of  chan- 
cery practice.  He  was  admitted  to  the  bar  of 
the  Supreme  Court  of  the  state  of  New  York 
at  ihe  October  term,  1846,  held  at  Rochester; 
and  about  the  same  time  to  that  of  the  Court 
of  Chancery  by  the  Vice-Chancellor.  He  prac- 
ticed law  in  New  York  for  a  few  years,  and 
came  to  California  in  1851,  arriving  on  the 
steamship  Oregon  in  September.  Here  he  was 
admitted  to  the  bar,  and  joined  the  law  firm  of 
Janes  &  Noyes  in  San  Francisco.  His  ex- 
perience in  the  East,  and  a  natural  aptitude 
for  such  investigation,  induced  him  soon  after 
his  arrival  to  turn  his  attention  to  the  study 
of  titles  to  real  property,  and  he  soon  ac- 
quired, as  John  R.  Jarboe  did  later,  a  wide 
reputation  for  skill  and  ability  in  that  branch 
of  the  profession. 

In  1854  the  law  firm  of  Janes,  Doyle,  Barber 
&  Boyd  was  formed ;  followed  by  that  of  Janes, 
Lake  &  Boyd ;  subsequently,  in  i860,  by  Boyd 
&  Morrison  (late  chief  justice)  ;  Crane  & 
Boyd;  McCullough  (formerh^  attorney-gen- 
eral) &  Boyd;  Cope  (formerly  Supreme  Court 
justice)  &  Boyd,  in  1876;  and  Cope,  Boyd  & 
Fifield.     When  Judge  Cope  retired  a  few  years 


James  T.  Boyd 


History  of  the  Bench  and  Bar  of  California. 


527 


since  the  present  firm  of  Boyd  &  Fificld  suc- 
ceeded to  the  business. 

Mr.  Boyd  has  never  sought  or  held  office  in 
California,  except  that  he  was  a  notary  public 
for  a  few  months,  accepting  the  appointment 
at  the  request  of  a  client,  the  late  Michael 
Reese ;  and  in  1880  he  was  a  member  of  the 
board  of  freeholders  to  prepare  a  charter  for 
San  Francisco. 

Mr.  Boyd  is  a  bachelor.  He  still  continues 
the  active  practice  of  his  profession,  and,  not- 
withstanding his  advanced  years,  enjoys  pro- 
fessional work.  His  eye  is  bright,  and  kindles 
yet  at  the  sight  of  an  abstract  of  title.  He 
has  been  personally  very  successful  in  real 
estate  litigation  and  in  matters  of  probate,  and 
has  accumulated  a  considerable  fortune. 

Alexander  Boyd,  a  younger  brother  of  James 
T.  Boyd,  was  also  one  of  the  earliest  prac- 
titioners at  the  San  Francisco  bar.  He  was 
born  in  New  York  city  in  1832,  arrived  in  San 
Francisco  early  in  1851,  read  law  with  Janes, 
Doyle,  Barber  &  Boyd,  was  admitted  to  the  bar, 
and  died  after  a  few  years  active  practice,  leav- 
ing some  estate.  He  was  plaintiff  in  the  oft- 
cited  case  of  Boyd  vs.  Blankman,  reported  in 
29th  California,  at  page  19,  and  in  which  it 
was  held  that  an  heir  retains  an  assignable 
interest  in  land  bought  by  an  administrator 
at  his  own  sale — that  an  administrator  buying 
at  his  own  sale  is  trustee  for  the  heir. 

This  decision  is  elaborate,  and  written  by 
Justice  A.  L.  Rhodes,  now  a  judge  of  the  Su- 
perior Court  at  San  Jose.  It  was  rendered  in 
October,  1865,  but  the  case  ran  back  to  1851, 
and  Mr.  Boyd  died  before  the  final  determina- 
tion. 


A.  J.  GUNNISON. 


Andrew  Joseph  Gunnison  has  been  a  busy 
man  at  the  San  Francisco  bar  since  the  year 
1853.  It  was  in  1851  that  he  came  to  our  chief 
city  from  Massachusetts,  where  he  had  been 
reared.  His  native  state  is  New  Hampshire, 
and  he  can  trace  his  American  ancestry  back 
to  1622.  He  was  admitted  to  the  bar  of  the 
Supreme  Court  of  Massachusetts  in  1847,  and 
practiced  law  at  Lowell  until  he  left  for  Cali- 
fornia. Soon  after  his  arrival  at  San  Fran- 
cisco he  went  to  Mariposa  county,  and  worked 
in  the  placer  mines  with  the  crude  implements 
of  the  time — the  pan,  shovel  and  rocker.  After 
a  year  and  a  half  had  been  spent  he  took  up 
his  permanent  residence  at  San  Francisco,  and 
resumed   law   practice.      His    wife   came    from 


the    East    and   joined   him    in   the    same   year 
1853. 

In  his  early  practice  here  Mr.  Gunnison  was 
associated  with  two  gentlemen  who  became 
prominent  in  the  profession  and  in  public  life, 
namely,  Samuel  H.  Parker  and  Samuel  Cowles. 
Mr.  Parker  was  afterwards  a  state  senator, 
and  was  postmaster  during  President  Lincoln's 
administration.  He  was  a  distinguished  Odd 
Fellow ;  an  Odd  Fellows'  lodge  at  San  Fran- 
cisco is  named  after  him,  and  his  monument 
stands  in  Odd  Fellow's  cemetery.  Samuel 
Cowles  became  Police  judge,  and  later  County 
judge.  Mr.  Gunnison  was  the  senior  member 
of  this  firm  until  it  was  dissolved  in  i860.  He 
then  formed  a  partnership  with  Samuel  G. 
Beatty,  which  lasted  until  the  close  of  1872. 
His  next  association,  that  with  Mr.  A.  G. 
Booth,  was  begun  in  1873.  and  still  continues. 
Mr.  Walter  J.  Bartnctt  became  a  member  of  the 
firm  in  1895,  and  the  name  has  since  been  "Gun- 
nison, Booth  &  Bartnett."  The  firm  has  always 
carried  on  a  general  business  in  large  volume. 
Street  railroad  companies  have  been  among 
their  principal  clients,  and  of  late  years  they 
have  conducted  the  settlement  of  many  large 
estates  of  deceased  persons,  among  these  be- 
ing the  estate  of  William  P.  Fuller  of  Whittier, 
Fuller  &  Company. 

Mr.  Gunnison  was,  of  course,  residing  in 
San  Francisco  in  the  period  of  the  great  Vigi- 
lance Committee.  He  was,  like  Judge  M.  C. 
Blake  and  a  large  number  of  lawyers,  proba- 
bly a  majority  of  the  bar.  in  hearty  accord 
with  that  organization.  During  the  Civil  War 
he  contributed  generously  to  the  sanitary  fund, 
wliich  fund  was  swelled  so  enormously  by  the 
donations  of  Californians. 

In  Julv.  1862.  Mr.  Gunnison  took  passage 
on  the  steamship  Golden  Gate  for  a  trip  to 
the  eastern  states,  by  way  of  the  isthnuis.  The 
ship  was  burned  and  200  lives  were  lost  on 
the  Mexican  coast.  The  ship  was  run  shore- 
ward and  groimded.  This  was  the  great  ca- 
lamity spoken  of  in  "The  Story  of  an  Old 
Bank  Deposit,"  which  appears  in  this  History. 
Mr.  Gunnison  jumped  overboard  and  swam 
ashore.  Rcturni..qf  to  San  Francisco  to  start 
again  on  tiie  trip,  he  found  that  the  Union 
Republican  party  had  nominated  him  for  the 
assembly.  He  was  successful  with  his  ticket 
at  the  ensuing  election,  and  served  at  the  ses- 
sion beginning  January  5.  and  ending  April  26, 
iS()3. 

Mr.  Guimison  is  of  calm,  judicial  tempera- 
ment, and  strong  in  mind  and  body  in  the 
evening  of  a   prosperous,   well-spent   life.     He 


528 


History  of  the  Bench  and  Bar  of  California. 


registered  as  a  voter  on  May  24,  1866,  as  being 
(lien  of  tiie  age  of  forty-three  years. 


LAWRENCE  ARCHER. 

Lawrence  Archer,  the  Nestor  of  the  San 
Jose  bar,  as  we  had  occasion  to  call  him  as 
long  ago  as  1882,  kept  occupied  with  the  duties 
and  honors  of  the  profession  until  1900,  when 
he  retired.  He  was  born  and  reared  in  South 
Carolina.  He  is  now  80  years  of  age.  His 
father,  to  whose  memory  he  is  very  affection- 
ately attached,  was  a  merchant  and  farmer, 
belonging  to  the  line  of  Virginia  Archers,  as 
distinguished  from  the  Maryland  branch  of 
the  family.  The  stock  is  English.  Lie  lost 
his  wife  when  his  son,  our  subject,  was  15 
years  old,  and  about  the  same  time,  after  a 
successful  business  career,  was  overwhelmed 
by  reverses  of  fortune,  and  was  unable  to 
carry  out  his  cherished  intention  to  give  his 
son  a  complete  education.  All  is  well  that 
ends   well,   however — as   we  shall   see. 

Professor  Leverett,  a  school  teacher  at  An- 
derson, S.  C,  advised  young  Archer  to  pursue 
the  classics.  He  laoned  the  young  man  books, 
intstructed  him  therein,  and  employed  him  as 
assistant  teacher  to  onal)lt'  him  to  pay  his 
way.  It  was  a  hard  struggle,  but  one  that  was 
marked  by  exceptional  assiduity,  for,  in  eigh- 
teen months  the  student-teacher,  or  teacher- 
student,  had  mastered  books  that  usually  re- 
quire a  four  years'  course.  What  with  the 
kindness  of  Professor  Leverett,  the  receipts  of 
little  sums  from  the  sheriff  for  serving  papers, 
etc.,  and  the  fact  that  he  made  his  home  with 
a  married  sister,  our  young  friend  got  through 
in  good  shape. 

A  benefactor  offered  him  the  means  to  go 
to  college.  The  offer  was  gratefully  accepted, 
and  the  institute  agreed  upon  was  the  Uni- 
versity of  Virginia.  The  fates  so  decreed 
that  he  should  remain  there  but  si.x  months; 
the  ups  and  downs  of  life  are  not  confined 
to  California,  as  some  imagine.  Young  Arch- 
er's friend  was  ruined  financially,  and  sud- 
denly, and  the  student  returned  home  to  study 
in  another  line — and  he  now  entered  upon  his 
life  work,  and  a  long  and  prosperous  life  work 
it  has  been. 

He  commenced  the  study  of  law  when  he 
was  twenty  years  old,  in  .^bbieville.  South 
Carolina.  A  year  later  he  w  enl  to  Mississippi, 
which  seemed  to  him  then  to  be  the  verge  of 
creation.  It  was  in  the  year  1841,  and  in  a 
season  of  great  commercial  depression.  Judge 
Baldwin's  "flush  times"  were  even  tlicn  a 
thing  of  the  past.     However,  although   he  did 


not  linger  long,  it  was  there  that  Judge  Archer 
got  his  first  start.  He  was  admitted  to  the 
bar  in  Mississippi,  and  practiced  in  Yazoo 
county   for  about   two  years. 

The  opening  of  Judge  Archer's  professional 
career  was  most  brilliant  and  auspicious.  He 
was  in  a  frontier  community,  but  his  habits 
were  correct.  His  first  case  involved  the  per- 
sonal liberty  of  a  colored  man.  Under  the 
Mississippi  laws  at  that  date,  a  free  negro 
who  was  found  within  the  state,  without  license 
or  guarantee,  could  be  apprehended  and  sold, 
the  term  of  his  involuntary  servitude  under 
the  sale  not  to  exceed  two  years.  A  certain 
negro  was  thus  sold,  and  a  lawyer  named 
Crenshaw  sued  out  a  writ  of  habeas  corpus 
on  his  behalf.  Crenshaw  asked  young  lawyer 
Archer  to  argue  the  case,  and  the  latter  did  so. 
The  court  held  that  the  negro  had  been  rightly 
and  lawfully  sold,  and  was  rightfully  and  law- 
fully m  bondage.  Crenshaw  then  abandoned 
the  case.  Under  the  same  state  law  a  negro 
who  had  been  sold  unlawfully  or  irregularly, 
could  maintain  suit  for  damages  against  his 
purchaser.  Mr.  Archer  instituted  such  a  suit 
in  the  bondman's  name  and  the  case  was  tried 
before  a  jury  of  slaveholders.  They  brought 
in  a  verdict  for  the  plaintiff  and  he  was  free 
again. 

This  brought  the  young  attorney  some  im- 
portant business,  and  he  had  become  estab- 
lished when  he  determined  to  go  farther 
west.  He  located  next  at  St.  Joseph,  Mo.  He 
was  well  received  there,  and  acquired  business 
rapidly.  The  Governor  appointed  him  district 
attorney  to  fill  a  vacancy.  He  accepted  and 
was  at  the  ensuing  election  chosen  to  that 
office  for  a  full  term.  One  of  his  predeces- 
sors in  the  same  office  was  Hon.  Peter  H. 
Burnett,  who  afterwards  was  the  first  Gover- 
nor of  California.  The  judge  of  the  District 
Court  having  made  himself  obnoxious  to  the 
bar  by  his  partiality,  despotism,  etc.,  and  be- 
ing nominated  for  re-election,  Mr.  Archer  was 
put  in  the  field  against  him,  as  the  candidate 
of  the  bar.  The  sitting  judge  withdrew  from 
the  contest,  whereupon  Mr.  Archer  withdrew 
also,  saying  tliat  tlie  object  of  the  bar  had  been 
accomplished.  A  new  man  was  elected.  This 
was  in  1850,  when  Mr.  Archer  was  29  years 
old. 

Our  subject  came  to  California  in  1852. 
settling  first  at  Sacramento.  He  was  getting 
into  a  good  business  when  the  great  fire  of 
November,  '52,  drove  him  away.  After  a  stay 
of  two  months  in  San  Francisco  he  went  to 
San  Jose,  and  in  that  city  he  has  resided  and 
followed  the  profession  steadfastly  since  Jan- 


History  of  the  Bench  and  Bar  of  California. 


529 


uary,  1853.  Al  first  lie  figured  in  criminal 
suits.  Gradually  he  worked  his  way  into  great 
land  cases.  Chief  among  these  latter  were 
Touchard  vs.  Singleton,  involving  the  Chabolla 
grant  of  10,000  acres  in  Santa  Clara  county; 
and  Miller  vs.  Dale,  a  contest  between  two  ex- 
tensive land  grants  near  Gilroy,  in  the  same 
county.  It  was  about  1859  that  JMr.  .Yrcher 
found  himself  with  a  murder  case  on  his 
hands  just  before  the  close  of  a  term  of  the 
District  Court.  He  had  been  remarkably  suc- 
cessful with  his  cases  throughout  the  term. 
Messrs.  Wallace  and  Ryland  were  associated 
with  him,  and  they  suggested  that  the  murder 
case  be  allowed  to  go  over  to  the  ne.xt  term. 
"I  feel,"  said  Mr.  Archer  to  his  associates, 
"that  my  luck  has  not  been  exhausted.  We 
will  try  the  case."     They  tried  it  and  won  it. 

One  Reddick  charged  a  man  named  Paige 
with  stealing  the  former's  cows.  Paige  sued 
Reddick  for  heavy  damages  for  slander.  On 
the  trial.  Mr.  Archer,  representing  Reddick. 
in  his  statement  to  the  jury  said.  ''Gentlemen, 
if  you  think,  from  the  evidence,  when  you  shall 
have  heard  all  of  it.  that  the  plaintiff  is  not 
guilty  of  grand  larceny,  I  hope  you  will  bring 
in  a  verdict  against  my  client  for  the  full 
amount  of  damages  prayed  for." 

Judge  Wm.  T.  Wallace,  who  was  present, 
declared  that  this  was  the  boldest  act  on  the 
nart  of  an  advocate  that  he  had  ever  witnessed. 
A  verdict  was  rendered  for  the  defendant. 

Mr.  Archer  was  elected  County  Judge  of 
Santa  Clara  county  in  1868.  Tie  had  been 
used  to  the  title  of  "Judge,"  from  boyhood. 
He  would,  as  a  youth,  sit  quietly  and  listen 
attentively  to  whatever  was  under  discussion, 
in  the  family  circle,  or  the  school,  or  the  stor^-, 
and  when  all  others  had  got  through,  he  would 
say  a  few  weighty  words  concluding  the  wliol.- 
matter.  This  habit  of  summing  u])  won  for 
him  the  title  of  "Judge,"  in  his  palmetto  town, 
when   he  was  yet  a  little  boj-. 

The  Judge  resigned  his  seat  on  the  bencii 
in  1 87 1.  In  that  year  he  ran  for  congress 
on  the  Democratic  ticket  against  Gen.  S.  O. 
llougbton.  and  was  defi'ated.  lie  was  a  mem- 
l)er  of  the  assembly  at  the  session  of  1875-7^), 
and  was  chairman  of  the  committee  tm  corj)o- 
rations.  In  1878  he  was  elected  mayor  of  San 
Jose  and  served  out  his  term.  That  was.  we 
believe,   his   last   official   service. 

'I  he  following  which  we  wrote  of  the  Judge 
in    1882.   we   understand   still   holds   true: 

"In    1854  Judge   Archer   built    the   best    resi 
deuce  in   San  Jose.     He  built,  and  still  owns, 
the  fine  building  at  the  principal  business  cor- 
ner,   in    which    he   has   his   office.     Jnsl    within 
the    cilv    limits    he    has    a    noble    and    fruitful 


farm  of  160  acres.  His  cherry  orchard,  once 
the  finest  in  the  State,  is  still  productive.  He 
prunes  with  his  own  hands,  personally  attends 
to  the  cultivation  of  his  land,  and  is'annually 
rewarded  not  only  with  luscious  fruits  and 
fragrant  flowers,  but  substantial  grain." 

The  Judge  married  at  St.  Joseph.  Mo.,  when 
be  was  29  years  old,  Miss  Louisa,  daughter 
of  Dr.  ]\rartin.  of  that  place.  The  lady  died 
at  San  Jose  now  many  years  ago.  A  boy  of 
seven  vears,  of  this  union,  was  lost,  and  a 
daughter,  is  living.  In  1870  the  Judge  mar- 
ried Miss  Alice  Bethell,  a  lady  who  was  then 
on  a  visit  to  San  lose.  There  are  two  sons 
of  this  marriage.  One  of  these.  Mr.  Leo  B. 
Archer,  is  a  lawyer  and  was  for  some  years 
in  partnership  with  his  father  until  the  lat- 
ter's  retirement,  since  which  time  he  has 
been   alone   in   the  practice. 


CORNELIUS  COLE. 


Cornelius  Cole  was  born  at  Lodi,  Seneca 
county,  New  York,  September  17,  1822,  the 
seventh  of  twelve  children.  His  paternal  an- 
cestors were  natives  of  New  Jersey,  of  Eng- 
lish origin,  mingled  in  marriage  wih  the  Ger- 
man family  of  \an  Zant.  His  maternal  an- 
cestors were  also  English,  named  Townsend, 
joined  in  marriage  with  the  family  of  Ganong. 
.\s  the  time  of  the  arrival  of  any  is  at  present 
unknown,  all  must  have  come  to  America  at 
an  early  date.  They  were  generally  farmers 
and  thrifty  citizens,  the  later  generations  re- 
siding near  Townsendville.  New  York,  a  small 
village  named  for  his  grandfather,  its  first  set- 
tler. A  few  months  later  followed  his  ma- 
ternal grandfather,  who  settled  near  by,  .md 
here  these  sturdy  pioneers  battled  with  adver- 
sity in  the  wilds  of  their  forest  home,  con- 
ipiering  all  opposition  by  the  same  indomita- 
i)le  perseverance  and  e.irnest  efTort  that  has 
characterized  their  descendants,  and  especially 
the  subject  of  this  sketch.  Here  was  passed 
the  hitter's  earlier  years,  though  surrounded 
by  scenes  very  ditTerent  from  those  with  which 
bis  ancestors  bad  been  t'anuliar  :  the  howls  of 
wolves  h.id  given  place  to  ibe  "church-going 
bell."  the  gloi>my  savage  .and  the  wandering 
liunlir  b.id  been  chan.ged  as  by  a  magician's 
w.iiui.  uMo  ;i  circle  of  society,  justly  celebrated 
I  lull.  ;uid  pleasantly  remembered  for  its  purity, 
intelligence  and  excellence.  .\ot  mn-.sed  in 
the  l.ip  of  we.ilth,  nor  \el  iiinchcd  by  poverty. 
Iiis  simmers  were  siieni  in  .assisting  his  father 
in  the  labors  of  the  farm,  .-md  his  winters  in 
attend.iuce  upon  the  district  school,  where  he 
was  early  distinguished   for  his  proficiency  in 


530 


History  of  the  Bench  and  Bar  of  California. 


mathematics.  Later,  winters  were  devoted  to 
teaching  school  in  neighboring  districts,  and 
thus  in  part  he  earned  the  means  to  complete 
a  classical  education,  upon  which  he  had  long 
been  determined. 

A  limited  practice  in  the  art  of  surveying 
also  aided  him  somewhat  in  his  efforts  at 
self-reliance.  For,  to  his  credit  be  it  said, 
his  desire  to  help  himself  and  thus  allow 
the  resources  of  his  father  to  extend  to  the 
education  of  his  younger  sisters,  was  the  mo- 
tive power  of  his  actions,  rather  than  the 
present  inability  of  his  father's  means  to  sup- 
ply him.  His  first  winter  away  at  school  was 
spent  in  the  academy,  at  Ovid,  Seneca  county, 
whence,  though  some  seven  miles  from  home, 
his  drafts  for  board,  though  not  the  highest, 
were  always  duly  and  promptly  honored  ;  not 
on  some  I)ank,  but  upon  his  mother's  well- 
stocked  cellar ;  as,  for  the  sake  of  economy, 
he  "boarded  himself,"  as  the  phrase  goes.  Viv- 
idlj'  does  the  writer  remember  the  Monday 
mornings,  when  about  to  leave  for  school,  the 
worthy  matron  would  insist  on  absolutely 
loading  the  sleigh  with  stores  of  solid  viands, 
regardless  of  her  son's  smiling  remonstrances, 
and  the  last  article  was  generally  a  few  mince 
pies,  or  a  basket  of  apples.  And  well  does  he 
remember  the  glow  of  love  and  pride  that 
flushed  the  broad  brow  of  the  mother,  and 
beamed  so  kindly  from  her  moist  eyes,  as  she 
smiled  a  good  bye  to  her  son  in. the  distance. 
Who  can  estimate  the  effect  of  such  a  mother's 
affection  on  a  young  man's  future?  Upon 
the  subject  of  this  sketch  it  has  borne  its 
fruits.  Early  manifesting  a  fondness  for  learn- 
ing, being  of  a  thoughtful  and  studious  dis- 
position, he  soon  took  place  among  the  first 
for  good  conduct  and  ability. 

Alter  leaving  Ovid,  he  entered  the  cele- 
brated Genessee  Wesleyan  Seminary,  at  Lima, 
New  York,  where  he  vigorously  pursued  his 
course  of  study,  taking  active  part  in  the  lit- 
erary societies,  and  obtaining  at  that  early  age 
a  good  reputation  as  a  sound  debater  and  logi- 
cal reasoner,  rather  than  as  a  celebrity  in  high- 
sounding  periods  and  classical  allusions.  His 
efforts  were  directed  rather  to  demonstrate 
the  truth  and  value  of  a  position,  than  to 
tickle  the  ear  of  the  multitude.  Having  ac- 
ceptably and  thoroughly  prepared  himself  for 
college,  he  entered  the  Wesleyan  University  of 
Middletown,  Connecticut,  whence,  after  three 
years  of  collegiate  life,  he  graduated  with 
hor^r.  While  here  the  writer  was  his  room- 
mate, the  last  year  of  his  college  life,  and  many 
personal  incidents  occurred,  now  dimly  shad- 


owed by  time.  They  peep  out  from  the  dark 
curtain  of  past  memories,  too  faint  in  outline 
for  even  a  willing  pen  to  portray,  but  often 
the  subject  of  pleasant  musing.  At  the  close 
of  the  first  term,  we  found  our  funds  running 
alarmingly  short.  An  investigation  showed 
that  the  senior  member  of  the  firm,  and  in 
consequence  purse-bearer,  had  made  very  fre- 
quent investments  in  loans  to  impecunious  stu- 
dents, which  proved  very  generally  perma- 
nent, and  necessitated  extreme  economy  for 
some  time  to  come.  This  was  accomplished 
by  hiring  an  old  woman  to  cook,  and  buying 
our  food  in  bulk;  even  yet,  a  pang  of  regret 
comes  at  the  recollection  of  a  tub  of  butter 
purchased  cheap,  but  only  superficially  good. 
Its  depths  were  strong  as  Homer's  heroes.  The 
answer,  too,  of  our  butcher,  to  a  remonstrance 
against  tough  beef,  "that  we  didn't  buy  much, 
and  we  wanted  it  to  last,"  did  not  appear  half 
as  witty  then  as  it  does  now.  After  awhile 
the  writer,  as  junior  member,  was  compelled  to 
carry  the  money,  from  the  fact  that  an  ina- 
bility to  say  "No"  seemed  chronic  with  his 
senior,  and  the  two  students  were  consequently 
enabled  to  board  again.  At  the  time  of  the 
graduating  class  at  the  house  of  President  Olin, 
the  Rev.  Doctor  asked :  "Mr.  Cole,  what  do 
you  purpose  to  do?"  The  answer  was:  "I 
intend  to  study  law,  sir !"  "Well,"  said  the 
doctor,  "a  man  may  be  a  good  lawyer  and  a 
good  Christian,  but  it's  a  pretty  tight  squeeze." 
After  graduating,  the  law  student  was  for 
some  time  in  the  office  of  Hon.  William  H. 
Seward,  at  Auburn,  New  York,  where  he  was 
admitted  to  the  bar  of  the  Supreme  Court  of 
the  state  of  New  York,  May  i,  1848.  In  1849 
he  started  overland  to  California,  arriving 
there  in  July  of  that  year,  having  suffered  se- 
vere hardships  upon  "the  plains."  After  min- 
ing some  months  in  El  Dorado  county,  he 
removed  to  San  Francisco,  where  he  engaged 
in  the  practice  of  his  profession  about  two 
years.  He  then  removed  to  Sacramento,  where 
he  practiced  over  ten  years. 

While  in  Sacramento  he  was  one  of  the  first 
and  most  prominent  organizers  and  supporters 
of  the  Republican  party,  when  Republicanism 
was  sufficient  cause  for  personal  injury  and 
unlimited  abuse  of  its  advocates,  of  which  he 
received  a  full  share,  including  personal  threats 
and  persistent  efforts  to  injure  his  business. 
Much  of  the  stibsequent  success  of  Republican- 
ism is  doubtless  due  to  his  persistent,  fearless 
and  honest  support  in  those  hours  of  trial. 
He  was  defeated  as  a  candidate  for  clerk  of 
the  Supreme  Court  of  California,  in  1856.  dur- 


History  of  the  Bench  and  Bar  of  California. 


531 


ing  whicli  year  lie  edited  and  publislied  tlie 
Sacramento  Daily  Times,  the  leading  Repub- 
lican paper  in  the  State,  in  the  Presidential 
contest  then  pending.  He  was  district  attorney 
for  the  city  and  county  of  Sacramento  in  1859, 
i860  and  1861.  He  afterwards  resided  a  year 
in  Santa  Cruz.  California,  still  engaged  in  his 
profession. 

He  was  married  January  6.  1853,  to  Miss 
Olive  Colegrovc,  of  Trumansburg,  Tompkins 
county,  New  York,  an  estimable  lady,  with 
whom  he  has  since  lived  in  great  domestic 
happiness,  the  union  being  blessed  with  nu- 
merous offspring. 

In  1863  Mr.  Cole  was  elected  to  congress  by 
ballot  through  the  whole  State,  receiving  64.- 
985  votes.  He  served  in  the  thirty-eighth  con- 
gress, on  the  committees  on  postofifices  and 
post  roads,  and  Pacific  Railroad.  He  intro- 
duced and  carried  through  congress  the  im- 
portant bill  establishing  a  steam  mail  line  to 
China  and  Japan,  and  several  oilier  prominent 
measures. 

In  December.  j866.  Mr.  Cole  was  elected  to 
the  United  States  senate,  to  succeed  Hon. 
James  A.  McDougall,  receiving  on  first  ballot 
in  Republican  caucus  sixty  votes  to  thirty- 
one  cast  for  Aaron  A.  Sargent,  and  on  first 
ballot  in  joint  legislature,  ninety-two  votes 
against  twenty-six  for  W.  T.  Coleman,  the 
Democratic  candidate.  He  entered  the  senate 
March  4,  1867,  and  served  on  committees  for 
appropriations,  claims,  manufactures,  postof- 
fices  and  post  roads  and  revision  of  laws. 

As  will  be  inferred  from  the  above,  Mr. 
Cole's  peculiar  characteristics  through  a  long 
and  honorable  career  were  unswerving  in- 
tegrity of  action  and  intention,  tenacity  of  i)nr- 
pose,  a  contempt  for  wealth  anu  its  influences, 
a  strong  sense  of  justice,  and  fidelity  in  friend- 
ships. Domestic  and  temperate  in  habit,  and 
modest  in  ambition,  his  honors  have  been 
thrust  upon  him,  rather  than  jjlucked  down  by 
a  bold  hand. 

The  foregoing  was  written  in  1870  by  a  life- 
long friend  of  Mr.  Cole  and  appeared  in  our 
"Representative  Men  of  the  Pacific,"  pub- 
lished in  that  year.  We  only  have  to  add 
that  Mr.  Cole's  senatorial  term  ended  March 
4,  1873,  when  he  was  succeeded  by  Aaron  A. 
Sargent.  He  returned  to  California  and  en- 
gaged in  the  practice  of  law  in  San  Francisco. 
While  so  occupied  liis  family  lived  on  land 
owned  by  him  a  few  miles  from  Los  Angeles, 
where  a  beautiful  settlement  called  Colegrove 
has  since  sprung  up.  In  1888  he  joined  them 
there,   and   followed   law   practice   in   Los   .\n- 


geles.  A  few  years  later  he  retired  from  the 
profession.  He  has  several  grown  children, 
one  of  them  being  Hon.  Willoughby  Cole,  of 
whom  a  notice  appears  on  another  page.  The 
ex-Senator  and  his  good  wife  are  in  excellent 
health,  and  living  in  ease  and  comfort  in 
their   fine   home   at   Colegrove. 


S.  O.  HOUGHTON. 

Colonel  Sherman  Otis  Houghton,  an  eminent 
member  of  the  California  bar  for  forty  years, 
first  at  San  Jose,  and  latterly  at  Los  Angeles, 
has  a  long  American  ancestry.  The  first  of 
the  line,  John  Houghton,  came  from  England 
in  1635,  landing  in  Boston,  at  the  age  of  four 
years.  A  cousin  of  his  had  come  from  Eng- 
land a  few  years  earlier,  and  it  is  supposed 
that  John,  whose  father  was  not  with  him, 
was  sent  to  join  his  cousin,  whose  name  was 
Ralph  Houghton.  Ralph  and  John  were 
among  the  founders  of  Lancaster.  Massachu- 
setts. John  died  in  1684.  From  him,  through 
his  fourth  son,  Benjamin,  Colonel  Houghton  is 
descended.  Benjamin  was  born  in  1668.  His 
third  son.  Benjamin,  Jr.,  was  father  of  Abijah 
Houghton,  who  was  born  in  I7_'3.  Abijah's 
second  son  was  Abijah,  Jr.,  born  in  1747.  He 
married  Mary  Sawyer,  and  died  in  183 1.  Abi- 
jah Otis  Houghton  was  the  offspring  of  this 
union,  born  at  Sterling,  Massachusetts,  June 
4,  1796.     This  was  Colonel  Houghton's  father. 

Both  Benjamin  Houghtons  were  American 
soldiers  in  the  War  of  the  Revolution,  and 
were  among  the  "minute  men"  of  Lexington. 
The  second  Benjamin,  at  the  age  of  sixteen, 
was  in  the  battle  of  Bunker  Hill,  in  his  fa- 
ther's company,  and  was  there  wounded  twice, 
and  recovering  from  his  wounds,  enlisted 
again. 

Colonel  Houghton's  grandfather  on  his 
mother's  side  was  also  a  Revolutionary  soldier. 
His  (the  Colonel's)  mother  was  Eliza  Ferrand. 
born  at  Hanover,  Morris  county.  New  Jersey, 
July  4,  1793.  She  was  of  Huguenot  ancestry, 
her  family  belonging  to  a  Huguenot  colony 
which  settled  in  northern  Now  Jersey,  which 
ihcy  purchased  from  the  Duke  of  York,  the 
original  grantee  of  that  region  from  the  Brit- 
ish crown.  Pile  Colonel's  father,  before 
named,  we  may  add,  was  a  printer  in  his 
youth,  and  .iftiTwanls  was  editor  of  various 
newspaiiers,  among  them  being  the  Orange 
County  Gacctlr,  published  at  Goshen.  New 
^'ork.  He  was  there  initiated  a  Mason  in  June, 
1818. 

Colonel    1  loiigliti^n    was   born   in    New    York 


532 


History  of  the  Bench  and  Bar  of  California. 


City,  on  April  lo.  1828.  He  was  educated  there 
at  the  Collegiate  Institute.  In  June,  1846,  at 
the  age  of  eighteen,  he  enlisted  as  a  soldier 
in  the  War  with  Mexico — in  the  First  Regi- 
ment, New  York  Volunteers.  The  regiment 
was  ordered  to  California  hy  way  of  Cape 
Horn,  and  sailed  from  New  York  in  Septem- 
ber, 1846,  arriving  at  San  Francisco  on  March 
26,  1847.  After  a  few  days  Colonel  Houghton's 
company  was  ordered  to  Mexico,  and  took 
passage  on  an  old  bark,  the  '"Moscow,"  which 
had  been  used  for  gathering  hides  along  the 
coast  for  shipment  to  Boston.  The  "Mos- 
cow" sprung  a  leak,  and  the  men  landed  at 
Santa  Barbara,  where  they  remained  until  a 
United  States  man-of-war  called  for  them  and 
took  them  to  Mexico. 

Colonel  Houghton  was  with  the  American 
fjrces  in  that  country  until  llu-  nnddle  of  Sep- 
tember, 1848.  He  was  then  ordered  with 
comrades  to  Monterey,  California,  where  he 
arrived  in  October,  in  the  United  States  ship- 
of-the-line  Ohio,  the  commander  of  which  was 
Thomas  Ap  Catesby  Jones,  who  was  head  of 
the  American  navy  at  that  time. 

Our  subject  now  received  his  discharge  from 
the  army.  He  went  at  once  to  the  gold  mines, 
which  had  been  first  discovered  a  few  months 
before,  and  engaged  in  mining  and  trading 
for  about  nine  months.  He  then  went  to  San 
Jose,  and  settled  down.  He  was  admitted 
to  the  bar  of  the  old  District  Court  at  that 
place  in  1857:  to  the  bar  of  the  State  Supreme 
Court  in  1859.  and  to  that  of  the  Supreme 
Court    of   the    United    States    in    1871. 

Colonel  Houghton's  first  triumph  at  the  bar. 
;iu(l  his  first  case  in  the  State  Supreme  Court, 
was  in  the  very  year  of  his  admission  to  prac- 
tice in  that  tribunal.  It  was  a  Santa  Clara 
County  case.  Scott  vs.  Ward,  set  forth  in  the 
California  Reports.  I.^h  vol.,  page  458,  de- 
cided in  .April.  1850-  'I'hert'in  he  overturned 
the  whole  (biclrine  of  the  law  that  had  ob- 
tained in  this  State  down  to  that  time.  It 
bad  been  uniformly  held  that  a  grant  made  to 
a  married  jjerson  w.is  coumiunity  property  un- 
der the  colonization  laws  of  Mexico  of  1824, 
and  the  Regulations  of  1828.  Colonel  Hough- 
ton contended  that  such  grants  were  gifts, 
and  the  separate  property  of  the  spouse  named 
in  tluni.  whether  husband  or  wife.  He  pre- 
vailed in  both  the  District  and  Supreme  Courts, 
and  owed  his  victory  to  his  knowledge  of  the 
Sitanish  language  and  the  Snanish  and  Mexi- 
can laws.  The  opinion  of  the  Supreme  Court 
in  Scott  vs.  Ward  was  a  great  surprise  to  the 
bar  of  the   State. 


In  the  case  of  Donner  vs.  Palmer,  arising 
in  San  Francisco,  and  involving  the  validity  of 
an  alcalde's  grant  of  a  city  lot.  Colonel  Hough- 
ton overthrew  the  settled  doctrine  of  the 
courts  on  another  question  of  great  conse- 
(|uence.  The  decisions  had  all  been  that  an 
alcalde's  paper  delivered  to  a  grantee,  setting 
forth  the  conveyance  of  the  land,  was  the  real 
grant,  while  that  functionary's  record  of  the 
grant,  entered,  as  law  required,  on  his  offi- 
cial register  or  record,  was  secondary— in  efifect 
a  copy.  The  Colonel  contended  that  the  orig- 
inal entry  was  the  primary  evidence  because 
it  was  a  public  record.  The  Supreme  Court 
sustained  this  view.  In  this  case,  which  is 
reported  in  31st  California,  at  page  500,  the 
name  of  the  alcalde  had  been  surreptitiously 
erased   from   the  paper   issued  to  the  grantee. 

'ihe  decision  in  this  case  so  disturbed  the 
bar  of  the  State  that  man}-  of  its  members  pe- 
titioned for  a  rehearing,  and  that  the  bar  be 
invited  to  attend  and  discuss  the  question. 
This  was  granted,  a  number  of  lawyers  at- 
tending, and  all  of  them  taking  stand  against 
Colonel  Houghton,  except  Sidney  L.  Johnson. 
The  court  adhered  to  its  opinion. 

Later,  in  another  case  of  the  Colonel's,  taken 
to  the  Supreme  Court  of  the  United  States, 
that  court  decided  in  accordance  with  the  doc- 
trine laid  down  in  Donner  vs.  Palmer.  This 
was  the  case  of  Palmer  vs.  Low.  Many 
I)ages,  indeed  a  book,  cotdd  be  devoted  to  a 
mere  statement  of  the  many  other  important 
causes  which  Colonel  Houghton  has  carried  to 
a  successful  conclusion  in  his  active  and  long 
career. 

The  Colonel  was  elected  to  the  national 
house  of  representatives  twice,  from  the  first 
district,  as  a  Republican.  His  period  in  con- 
gress was  four  years,  from  March  4,  187 1,  to 
March  4,  1875.  His  party  was  divided  in  1875, 
that  is,  a  branch  split  off.  He  was  unani- 
mously nominated  again  for  congress  by  the 
regular  body,  but  P.  D.  Wigginton,  Demo- 
crat, was  elected,  the  Democrats  sweeping  the 
State. 

While  in  Congress,  Colonel  Houghton  se- 
cured the  first  appropriation  by  the  general 
government  for  the  improvement  of  the  inte- 
rior harbor  of  San  Pedro.    This  was  in  1871. 

Colonel  Houghton  removed  to  Los  Angeles 
in  1886,  and  has  been  in  practice  there  ever 
since. 

His  only  partnershin  in  that  city  was  with 
Messrs.  Silent  and  Campbell,  as  referred  to  in 
the  sketch  of  Judge  Campbell  in  tlii<  history. 
When  Mr.  Walter  F.  Haas,  who  had  qualified 


History  of  the  Bench  and  Bar  of  California. 


533 


for  the  bar  in  his  office,  became  city  attor- 
ney in  January,  1899.  he  asked  the  Colonel  to 
accept  the  position  of  assistant  in  the  office, 
and  the  latter  assumed  the  place,  principally 
out  of  a  desire  to  be  of  help  to  his  student 
and  to  make  his  administration  successful.  He 
retired  from  office  with  his  young  chief  in 
January,  1901,  having  rendered  the  city  services 
of  great  vahie  in  important  litigation.    ' 

Colonel  Houghton  is  always  so  titled,  from 
his  early  and  prominent  connection  with  the 
State  militia.  He  was  colonel  on  the  staff  of 
that  other  distinguished  lawyer,  as  well  as  law 
writer,  H.  W.  Halleck,  when  the  latter  was 
major  general  of  the  National  Guard  of  Cali- 
fornia, in  the  fifties.  He  had  been  with  Gen- 
eral Halleck  in  Mexico.  While  he  was  on 
General  Halleck's  staff  the  General  and  Colo- 
nel together  framed  the  first  militia  law  of  this 
State.  The  legislature  adopted  it  as  a  whole. 
After  the  great  Vigilance  Committee  of  1856 
they  prepared  a  new  militia  law,  which  was 
also  passed  as  presented. 

1  he  Colonel  has  been  twice  married,  both 
of  his  wives  having  been  little  girls  in  the 
ill-fated  "Donner  party"  of  1846,  when  their 
parents  perished  of  exposure  and  hunger.  The 
first  Mrs.  Houghton  was  Miss  Mary  M.  Don- 
ner, daughter  of  George  Donner,  and  the  mar- 
riage occurred  at  Santa  Cruz,  where  she  was 
then  living,  in  1859.  She  died  at  San  Jose 
in  the  following  year,  leaving  a  daughter,  who 
still  resides  with  her  father.  The  present 
Mrs.  Houghton  was  Miss  Eliza  P.  Donner, 
daughter  of  Jacob  Donner.  This  marriage 
took  place  at  Sacramento,  in  October,  1861. 
The  two  Donners  named  were  brothers.  Ja- 
cob was  the  leader  of  the  "Donner  party."  By 
the  last  marriage  there  are  living  three  sons 
and  two  daughters.  One  of  the  sons,  Mr. 
Charles  D.  Houghton,  is  a  lawyer  of  Los  An- 
geles. 

Colonel  Houghton  keeps  in  splendid  health 
and  mental  vigor,  and  is  actively  following  his 
profession.  Judges  and  lawyers  alike — his  con- 
temporaries of  early  days  and  young  practi- 
tioners— speak  of  him  as  one  of  the  ablest 
and  worthiest  members  of  our  State  bar.  His 
residence  is  in  Los  Angeles,  but  he  owns  a 
farm   in   the  county. 

JOHN   T.    KINKAD'E. 

This  veteran  of  the  Placer  county  bar  is  a 
native  of  Virginia,  and  was  born  on  the  foot- 
hills of  the  Alleghany  mountains  on  the  24th 
day  of  January,  1828.     He  was  educated  in  the 


schools  of  Virginia  and  Ohio,  attending  last 
the  Wesleyan  University  at  the  city  of  Dela- 
ware, State  of  Ohio.  He  was  at  one  time  a 
classmate  with  the  late  ex-President  Hayes. 
At  the  age  of  twenty-one  years  he  was  ad- 
mitted to  the  bar  in  the  Circuit  Court  of  Vir- 
ginia, which  was  then  the  court  of  last  resort 
in  that  State.  He  came  to  California  by  prai- 
rie schooner  across  the  plains  in  1849,  landing 
in  Hangtown  (the  first  name  of  Placerville ) 
on  the  last  day  of  August,  1849,  and  like  a 
majority  of  other  pioneers,  became  an  "honest 
miner."  Mr.  Kinkade  prospected  extensively 
in  the  mines,  from  Del  Norte  to  Tuolunme, 
but  he  was  not  a  lucky  miner. 


In  1857  he  began  practice  as  an  all-round 
lawyer,  in  civil  and  criminal  work,  and  has 
continued  in  practice  to  the  present  time.  His 
home  is  in  Auburn,  and  it  has  been  in  what  is 
now  Placer  county,  since  the  14th  day  of 
February,  1850,  and  he  has  taken  an  active 
part  in  politics  and  education  for  many  years. 

For  thirty  years  past  he  has  made  a  specialty 
of  practice  of  equity  and  probate  work.  He 
is  now  seventy-two  years  of  age,  and  appar- 
ently but  little  past  the  prime  of  life.  He  is 
a  lawyer  of  the  old  school.  He  is  now  the 
president  of  the  Placer  County  Bar  Associa- 
tion. 


EDWARD    Sl'.AI.DIXG    I.ll'lM  11". 

niiis  vctrran  of  tlu-  bar  was  Ijorn  m  Wind- 
ham county,  Connecticut,  September  17.  18J4. 
He  is  of  Rhode  Island  stock.  His  grandfather 
was  a  colonel  in  the  war  of  the  Revolution, 
and  his  father  was  an  officer  in  a  cavalry  regi- 
nicnl    in    tin-    War  of    1812. 

Mr.  Lippitl  was  educated  in  the  common 
schools  of  New  England  and  prepared  for  col- 


534 


History  of  the  Bench  and  Bar  of  California. 


lege  at  East  Greenwich,  R.  I.  He  graduated 
at  the  Wesleyan  University  in  1847,  and  be- 
fore graduation  was  elected  principal  of  a 
preparatory  school  at  Pembroke,  N.  H.  He 
was  at  Harvard  Law  School  in  the  winter  of 
1848-9.  Edward  Everett  was  then  president, 
and  Story,  Parsons,  Green  leaf,  and  Washburn 
were  professors  in  the  law  school.  Without 
completing  the  course  he  left  for  Cincinnati, 
having  been  elected  professor  of  mathematics 
in  the  Wesleyan  Female  College.  He  was  ad- 
mitted to  the  bar  of  Ohio  in  1853,  and  com- 
menced the  practice  of  the  law  in  the  firm  of 
Probasco.  Lippitt  &  Ward.  In  1857  he  and  R. 
R.  Hayes,  afterward  President  of  the  United 
States,  were  partners  and  were  elected  city 
attorneys  for  the  city  of  Cincinnati.  They  con- 
tinued in  that  position  until  the  breaking  out 
of  the  Civil  War  in  1861. 

The  bar  of  Cincinnati  at  that  time  contained 
many  men  who  afterward  achieved  national 
reputation.  Of  the  older  were  Judge  Storer, 
father  of  the  present  minister  to  Spain  ;  United 
States  Senator  Pugh,  Governor  Tom  Corwin, 
Henry  Stanbery,  Salmon  P.  Chase,  and  others. 
Of  the  younger  members  were  R.  B.  Hayes, 
Stanley  Matthews,  Judge  Hoadley,  Robert  Mc- 
Cook.  Geo.  H.  Pendleton,  and  others. 

At  the  commencement  of  the  war  Mr.  Lippitt 
came  to  California  and  was  elected  professor 


of  mathematics  and  natural  science  in  the 
University  of  the  Pacific.  In  1863  he  located 
at  Petal uma  and  for  a  time  took  charge  of 
the  public  schools  of  that  city,  but  in  1867 
returned  to  the  practice  of  the  law. 

He  took  a  prominent  part  in  the  location 
and  construction  of  the  San  Francisco  and 
North  Pacific  Railroad,  and  in  1874  became  the 
counsel  for  that  road,  and  was  thereafter 
general  counsel  of  the  same  until  the  death 
of  J.  M.  Donahue. 

For  eight  years  he  was  city  attorney  for 
the  city  of  Petaluma  and  was  a  director  also 
in  the  board  of  agriculture  of  that  district  for 
eight  years.  Though  holding  no  political 
ofiice,  he  has  made  the  canvass  of  the  State 
at  every  general  election  since  1865. 

He  has  been  a  prominent  Mason  and  in  1895 
reached  the  highest  ofifice  in  the  State,  that  of 
grand  commander  of  the  Knights  Templar. 

In  1851  he  married  Sarah  L.  Lewis,  of  Mon- 
roe, Louisiana,  by  whom  he  has  five  children 
living.  The  younger  son,  Frank  K.  Lippitt,  for 
the  last  ten  years  has  been  associated  with 
him  in  the  practice  of  law  under  the  present 
firm  name  of  Lippitt  &  Lippitt.  Mr.  Lippitt, 
although  past  seventy-five,  is  still  as  vigorous 
as  he  ever  was  in  health  and  in  the  practice  of 
his  profession,  with  the  prospect  of  a  much 
longer  life. 

THE  EDITOR. 


NECROLOGY   OF 
RECENT  YEARS 


ujat4(>^t^i^l$>^i^^oiJ3 


HISTORY  of  the 
BENCH  and  BAR 
of  CALIFORNIA 


,  op  ej;)  eip  . ;-,  e^  t 


NECROLOGY  of  RECENT  YEARS 


ZACHARY  MONTGOMERY. 

Few  men  have  been  belter  known  in  this 
State,  and  few  Californians  have  been  better 
known  throughout  the  United  States,  than 
Zachary  Montgomery.  His  hfe  of  seventy-six 
years  ended  at  Los  Angeles  so  late  as  the  3d 
of  September,  1900.  He  was  an  aggressive 
man,  and  made  many  enemies,  but  they,  those 
who  had  knowledge  of  him,  alwa3'S  credited 
him  with  sincerity.  His  name  came  up  in  a 
conversation  which  we  had  with  Mr.  George 
K.  Fitch,  the  veteran  Republican  journalist  of 
San  Francisco,  during  the  period  when  Mr. 
Montgomery  was  assailing  with  tongue  and 
pen  our  public  schools.  "But  Zach  is  honest," 
observed  Mr.  Fitch,  who  had  known  him  since 
early  days. 

Zachary  Montgomery  was  1)orn  in  IvLMitucky, 
on  the  6th  of  March,  1825.  lie  grew  up  on  a 
plantation,  and  prepared  himself  for  tiie  legal 
profession,  but  before  entering  on  the  practice 
he  spent  llie  year  1849  in  teaching  school  at 
Rockporl.  Illinois,  lie  came  to  California  early 
in  1850.  settling  in  Suiter  county,  and  com- 
mencing the  practice  of  law  at  \\\\ya  City, 
across  the  river  from  Marysville.  lie  was  dis- 
trict attorney  of  Sutter  county  for  two  terms. 
He  was  a  member  of  the  assembly  at  the 
twelfth  session,  which  oiutud  nn  January  7, 
and  closed  on  May  10.  i8()i.  Ihe  Civil  War 
was  close  at  hand.  .Montgitmery  was  the  can- 
didate of  the  Sduthern  wing  of  the  Democracy 
for  speaker ;  I*".  F.  b'argo  of  San  Francisco, 
of  the  Republicans:  John  Conness,  of  the 
Douglas  Democrats,  and  X.  Greene  Curtis,  In- 
dependent. Montgomery  received  twenty-two 
votes  out  of  eighty,  and  withdrew  his  name 
after   nineteen   ballots.      Dr.    I'nrm-ll.   on    win  mi 


the  Republicans  and  Douglas  men  united,  was 
elected  on  the   109th   ballot. 

For  Montgomery's  secession  report  against 
pledging  the  credit  of  the  State  to  help  sup- 
press the  rebellion,  and  which  is  rich  reading 
now.  the  reader  is  referred  to  the  appendix  to 
the  Assembly  Journal  of  1861.  He  was  a  de- 
vout Catholic,  and  for  his  efforts  to  obtain 
a  sectarian  division  of  the  public  school  fund, 
see  the  same  Assembly  Journal,  and  also  the 
official  report  of  John  Swett  (Republican), 
State  superintendent  of  public  instruction,  in 
the  .Assembly  Journal  of  the  17th  session,  ap- 
l>en(li.\    two. 

We  resided  in  the  Capital  city  in  1861,  and 
often  looked  in  on  the  legislature.  We  saw 
the  following  passage-at-arms  between  Mr. 
Montgomery  and  the  majority  leader  on  the 
lloor  of  the  assembly,  John  Conness,  which 
was  f)ublished  in  the  Sacramento  Vnxon  the 
next  morning : 

"Some  remark  was  made  in  a  speech  by  Mr. 
Conness,  referring  to  Mr.  Montgomery,  which 
was  somewhat  severe,  but    not   now  recalled. 

"Mr.  Mont'^omcry — TlK-re  are  blackguards 
here. 

"My.  Conness — I  recognize  one,  in  the  gen- 
tleman from  Sutter. 

"Mr.  Monli^oincvy — ^'ou  recognize  him  as  in 
a  mii'ror." 

Mr.  Montgomery  married  ICllen  Fvoy.  in 
18(1.4  lu'  and  his  \\\W  brought  suit  in  S.in  b^r.-m 
Cisco  against  Robert  O.  .Sturdiv.mt.  on  a  con- 
tract he  had  made  with  iluui  to  buy  a  piece 
of  Lnid  which  Mrs.  Montgomery's  mother  had 
conveyed  to  them.  They  prevailed  in  the  lower 
court,  but  lost  the  case  on  .appeal.  The  case 
is  somewhat  interesting  to  l.iwvers  .See  .41 
Cal.   _'95. 


588 


History  of  the  Bench  and  Bar  of  California. 


In  1864  Mr.  Montgomery  established  The 
Occidental,  a  weekly  newspaper,  in  San  Fran- 
cisco. The  plant  was  destroyed  by  a  mob  on 
April  15,  1865,  on  receipt  of  the  news  of  Pres- 
ident Lincoln's  assassination — as  also  the  plants 
of  The  Monitor,  Nezvs  Letter,  Franco-Ameri- 
cainc,  and  The  Democratic  Free  Press.  The 
proprietors  of  all  these  papers  recovered  dam- 
ages by  suits  against  the  city.  Mr.  Montgomery 
then  practiced  law  in  San  Francisco  for  some 
years,  having  a  brief  partnership  in  1869-1870 
with  Oliver  P.  Evans,  afterwards  Superior 
Judge.  From  1880  to  1885  he  practiced  law  at 
San  Diego. 

Mr.  Montgomery  kept  up  his  fight  against 
the  public  school  system  of  the  State  for 
twenty  years.  One  of  his  pamphlets  issued  in 
the  seventies  was  entitled  "Drops  from  the 
Poison  Fountain."  His  course  in  this  regard 
brought  him  into  great  public  disfavor.  His 
appointment  by  President  Cleveland  to  the  of- 
fice of  Assistant  United  States  Attorney-Gen- 
eral elicited  much  newspaper  comment.  This 
was  in  May,  1885,  and  an  agitation,  which 
some  asserted  was  led  by  Judge  Stephen  J. 
Field,  over  Montgomery's  views  on  the  public 
schools,  created  an  extraordinary  demand  for 
the  pamphlet  just  alluded  to,  which  fairly 
boomed  through   the  summer  of  '85. 

For  Montgomery's  letter,  as  Assistant  U.  S. 
Attorney-General,  on  "Slickens,"  written  to 
the  Sacramento  Bcc.  see  that  paper  of  Octo- 
ber 26,  1885,  and  the  San  Francisco  Call  of  the 
following  day. 

Montgomery  held  his  public  office  at  Wash- 
ington for  four  years.  He  then  engaged  in 
law  practice  in  that  city.  In  1894  he  came 
back  to  this  State,  and  settled  in  Los  Angeles, 
where  he  practiced  law  until  his  death.  He 
left  a  widow  and  si.x  children.  He  was  uncle 
of  the  Right  Rev.  George  Montgomery,  pres- 
ent Catholic  bishop  of  Los  Angeles  and  Mon- 
terey. 

He  died  suddenly,  from  a  stroke  of  paraly- 
sis. The  telegraphic  announcement  of  the 
event  added :  "The  State  has  lost  one  of  her 
most  picturesque  and  widely  known  pioneers.'' 
Very  true.  The  panorama  of  his  life  attracts 
the  eye.  and  disposes  the  mind  to  self-consulta- 
tion. 


PATRICK  REDDY 


Patrick  Reddy.  at  the  time  of  his  death, 
which  occurred  at  San  Francisco  so  recently 
as  June  26,  1900,  was  and  had  been  for  ten 
years  the  head  of  a  leading  law  firm  of  that 


city.  He  was  born  in  Rhode  Island,  February 
15.  1839,  his  parents  being  from  Ireland. 

He  received  his  education  in  his  native  state, 
and  in  February,  1861,  came  to  the  Pacific 
coast  and  engaged  in  mining.  He  studied  law 
in  Inyo  county  and  was  admitted  to  the  bar 
in  May,  1867,  engaging  in  the  practice  of  his 
profession  there  until  April,  1879,  when  he  re- 
inoved  to  Bodie.  He  resided  in  that  mining 
town  until  1881,  when  he  opened  an  office  in 
San  Francisco. 

Mr.  Reddy  was  a  member  of  the  constitu- 
tional convention,  representing  Inyo  and  Mono 
counties,  in  1878-79.  In  1883  he  was  elected 
to  the  State  senate  as  the  representative  of 
Mono,  Inyo,  Kern,  Tulare  and  Fresno  coun- 
ties, and  served  four  years,  being  a  Democrat, 
and  the  senate  being  Democratic  in  that  period. 
He  was  appointed  a  member  of  the  board  of 
State  prison  directors  in  1889,  but  had  to  re- 
sign the  position  the  following  year  because 
of  his  increasing  law  practice.  He  became 
part  owner  in  a  number  of  paying  mines,  and 
was  one  of  the  original  owners  of  the  Yellow 
Aster  mine  of  Randsburg.  He  sold  his  interest 
in  that  mine  for  a  large  sum  of  money. 

Mr.  Reddy  was  interested  as  counsel  in  some 
of  the  most  important  litigation  in  the  history 
of  this  State.  A  press  writer  well  said  that 
as  a  criminal  lawyer  his  name  had  been  her- 
alded throughout  the  West  for  his  successes. 
He  won  the  gratitude  of  the  miners  of  the 
Coeur  d'Alene  district  by*  his  eflforts  in  their 
behalf  and  his  graphic  letters  to  the  Call. 

He  left  a  widow  but  no  children.  He  was 
married  in  Esmeralda  county,  Nevada,  in  1864, 
to  Miss  Emily  M.  Page,  and  they  lived  a  most 
happy  life  together.  Captain  E.  A.  Reddy,  su- 
perintendent of  the  Almshouse  at  San  Fran- 
cisco, is  an  only  brother.  It  strangely  hap- 
pened that  during  his  short  sickness  and  at 
his  death,  J.  C.  Campbell  and  William  H. 
Metson,  his  law  partners,  were  both  out  of 
the  city.  Mr.  Campbell  was  engaged  in  the 
trial  of  a  case  at  Eureka,  and  Mr.  Metson 
was  in  Nome  on  business  for  the  firm.  Hon. 
James  G.  Maguire  announced  the  death  of 
Mr.  Reddy  in  the  United  States  Circuit  Court. 
Judge  Morrow  adjourned  the  court  out  of  re- 
spect to  his  memory.  Mr.  Maguire  paid  a 
feeling  tribute  to  the  worth  of  the  deceased 
lawyer.  Judge  Morrow  said  that  the  court 
was  entirely  in  accord  with  what  Mr.  Ma- 
guire had  said  in  respect  to  the  sterling  worth 
of  Mr.  Reddy.  "He  always  observed  the  re- 
quircmeats  of  the  profession  in  endeavoring 
to  assist  the  court  in  arriving  at  the  truth.  His 


History  of  the  Bench  and  Bar  of  California. 


539 


dealh  was  a  great  loss  to  the  bar."  said  Judge 
Morrow. 

The  following  incident  was  telegraphed  from 
Sacramento  to  the  San  Francisco  papers  on  the 
day  after  Mr.  Reddy's  death : 

"One-armed  Patrick  Reddy  proved  himself 
a  hero  at  the  postoffice  at  the  noon  hour  of 
January  5.  1897.  Accompanied  by  his  sten- 
ographer, he  w^s  on  his  way  downtown  from 
the  Supreme  Court  chamber,  when  he  noticed 
a  crowd  rushing  out  of  the  arched  entrance 
to  the  postoffice. 

"'What  is  the  matter?'  asked  Reddy,  ac- 
costing one  of  the  panic-stricken  throng. 

"  'A  man  is  in  there  trying  to  murder  a 
woman,'  was  the  breathless  reply.  I'hat  was 
enough  for  Reddy.  Brushing  aside  all  impedi- 
ments to  his  progress,  he  dashed  up  the  gran- 
ite steps  and  into  the  postoffice  corridor.  The 
place  had  been  deserted  .save  for  a  man  and 
a  woman.  The  man,  P.  J.  Hulsman.  in  a  fury 
of  rage,  was  brandishing  a  cocked  revolver 
and  threatening  the  life  of  his  sister,  Mrs.  A. 
T.  Krigbaum,  with  whom  he  had  been  quar- 
reling over  some  family  matter.  The  woman, 
helpless  in  her  terror,  was  expecting  the  next 
moment  to  be  her  last,  when  Reddy,  with  his 
one  able  hand,  caught  the  barrel  of  the  revolver 
and  pressed  his  thumb  under  the  hammer  in 
such  a  manner  that  the  trigger  could  not  be 
operated.  Hulsman,  watching  his  chance,  made 
a  desperate  effort  to  turn  the  weapon  on  Reddy, 
but  the  latter  with  his  one  arm  not  only  pre- 
vented this,  but  held  Hulsman  a  prisoner  until 
the  police  apppeared  on  the  scene.  Reddy 
stopped  at  a  drug  store  to  have  his  mangled 
thumb  dressed  and  then  continued  on  down  the 
street  as   if  nothing  unusual   had  happened." 


HENRY  VROOMAN. 

Henry  Vrooman,  author  of  the  "Vrooman 
Act,"  *  who,  for  some  years  before  his 
death,  was  not  only  a  bar  leader,  but  a  Re- 
publican party  leader  in  the  banner  Republican 
county,  Alameda,  was  born  in  Lietclificld, 
Hillsdale  county,  Michigan,  on  the  25th  day 
of  July,  1844.  His  parents  removed  to  Port- 
land, Oregon,  in  October,  1852.  Henry,  now 
eight  years  of  age,  obtained  employment  on 
a  ranch  near  Oregon  City,  where  he  worked 
hard  during  the  sununer  months  and  in  the 
winter  attended  school  in  the  neighboring  town 
of  Forest  Grove.  He  continued  this  course 
until  1856,  when,  accompanied  by  his  mother, 
he  went  to  San  Francisco.     He  remained  but 

*The  "Vrooman  Act"  is  an  act  of  the  legis- 
lature of  the  State  of  California,  providing  for 
the  manner  of  performing  all  street  work 
throughout  the  Stale.  Since  San  Francisco 
adopted  a  new  charter  (in  effect  January  1, 
1900),  the  charter  prevails  in  that  city,  al- 
though the  law  is  almost  identical.  The  act 
was  approved  March  18,  1885. — Editor. 


a  short  time,  leaving  for  Butte  c<jnniy,  where 
he  obtained  employment  on  a  large  ranch  about 
six  miles  below  Chico.  On  this  ranch  was  a 
hotel  kept  by  Mr.  Wheeler,  and  as  it  was  lo- 
cated on  a  stage  route,  most  of  its  patrons 
were  travelers.  Here  Henry,  now  twelve  years 
of  age,  was  employed  as  general  factotum, 
washing  dishes,  blacking  boots  and  attending 
to  the  wants  of  those  who  made  the  hotel  their 
temporary  abiding  place.  This  occupation,  how- 
ever, was  not  congenial  to  the  tastes  of  the 
ambitious  youth,  for  in  a  few  months  we  find 
him  located  at  "Dogtown."  Here  his  mother 
rejoined  him,  and  he  found  employment  in 
driving  one  of  the  logging  teams,  at  that  time 
common  in  that  section  of  the  State.  In  the 
spring  of  1858  he  engaged  with  Henry  Harris 
as  a  buyer  and  driver  of  cattle.  His  duties 
consisted  in  buying  cattle  in  the  valleys  and 
driving  them  to  the  premises  of  his  employer, 
who  was  a  butcher  by  occupation,  in  Dogtown. 
After  the  cattle  had  been  slaughtered,  young 
Vrooman  would  pack  the  beef  on  a  mule  and 
sell  it  in  the  town  and  vicinity.  In  the  spring 
of  i860  he  went  to  Tuolumne  county  and  en- 
gaged in  mining  and  other  employments,  until 
the  spring  of  1861.  After  a  varied  experience 
in  the  mines,  he  went  to  Oakland  in  April, 
1867,  and  worked  at  his  trade  until  he  had  ac- 
cumulated sufficient  funds  to  defray  the  ex- 
pense of  a  course  at  the  Pacific  Business  Col- 
lege, where  he  remained  until  he  received  a 
diploma. 

In  the  spring  of  1868  he  entered  the  college 
school,  Oakland,  where  he  remained  until  his 
funds  were  exhausted,  when  he  went  to  Vaca- 
ville  and  engaged  in  the  work  of  ironing 
header-wagons,  for  which  he  received  six  dol- 
lars per  dav.  Having  tluis  replenished  his  de- 
pleted purse,  he  determined  upon  a  bold  step 
to  acquire  the  education  for  which  his  soul 
thirsted.  He  went  to  Cornell  University,  in- 
tending to  work  at  his  trade  in  the  Ithaca 
siiops,  and  thus  earn  money  enough  to  carry 
him  through  a  full  college  course.  To  his 
great  disai)poinIment,  however,  he  found  this 
|)roject  impracticable.  The  severity  of  the  la- 
bor, coupled  with  the  extremes  of  heat  and 
cold  of  an  uncongenial  climate,  seriously  af- 
fected his  health,  and  he  was  reluctantly  com- 
(jclled  to  relinquish  his  cherished  idea  of  ob- 
taining a  college  education.  He  returned  to 
Oakland  and  secured  employment  as  a  sur- 
veyor, which  occupation  he  followed  until  Jan- 
uary, 1873,  when  he  was  appointed  engineer 
of  Phoenix  Fire  Engine  Company  No.  i.  of 
Oakland  at  a  salary  of  $60  per  month.     During 


540 


History  of  the  Bench  and  Bar  of  California. 


lliai  year  lie  nui.  only  ran  the  engine,  but  also 
workid  ni  the  office  of  ilic  city  engineer,  wrote 
for  iIk-  Oakland  Home  Journal,  and  com- 
menced the  study  of  law,  an  event  which 
forms  the  principal  feature  of  his  remarkable 
career.  Often  when  immersed  in  Blackstone, 
the  first  lap  of  the  firebell  would  send  him  to 
his  post  of  duty  on  the  engine.  Only  one  year 
after  he  received  his  appointment  as  engineer, 
the  ox-driver,  blacksmith,  wood-chopper,  clerk, 
wiUer  and  law  student  was  admitted  to  the 
bar  of  the  Supreme  Court  of  California,  and 
in  1881  to  that  of  the  Supreme  Court  of  the 
United  Slates,  before  which  latter  tribunal  he 
appeared  that  year  as  attorney  for  the  city  of 
Oakland  in  an  important  suit.  After  his  ad- 
mission to  the  bar  Mr.  Vrooman  was  appointed 
deputy  district  attorney,  and  afterwards  deputy 
city  attorney  of  Oakland,  holding  both  offices 
at  the  same  time  and  discharging  their  duties 
with  marked  ability. 

On  the  13th  day  of  IMarch,  1876,  Mr.  Vroo- 
man was  elected  city  attorney  of  Oakland.  In 
1877  be  was  elected  district  attorney  of  Ala- 
meda county,  lie  resigned  in  1879,  and  in 
1882  he  was  elected  to  the  State  senate.  In 
1884  his  name  was  on  the  unsuccessful  ticket 
for  presidential  elector.  He  was  re-elected 
State  senator  in  1886. 

in  January,  1873,  Mr.  Vrooman  was  married 
to  Miss  Emily  Jordan,  of  Oakland.  In  the 
selection  of  a  wife  he  was  most  fortunate,  for 
the  union  proved  a  source  of  unalloyed  hap- 
piness to  both,  and  the  cottage  in  which  they 
dwelt  was  the  abiding  place  of  peace  and  joy, 
and  of  a  home-life,  bright  and  beautiful  in  mu- 
tual respect,  conlidence  and  love.  Four  chil- 
dren were  born  to  them,  three  of  whom  are  liv- 
ing. 

Mr.  Vrooman  died  in  1889,  leaving  a  hand- 
some estate.  His  widow  is  a  sister  of  Hon. 
W.  H.  Jordan,  who  was  speaker  of  the  assem- 
bly  in   1887. 

Mr.  Vrooman  was  one  of  the  original  trus- 
tees of  the  Stanford  University,  and  the  fore- 
going notice  of  him  was  taken  from  the  Re- 
sources of  California  for  September,  1886,  giv- 
ing the  lives  of  the  trustees. 


1843  to  1851.  He  then  removed  to  Yazoo  City, 
and  within  a  year  was  elected  vice-chancellor 
of  the  middle  district  of  that  state.  In  1855 
he  was  re-elected,  but  in  the  same  year  re- 
signed, and  resumed  law  practice  at  Carroll- 
ton.  He  came  to  California  in  1859,  and  took 
up  his  residence  in  San  Francisco  in  January, 
i860.  In  that  city  he  practiced  law  until  his 
election  as  probate  judge  in  1868.  He  served 
a  full  term  of  four  years.  In  1874  he  was  com- 
missioned by  Governor  Booth,  who  was  of 
opposite  politics,  to  fill  a  vacancy  in  the  office 
of  county  judge  of  San  Francisco,  and  in  1875 
he  was  elected  to  the  same  position  for  a  full 
term  of  four  years. 

In  1871  Judge  Wright  was  the  Democratic 
candidate  for  judge  of  the  Supreme  Court, 
for  the  long  or  full  term,  and  was  defeated  by 
A.  L.  Rhodes,  Republican.  He  resigned  his 
place  on  the  probate  bench  when  nominated 
for  the  higher  office.  It  was  before  him,  as 
probate  judge,  the  celebrated  Hawes  will  case 
was  tried.  He  was  associated  in  law  practice 
at  various  times  in  San  Francisco  with  D.  P. 
Belknap,  John  F.  Swift,  George  A.  Nourse  and 
his  sons,  Stuart  S.  and  George  T.  Wright. 

in  early  manhood  Judge  Wright  contributed 
largely  to  the  secular  and  religious  press,  in 
which  connection  it  may  be  stated  that  he  was 
an  active  member  of  the  First  Baptist  church 
of  San  Francisco,  having  been  baptized  into 
that  denomination  in  Mississippi  at  the  age  of 
twenty-one. 

Judge  Wright  died  in  February,  1893. 

A  very  pleasant  critique  by  Judge  Wright 
upon  one  of  Thomas  Starr  King's  most  noted 
lectures,  "Personal  Power  and  Its  Voices," 
was  published  in  the  old  Daily  Herald,  May 
30,   i860. 


SELDEN  S.  WRIGHT. 

Selden  S.  Wright  was  born  in  Virginia,  on 
the  7th  of  March,  1822,  and  graduated  at  Wil- 
liam and  Mary  College  at  the  age  of  twenty. 
Going  to  Mississippi  to  practice  law,  he  fol- 
lowed the  profession  there,  at  Lexington,  from 


CLAY  W.  TAYLOR. 

Clay  Webster  Taylor  was  born  in  the  town 
of  Howell,  the  county  seat  of  Livingston 
county,  Michigan,  September  10,  1844. 

The  father  was  a  physician,  and  came  to 
California  to  heal  himself  rather  than  others, 
his  health  failing.  He  first  lived  at  Sacra- 
mento, in  1858,  and  the  son,  then  fotrrteen, 
obtained  employment  as  a  clerk.  The  latter 
soon  went  to  work  on  a  farm,  from  which, 
after  a  year,  he  turned  to  mining  in  Ne- 
vada City,  where  his  parents  joined  him  again. 
A  portion  of  his  stay  at  that  place  was  passed 
at  a  clerk's  desk.  In  1861,  the  young  man 
went  over  the  mountains  "with  the  tide,"  into 
the  then  territory  of  Nevada,  and  worked  as 
a  miner  on  the  Comstock  lode  at  Virginia  City 


History  of  the  Bench  and  Bar  of  California. 


541 


and  Gold  Hill.  He  also  labored  in  the  lim- 
ber regions  of  Washoe. 

In  1864.  when  twenty  years  old,  he  deter- 
mined to  acquire  further  education,  and  so 
went  to  Oakland,  California,  and  for  a  year 
diligently  pursued  his  studies  in  school.  The 
next  year  his  father  died,  and  the  student,  just 
arrived  at  age,  was  busied  for  some  time  in 
settling  the  estate.  That  accomplished,  and 
having  in  the  meantime  married,  he  removed 
to  Shasta,  where  he  qualified  himself  for  the 
bar,  was  admitted,  and  quickly  attained  the 
leading  practice,  which  he  ever  since  held.  He 
served  the  people  of  Shasta  county  as  district 
attorney  for  eleven  years,  and  as  State  Sen- 
ator for  the  term  1882  to  1886.  He  was  ad- 
mitted to  the  bar  of  the  State  Supreme  Court 
in  1879,  and  to  that  of  the  Supreme  Court 
of.  the  United  States  in  1885.  In  the  sphere 
of  the  fraternal  orders  Mr.  Taylor  made  a  very 
wide  acquaintance  and  won  universal  good  will. 
He  served  two  terms  as  Most  Worshipful 
Grand  Master  of  Free  and  Accepted  Masons. 
He  was  of  the  thirty-third  degree,  Scottish 
Rite,  and  a  Knight  Templar. 

In  the  Ancient  Order  of  United  Workmen 
he  was  Grand  Master,  and  also  a  representa-' 
tive  to  the  Supreme  lodge.  Being  a  member  of 
the  Grand  lodge  of  the  last-named  order  when 
he  presided,  and  when  he  was  chosen  Su- 
preme representative,  we  are  able  to  testify 
to  the  dignity  and  ability  which  he  brought  to 
the  executive  office. 

At  the  Democratic  State  convention,  at  San 
Jose,  in  1882,  Mr.  Taylor  was  among  the  party 
leaders  named  in  connection  with  the  office  of 
Governor.  General  Stoncman  carried  off  the 
prize,  owing  to  his  record  as  a  member  of  the 
State  Railroad  Commission,  but  Mr.  Taylor 
had  a  large  and  enthusiastic  following. 

Mr.  Taylor  removed  to  San  Francisco  in 
1895,  and  died  there  on  April  30,  1897,  of  heart 
failure.  His  funeral  was  conducted  by  the 
Masons  with  imposing  ceremonies.  Henry  E, 
Highton  delivering  the  eulogy. 


ISAAC  S.  BELCHER. 


Isaac  Sawyer  Belcher,  the  eldest  of  three 
brothers  who  united  to  make  the  name  hon- 
ored and  distinguished  at  our  bar.  was  born 
in  the  town  of  Slockbridge,  Vermont,  on  the 
27th  day  of  February,  1825.  His  father,  Sam- 
uel Belcher,  was  a  farmer,  who,  believing  in 
the  dignity  of  labor,  permitted  no  idle  hands 
within  his  household,  but  all  were  required  to 


labor  according  to  their  strength  and  capacity, 
to  promote  the  general  good.  Isaac  was  early 
initiated  into  the  mysteries  of  agriculture,  and 
strengthened  a  naturally  vigorous  frame  by 
the  healthful  exercise  of  hoeing  corn,  digging 
potatoes  and  attending  to  the  ordinary  farm 
duties  adapted  to  his  years.  He  attended  the 
village  school  in  its  season,  and  there  acquired 
the  rudiments  of  education  in  the  English 
branches  of  study. 

In  1842  he  entered  the  University  of  Ver- 
mont, in  Burlington,  from  which  he  was  grad- 
uated with  honors  in  1846.  He  entered  the  law 
office  of  J.  W.  D.  Parker.  Esq.,  a  leading 
practitioner  of  that  time,  as  a  student,  and 
commenced  a  thorough  course  of  legal  study. 
He  was  admitted  to  the  bar  of  the  Supreme 
Court  of  Vermont  in  1852.  He  continued  the 
practice  of  the  law  in  the  courts  of  his  na- 
tive state  until  1853,  when,  on  the  20th  day  of 
May  he  embarked  for  California.  He  arrived 
in  San  Francisco  on  the  i6th  day  of  June,  pro- 
ceeding thence  to  Oregon ;  but  after  a  so- 
journ of  one  month,  he  returned  to  Califor- 
nia, located  on  the  Yuba  River,  and  mined 
for  gold  at  Parks  Bar  and  Camptonville.  He 
soon  returned  to  the  profession,  resuming  the 
practice   at   Marysville   in    1855. 

In  1861  Mr.  Belcher  revisited  his  old  home, 
and.  while  there,  was  united  in  marriage  with 
Miss  Adeline  N.  Johnson,  of  Augusta,  Maine. 
This  lady,  with  four  children,  survive  him. 

Judge  Belcher  was  district  attorney  for 
Yuba  county  in  1856-57;  District  judge  of  that 
district  in  1864-69;  Supreme  Judge  from 
March  4,  1872.  to  December  31,  1873,  and  a 
member  of  the  Constitutional  convention  of 
1878-79.  He  was  one  of  the  original  trus- 
tees of  the  Stanford  University  and  was  a  Su- 
preme Court  commissioner  from  March  16, 
1885,  until  his  death  in  1898. 

William  C.  Belcher,  a  worthy  brother  of 
Isaac  S.,  and  well  grounded  in  the  law.  died 
in  San  Francisico  some  years  before  him.  Hon. 
Edward  A.  Belcher,  Superior  judge  at  San 
Francisco  since  October  25.  1893.  is  their  half 
brother. 

Tiiis  notice  of  Judge  Belcher  is  taken  prin- 
cipally from  one  which  appeared  in  the  '"Re- 
sources of  California,"  in  September.  1886, 
when  he  was  appointed  one  of  the  trustees  of 
the  Stanford  University. 

The  Judge  died  at  his  residence  in  San 
I""rancisco,  quite  suddenly,  on  the  30tli  of  No- 
vember, 1898.  On  the  day  previous  he  had  been 
at  work  in  his  chambers  adjoining  the  Su- 
preme Court  rooms. 


542 


History  of  the  Bench  and  Bar  of  California. 


LLOYD  BALDWIN. 

Lloyd  Balwin  was  one  of  the  men  who  are 
born  to  be  cut  off  in  their  prime.  He  was  a 
very  excellent  man,  and  good  lawyer,  not  re- 
lated to  the  eminent  Joseph  G.  Baldwin,  and 
was  born  in  Maine,  in  1840.  He  was  a  grad- 
uate of  Union  College,  N.  Y.,  located  in  San 
Francisco  in  1862,  was  professor  of  the  Eng- 
lisli  language  in  the  Academic  Seminary,  Rev. 
Elkan  Colm.  principal,  in  1863.  and  was  ad- 
mitted to  the  bar  in  1866.  He  died  at  his 
Oakland  home  on  October  19,  1885.  aged  forty- 
five  years,  and  left  to  his  widow,  who  was 
a  niece  of  D.  J.  Staples,  an  estate  appraised  at 
$45,000-     His  religion  was  Unitarian. 


JOHN  W.  NORTH. 

This  able  jurist,  and  the  founder  of  River- 
side, California,  died  at  Fresno  on  the  21st  of 
February,  1890.  He  was  aged  seventy-five 
years,  and  was  a  native  of  New  York.  In  1849 
he  went  to  Minnesota,  where  he  spent  a  year 
on  Hennepin  Island,  and  was  present  at  the 
laying  of  the  foundation  of  the  first  house  in 
Minneapolis.  He  was  a  member  of  the  Sec- 
ond territorial  legislature  of  Minnesota,  and 
introduced  the  bill  chartering  the  Minnesota 
University  at  Minneapolis.  He  was  the  founder 
of  the  town  of  Northfield,  named  after  him. 
In  1857  he  was  a  member  of  the  convention 
that  framed  the  constitution  of  Minnesota.  In 
i860  he  was  chosen  a  delegate  of  that  state  to 
the  Chicago  convention  which  nominated  Lin- 
coln, and  was  on  the  committee  delegated  to 
apprise  him  of  his  nomination.  In  1867  he 
was  appointed  surveyor-general  of  the  terri- 
tory of  Nevada,  and  later  judge  of  the  Terri- 
torial Supreme  Court  of  Nevada.  In  1870  he 
conceived  the  scheme  of  planting  a  colony  of 
Eastern  peonle  in  Southern  California,  and 
founded  Riverside.  In  1879  he  formed  a  law 
partnership  at  San  Francisco  with  James  F. 
Lewis  and  W.  E.  F.  Deal,  both  from  Nevada. 
This  was  a  powerful  combination,  but  lasted 
only  for  a  year,  when  Judge  North  became 
interested  in  the  Washington  colony  scheme, 
near  Fresno,  to  which  he  devoted  the  remain- 
der of  his  years.  In  politics  he  was  a  Re- 
publican, and  in  early  life  was  a  strong  aboli- 
tionist, spending  two  years  lecturing  against 
slavery,  under  the  auspices  of  the  Connecticut 
Anti-Slavery  Society.  His  body  was  taken  to 
Los  Angeles,  and  cremated,  according  to  his 
dying  request. 

A  racy  correspondence  between  Judge  North 
and    Hon.    William    M.    Stewart,    which    took 


placf  in  January.  1864,  at  Virginia  City,  while 
ihc  Juds^o  was  on  the  bench,  may  be  found,  in 
the  Sacramento  Union  of  January  19,  1864,  as 
also  an  account  of  a  heated  and  remarkable 
debate  between  the  two  distinguished  men. 
Stewart  sent  by  us  a  letter  to  the  Judge,  chal- 
lenging him  to  a  popular  debate  in  the  opera 
house,  the  subject  being  the  manner  in  which 
the  Judge  had  decided  certain  weighty  causes 
in  which  Mr.  Stewart  was  counsel.  We  de- 
livered the  letter  to  the  Judge  at  his  home  in 
Washoe  City,  and  he  promptly  accepted,  and 
the  discussion  was  had  before  a  "full  house." 
The  newspaper  account  is  good  reading.  Judge 
North's  fluency  and  skill  in  debate  caused  uni- 
versal  surprise. 


WILLIAM    P.   DAINGERFIELD. 

William  P.  Daingerfield  was  born  in  Vir- 
ginia, on  May  17,  1824.  He  was  graduated 
from  the  University  of  Virginia,  was  admitted 
and  entered  upon  the  practice  of  the  law,  in 
which  he  remained  until  his  departure  for  Cal- 
ifornia,  where   he  arrived  in  1850. 

He  had  the  usual  pioneer  experiences,  trying 
mining  and  farming  for  a  brief  period  in  Shasta 
county,  but  ultimately  returned  to  his  profes- 
sion, having  then  his  residence  for  a  short  time 
in  San  Francisco. 

In  1853  he  was  secretary  of  the  board  of 
state  land  conutiissioners. 

In  1854  he  received  from  Governor  Bigler 
a  commission  as  District  judge  for  the  Ninth 
Judicial  district,  formed  of  Shasta,  Siskiyou 
and  Trinity  counties,  and  when  an  election  was 
held  he  was  retained  upon  the  bench. 

By  reason  of  changes  in  the  limits  of  the 
district  it  became  necessary  for  the  Judge  to 
offer  himself  as  a  candidate  at  four  successive 
elections,  at  all  of  which  his  high  place  in  the 
public  esteem   rendered  him   successful. 

In  1856  the  Judge  was  married  to  Miss  Ray- 
mond, sister  of  Dr.  J.  A.  Raymond  (then  a 
prominent  physician   in   Shasta). 

In  1864  Judge  Daingerfield  removed  to  San 
Francisco,  and  subsequently  entered  into  a 
partnership  with  the  late  J.  D.  Hambleton  and 
Henry   E.   Highton. 

By  reason  of  changes  in  the  firm,  and  the 
entry  into  it  of  the  Hon.  W..W.  Cope,  then 
retiring  from  the  Supreme  bench,  the  partner- 
ship came  ultimately  to  consist  of  Cope,  Dain- 
gerfield and  Hambleton.  Subsequently  the  firm 
dissolved;  and,  in  1871,  Judge  Daingerfield  en- 
tered into  partnership  with  Warren  Olney,  con- 
tinuing practice  imtil  1875,  when  he  was 
elected,    on    the    Democratic    ticket,   Judge    of 


History  uf  the  Bench  and  Bar  of  California. 


543 


ihc  I'wclllh  Judicial  District  Court,  compris- 
ing San  Francisco  and  San  Mateo  counties. 

When  the  new  constitution  created  the  Su- 
perior Court  to  supercede  the  old  courts  of 
record,  and  an  election  of  twelve  judges  for 
the  new  court  was  discussed,  Judge  Dainger- 
field  was,  at  a  meeting  of  the  practitioners  be- 
fore San  Francisco  tribunals,  placed  at  the 
head  of  a  list  of  twelve  nominees  to  be  recom- 
mended to  the  various  political  conventions 
then  about  to  meet,  with  the  implied  under- 
standing that,  if  elected,  he  would  be  further 
promoted  to  the  position  of  presiding  judge  of 
the  new  court. 

The  Judge  received,  without  solicitation,  the 
nomination  of  the  Democratic,  New  Constitu- 
tion and  Workingmen's  parties,  and  was 
elected,  and  on  the  organization  of  the  new 
tribunal,  he  received  from  his  associates  the 
election   as   presiding   judge. 

Judge  Daingerfield  expired  suddenly,  on  the 
bench,  while  trying  a  case,  at  noon  on  the 
5th  day  of  May,  1880.  He  had  been  a  great 
sufferer  physically  for  a  long  time.  The  Judge 
left  a  'widow,  daughter  and  son,  the  latter 
being  Hon.  William  R.  Daingerfield,  now  a 
judge  of  the  same  court  of  which  his  father 
was  the  first  presiding  judge.  The  elder  Judge 
Daingerfield  also  left  a  sister,  the  wife  of  the 
New  York  capitalist,  James  R.  Keene.    • 


R.   GUY  McCLELLAN. 

Rolondo  Guy  McClellan  was  born  at  Wood 
Islands,  Queen's  county,  Prince  Edward's  Isl- 
and, British  North  America,  on  the  25th  day 
of  March,  1831,  being  the  son  of  Captain  Rod- 
erick and  Ann  Isabella  McClellan.  who  mi- 
grated from  South  Uist,  Scotland,  early  in  the 
last  century.  He  spent  his  early  boyhood 
days  on  the  homestead  established  by  his  par- 
ents, but  while  yet  in  his  teens  set  out  on  the 
then  great  journey  to  Boston,  Massachusetts, 
where  he  soon  found  employment  with  the 
mercantile  firm  of  A.  N.  Libby  &  Co.,  quickly 
working  his  way  up  to  the  status  of  a  partner. 
His  ambition  to  advance  caused  him  to  tire 
of  the  confinement  of  commercial  life,  and,  sell- 
ing out  his  interests  in  the  concern,  he  took 
passage  for  California,  arriving  at  San  Fran- 
cisco October  16,  1855.  The  mining  excite- 
ment was  at  this  time  at  its  height,  and  Mr. 
McClellan  joined  the  vast  throng  headed  to- 
ward the  foothills  and  mountains.  Mining 
and  exploitation  occupied  some  years,  and, 
with  a  fair  reward  for  the  time  and  effort 
expended,  he  again  sought  the  l)usy  life  of 
the  metropolis  of  the  West. 


For  some  time,  during  spare  hours,  Mr. 
•McClellan  had  applied  himself  to  the  study  of 
the  law,  and  on  November  6,  1865,  he  was  ad- 
mitted to  practice  before  the  Supreme  Court 
of  the  State,  at  once  settling  down  to  the 
practice  in  San  Francisco. 

On  February  13,  1868,  Mr.  McClellan  mar- 
ried Miss  Mary  L.  Baldwin,  of  Bridgeport, 
Connecticut,  they  having  born  to  them  two 
children — Robert  Bruce  and  Clifford. 

From  the  time  Mr.  McClellan  commenced 
the  practice  of  the  law  he  was  identified  with 
all  the  great  national  and  local  matters  of  the 
lime.  During  the  Civil  War  a  great  part  of 
his  time  and  fortune  was  given  in  support  of 
the  Union,  of  which  he  had  early  in  life  be- 
come a  citizen.  When  the  call  to  arms  was 
heard.  Mr.  McClellan  was  among  the  first  to 
offer  themselves,  but  owing  to  ill  health  was 
not  permitted  to  go  to  the  front ;  so  he  applied 
his  services  to  assist  in  raising  and  equipping 
the   First   California   Regiment. 

In  all  political  campaigns  his  voice  was  often 
heard,  until  of  late  years  when  the  state  of 
his  health  compelled  complete  rest. 

Mr.  McClellan  gave  much  of  his  time  to 
literature,  and  in  this  field  is  best  remembered 
through  his  "Republicanism  in  America,"  a 
political  history  of  the  United  States;  "The 
Golden  State,"  a  history  of  the  Pacific  coast; 
"The  American  House  of  Lords,"  etc.,  etc. 

During  the  last  few  years  of  his  life  Mr. 
McClellan  was  not  actively  engaged  in  prac- 
tice, having  taken  his  elder  son  as  an  asso- 
ciate, which  lessened  his  responsibilities. 

Mr.  McClellan  passed  away  June  15,  1896,  at 
his  home  in  Oakland,  California,  leaving  sur- 
viving the  family  already  mentioned. 


EDWARD  J.  PRINGLE. 

Edward  J.  Pringle  had  been  at  the  San  Fran- 
cisco bar  continuously  from  1854  to  1899.  He 
was  born  in  South  Carolina,  in  1826,  was  grad- 
uated from  Harvard  College  in  1845,  and  after 
some  months  of  travel  abroad,  arrived  in  this 
State,  on  the  last  day  of  the  year  1853.  He 
soon  formed  a  law  partnership  with  his  col- 
lege friend.  John  B.  Felton,  and  A.  C.  Whit- 
comb,  another  college  male,  entered  the  firm 
in  1855.  This  association  continued  to  1S64. 
.'\fterwards,  Mr.  Pringle  was  for  some  five 
years  in  partnership  with  his  brother.  J.  R. 
Pringle,  whose  death  terminated  this  partner- 
ship. At  a  later  period  he  was  associated  with 
Robert  Y.  Hayne  for  several  years,  when  that 
gentleman  went  on  the  Superior  Court  bench. 


544 


History  of  the  Bench  and  Bar  of  California. 


Mr.  Pringle  made  a  deep  legal  study  of 
Spanish  and  Mexican  land  grants,  on  which  he 
was  an  accepted  authority.  He  devoted  his 
entire  atttention  to  the  civil  branches  of  the 
law.  and  conducted  successfully,  some  of  the 
largest  land  cases  in  the  history  of  this  State. 
Besides  his  legal  attainments,  he  was  a  finished 
classical  and   French   scholar. 

Mr.  Pringle  married  the  daughter  of  Syd- 
ney L.  Johnson,  an  early  and  distinguished 
lawj'er  of  San  Francisco,  and  five  sons  and  two 
daughters  were  born  to  them. 

In  1873  Mr.  Pringle  adopted  Oakland  as  his 
residence,  and  was  a  member  of  the  board  of 
freeholders  which  framed  the  city  charter  of 
that  place  in  1889. 

Two  sons,  one  of  whom  bears  his  full  name, 
are  members  of  the  San  Francisco  bar ;  the 
other,  William  B.  Pringle,  has  been  President 
of  the  Oakland  City  Council. 

In  politics  Mr.  Pringle  was  a  Democrat.  He 
had  been  appointed  a  commissioner  of  the  Su- 
preme Court  only  a  few  months  before  his 
death,  which  occurred  at  Oakland  on  April  21. 


SIDNEY  L.  JOHNSON. 

This  eminent  lawyer  and  scholar  died  on  the 
night  of  the  22d  of  July,  1887,  at  his  residence 
near  Fruitvale,  Alameda  county,  at  the  great 
age  of  seventy-eight  years  and  seven  months. 
He  was  one  of  the  most  learned  and  accom- 
plished men  in  the  State,  and  was  considered 
as  familiar  with  the  civil  law  as  any  lawyer  on 
this  coast,  and  quite  unrivaled  in  the  extent 
and  accuracy  of  his  knowledge  of  ancient  and 
modern  languages. 

He  was  born  in  New  Haven,  in  1808,  of 
Puritan  ancestors,  being  a  descendant  of  Gov- 
ernor Law  of  Connecticut,  whose  name  he 
bore.  Though  he  was  graduated  at  the  early 
age  of  eighteen,  he  took  the  valedictory  at 
Yale,  where  he  gained  also  the  Berkeley  prize 
for  proficiency  in  Greek.  Soon  after  leaving 
college  he  was  appointed  professor  of  mathe- 
matics and  navigation,  in  the  navy  and  spent 
some  time  in  a  cruise  in  the  Mediterranean, 
where  he  afterward  resigned  from  the  navy 
and  remained  for  some  years  to  complete  his 
study  of  the  modern  languages.  He  acquired 
an  accurat'e  and  scholarly  knowledge  of 
French,  Spanish,  Italian  and  modern  Greek. 
Few  men  in  any  country  have  learned  these 
languages  all  so  thoroughly  and  spoken  them 
so  correctlv. 

He   studied   law   at   New    Orleans   and   was 


successful  in  practice  there.  He  came  to  this 
country  in  1856,  and  was  retained  in  the  New 
Almaden  case,  and  was  soon  recognized  by 
the  bench  and  bar  as  more  familiar  than  any 
of  his  fellows  with  the  French  and  Spanish 
branches  of  the  civil  law.  The  honesty  of  his 
mind  was  so  remarkable  that  his  treatment  of 
these  questions  was  accepted  rather  as  the 
c)i)inion  of  a  judge  than  the  argument  of  an 
advocate. 

Mr.  Johnson's  accomplished  daugiiter  became 
the  wife  of  the  San  Francisco  bar  leader,  Ed- 
ward J.  Pringle,  and  mother  of  William  B. 
and  tiic  second  Edward  J.  Pringle,  now  of  that 
bar. 


MATT  F.  JOHNSON. 

\Vc  write  the  first  name  of  this  worthy  de- 
ceased jurist  without  a  period,  in  accordance 
with  his  own  style.  He  appears  in  old  directo- 
ries as  Matt  F.  Johnson.  Judge  Johnson  was 
born  in  Arkansas,  December  31,  1844.  His  par- 
ents crossed  the  plains  and  settled  in  Sacra- 
mento when  he  was  eight  years  old.  He  was 
educated  in  the  public  schools  of  that  city,  and 
studied  law  in  the  office  of  James  W.  Cof- 
froth,  beginning  his  preparation  at  the  age  of 
twenty-one.  He  was  admitted  to  the  bar  two 
years  later,  in  1867.  He  practiced  in  Sacra- 
mento for  some  years,  then  removed  to  Colusa, 
and  returned  to  the  capital,  where  he  was  fol- 
lowing the  profession  when  Superior  Judge 
Van  Fleet  resigned  to  remove  to  San  Fran- 
cisco. He  was  appointed  to  the  unexpired 
term,  which  he  filled  out  and  was  elected  for 
a  full  period. 

Judge  Johnson's  life  ended  on  the  bench. 
While  sick  in  the  summer  of  1900  he  made  a 
visit  to  San  Francisco  to  escape  the  heat.  A 
few  days  afterwards,  in  the  last-named  city, 
he  passed  away,  leaving  a  widow  and  two 
daughters.  Mrs.  Johnson  is  a  sister  of  Hon. 
Charles  T.  Jones,  of  Sacramento,  who  has  so 
long  been  a  distinguished  leader  of  the  bar  of 
the  interior. 


WILLIAM  H.  PATTERSON. 

The  great  San  Francisco  law  firm  of  Patter- 
son, Wallace  &  Stow  was  formed  in  1863.  It 
was  dissolved  when  William  T.  Wallace  be- 
came a  justice  of  the  Supreme  Court,  in  Jan- 
uarv,  1870.  Mr.  Patterson  and  W.  W.  Stow 
,  continued  together  for  another  year,  when  they 
dissolved  partnership,  and  Mr.  Patterson  prac- 
ticed alone  until  his  death,  about  ten  years 
later. 


History  of  the  Bench  and  Bar  of  California. 


54.-) 


Air.  Patterson  came  to  California  and  located 
in  San  Francisco  in  1857.  He  formed  a  part- 
nership with  Mr.  Stow  (Patterson  &  Stow) 
some  three  years  before  Judge  Wallace  entered 
the  firm.  Mr.  Stow  had  married  his  sister, 
and  come  to  California  some  years  before  him. 
He  was  born  in  Chenango  county.  New  York, 
August  28,  1826.  While  he  was  a  boy  his 
father,  a  good  lawyer,  moved  to  Binghampton, 
New  York.  There  the  son  studied  law  in  his 
father's  office,  but  was  for  a  time  a  pupil  of 
the  celebrated  law  tutor,  Count  Vanderlynn,  of 
Oxford,  who  gave  instruction  to  some  of  the 
greatest  lawyers  of  that  day.  The  most  inti- 
mate friend  William  H.  Patterson  ever  had 
was  a  nephew  of  the  Count,  who  read  law 
about  the  same  time.  Young  Patterson  com- 
menced law  practice  at  Binghamton,  but  soon 
went  to  Elmira.  There  he  soon  attained  a 
leading  place  at  the  bar,  and  won  the  good 
opinio.,  of  Daniel  S.  Dickinson,  Judge  Folgcr, 
Judge  Mason,  Senator  Nye,  and  other  jurists 
and  statesmen.  He  remained  there  until  he 
came  to  this  State. 

Upon  his  arrival  here  he  spent  the  first  three 
months  (he  often  spoke  of  this),  at  the  house 
of  Don  Ramon  de  Zaldo,  near  Mayficld,  in 
Santa  Clara  county,  studyiitg  the  laws  of  this 
State  in  reference  to  land  titles,  and  thoroughly 
reading  all  the  Supreme  Court  Reports. 

De  Zaldo  was  an  early  pioneer  of  California. 
His  life  was  one  of  adventure.  He  was  re- 
peatedly on  the  crest  of  the  wave  of  affluence, 
and  often  in  the  trough  of  the  sea  of  despond. 
A  merchant  in  New  York,  engaged  in  the  Cu- 
ban and  Spanish  trade,  he  was  worth  his  hun- 
dreds of  tliousands  of  dollars,  and  was  noted 
for  his  geni.il  and  social  qualities.  He  be- 
longed to  the  old  school  of  merchants,  and 
entertained  elegantly.  It  is  related  that  on 
one  occasion  he  issued  invitations  to  a  large 
number  of  prominent  public  men  to  an  enter- 
tainment. Among  the  federal  and  state  offi- 
cials invited  was  Daniel  Webster.  Congress 
not  being  in  session  at  the  time,  Mr.  Webster 
was  in  Boston.  He  had  notified  his  acceptance 
of  the  invitation,  but  at  the  last  moment  found 
that  business  engagements  would  prevent  his 
departure  for  New  York  city  in  time.  Mr.  De 
Zaldo  immediately  chartered,  at  heavy  expense. 
a  sfjccial  conveyance  and  brought  Mr.  Webster 
to  New  ^'ork  in  good  season.  Mr.  De  Zaldo 
soon  after  his  arrival  in  California  became 
the  administrator  of  the  l^e  Haro  estate,  out 
of  which  arose  I  lie  t'amous  Potrero  suits  in 
San  Francisco.  It  was  from  his  intimacy  with 
De    Zaldo    in    New    York    that    Mr.    Patterson 


and  John  B.  I'elton  became  associated  as  the 
leading  ctnmsel    in   those   suits. 

Mr.  Patterson's  method  of  practicing  law 
was  very  systematic  and  laborious.  For  more 
than  twenty  years  he  was  accustomed  to  rise 
at  half-past  three  o'clock  in  the  morning,  and 
be  at  his  office  at  four  o'clock — then  and  there 
to  read  the  decisions,  prepare  his  briefs,  draw 
his  pleadings  and  lay  o,ut  the  work  of  the  day 
for  his  clerical  force.  During  business  hours 
he  was  generally  in  court  trying  cases.  When 
court  adjourned  he  dined,  and  retired  to  bed 
almost  immediately,  to  repeat  the  same  routine 
the  next  day.  He  seldom  went  to  places  of 
amusement,  and  never  to  parties.  His  relax- 
ation from  continuous  labor  was  driving  his 
splendid  team,  for  he  was  a  great  lover  ol 
horses,   and,   in   fact,   of   all   animals. 

Mr.  Patterson  died  of  paralysis  on  Novem- 
ber 15,  1881.  He  was  never  married.  We 
conclude  this  notice  of  his  career  with  the 
following  extract  from  the  memorial  of  the 
San   Francisco  Bar  Association: 

"The  announcement  of  Mr.  Patterson's  death 
is  not  an  ordinary  one.  He  was  not  a  man  of 
common  mould.  He  was  frank,  large-hearted 
and  generous,  and  totally  without  outward 
show.  Those  who  know  him  best  can  testify 
to  the  many  acts  of  charity  done  by  him.  and 
while  some  were  much  more  free  in  their  ex- 
pression for  the  suffering  few.  none  were  more 
generous  in  helping  the  needy  with  generous 
aid. 

His  forensic  career  is  known  to  most  of  us, 
and  there  are  members  of  this  association 
who  have  participated  in  his  triumphs.  Gifted 
with  a  retentive  memory  he  had  a  storehouse 
of  legal  learning  from  whicii  he  could  draw 
at  will.  Ambitious,  and  having  faith  in  him- 
self, lie  gave  the  best  years  of  his  life  to  la- 
borious study,  and  those  who  heard  his  argu- 
ments in  the  Supreme  Court  on  the  many  great 
questions  involved  in  the  important  cases  in 
his  charge,  can  he.ir  witness  to  his  severe 
industry.  In  tact,  his  ai)i)lication  to  the  ar- 
duous duties  of  a  lawyer  tended  much  to  bring 
on  the  disease  which  cut  him  down  in  the 
full  ni.it nrity  of  his  powers," 


\VM.  II     KMonF.S   C'CWTON"). 

W'illi.'un  1  Uin  y  Rhodes  was  born  in  North 
Carolina  in  iS_'j.  While  he  was  attending 
Princeton  college.  New  Jersey,  his  fallier.  Col. 
F.  A.  Rhodes,  was  ai)pointeil  United  States 
consul  at  Calveslon,  Texas,  (that  country  not 
ilien  being  a  p.nt  of  the  United  States'),  and 
look  the  son  with  him.  The  latter,  however, 
went  back  to  college  before  becoming  of  age. 
When  he  was  twenty-two.  he  entered  Harvard 
law  school,  and  remained  two  years,     lie  i)rac- 


546 


History  of  the  Bench  and  Bar  of  California. 


ticed  law  a  short  while  in  his  native  town  and 
also  at  Galveston,  becoming  at  the  last  named 
place  Probate  Judge.  He  arrived  in  California 
in  1850,  and  was  practicing  in  San  Francisco 
when  the  o^reat  Vigilance  Committee  of  1856 
was  organized.  He  was  one  of  the  boldest 
leaders  of  this  movement.  When  the  Know 
Nothing  party  sprang  up  and  swept  the  State, 
in  1855,  Governor  Johnson  appointed  Mr. 
Rhodes  his  private  secretary.  Some  written 
criticisms  by  him  of  members  of  the  Know 
Nothing  legislature  met  with  executive  dis- 
pleasure, and  he  resumed  law  practice  in  San 
Francisco. 

.At  the  great  Atlantic  Cable  celebration  in 
that  city  in  1858,  when  Baker  spoke  so  finely, 
Mr.  Rhodes  was  by  his  side  as  poet  of  the  oc- 
casion. His  production  was  quite  happy,  but 
this  poem  is  not  to  be  found  in  the  collection 
of  his  works,  publi.shed  since  his  death.  It  is 
in  the  newspapers  of  that  day  in  full. 

For  five  or  six  years,  Mr.  Rhodes  had  a  con- 
siderable law  practice  in  San  Francisco,  in 
partnership  with  e.x-Judge  E.  W.  F.  Sloan,  a 
South  Carolinian,  one  of  the  strong  men  of 
our  bar. 

In  1863  he  removed  to  Virginia  City,  Ne- 
vada, where  he  practiced  for  about  two  vears. 
He  made  a  fee  there  of  $6000  as  attorney  for 
the  Comet  Mill  &  Mining  Company,  in  a  suit 
involving  tlie  title  to  the  company's  ground. 
Returning  to  San  Francisco,  he  lived  there  the 
rest  of  his  life,  practicing  law.  but  attracting 
attention  chiefly  by  his  literary  productions. 
He  had  written  poems  and  stories  since  boy- 
hood, over  the  name  of  "Caxton,"  and  he  now 
made  himself  famous  in  that  line  of  effort.  He 
also  became  court  commissioner  of  the  old 
Twelfth  District  Court,  a  place  of  some  emolu- 
ment. 

It  was  in  November,  1870,  that  "Caxton"  sent 
to  the  Sacramento  Union  a  story  entitled  "The 
(.^ase  of  Summerfield."  This  story  was  the 
very  acme  of  invention.  Wc  have  seen  men  of 
years  read  it,  tremulously.  So  far  as  regards 
its  effect  upon  the  mind,  it  is  unparalleled.  The 
clever  author  was  a  student  of  science,  and 
at  the  same  time  a  superb  novelist.  His  "Sum- 
merfield Case,"  in  brief  was  this  : 

Gregory  Stunmerfield  was  a  complete  master 
of  chemistry.  He  had  discovered  the  means  of 
dissolving  water  into  its  constituent  elements 
and  of  setting  it  on  fire.  To  a  friend  he  re- 
vealed his  secret  in  glowing  words.  He  apos- 
trophized chemistry  as  "the  youngest  daughter 
ot  the  sciences,  born  amid  flames  and  cradled 


in  rollers  of  fire."  In  his  mighty  knowledge, 
he  exclaimed.  "T  feel  like  a  god,  and  I  recog- 
nize my  fellow-men  but  as  pigmies."  His  friend 
put  him  to  the  test,  and  he  went  at  once  to  the 
wash-stand,  and  tnrowing  a  potassium-coated 
pill  into  the  bowl,  caused  a  sharp  explosion 
followed  by  a  lurid  column  of  fire  shooting  up 
to  the  ceiling.  To  hasten  to  the  end,  Summer- 
field  demanded  a  million  dollars  for  his  secret, 
declaring  that  he  had  the  fate  of  the  world  in 
his  hands,  and  that  he  could  convert  the  ocean 
into  billows  of  fire,  which  all  the  tears  of 
saints  and  angels  could  not  extinguish.  One 
half  of  his  demand  was  raised  for  him  in  San 
Francisco,  and  it  was  decided  to  try  and  secure 
the  remainder  in  New  York  city.  The  citizens 
appointed  Leonidas  Parker,  a  leading  lawyer,  to 
accompany  Summerfield  East,  and  the  pair 
took  the  overland  train.  When  the  cars  were 
gliding  around  that  perilous  spot,  "Cape  Horn," 
in  Placer  count}',  Parker  invited  Summerfield 
to  the  open  platform,  and  while  the  latter  was 
enjoying  the  sublimity  of  the  scenery,  Parker 
pushed  him  off,  and  he  fell  into  the  far  abyss 
below. 

That  was  the  last  of  the  man  who  could  set 
the  world  on  fire. 

Some  years  later,  "Caxton"  produced  his 
greatest  invention,  '  The  Telescopic  Eye."  It 
was  in  his  usual  style  of  scientific  fiction,  in 
the  form  of  a  story  contributed  to  a  San  Fran- 
cisco journal.  "The  Summerfield  Case"  was 
of  the  earth,  earthy,  yet  made  the  most  power- 
ful impression  of  any  of  the  author's  writings, 
because  it  came  home  to  human  beings  and 
dealt  with  their  mortal  fate.  "The  Telescopic 
Eye"  penetrated  the  stars,  and  its  arena  was 
the  blue  vault  of  heaven.  The  Summerfield 
story  ins))ired  terror ;  the  Telescopic  Eye 
Ijrought  a  delightful  wonder. 

Johnnie  Palmer,  aged  nine  years,  resided 
with  his  parents  in  South  San  Francisco.  Ap- 
l)arcntly  he  was  totally  blind,  and  he  was  at 
times  thought  to  be  an  imbecile.  The  precious 
light  of  day  was  painful  to  him,  and  he  was 
confined  to  a  darkened  chamber.  On  Decem- 
ber 12,  1875,  just  after  the  boy  had  gone  to 
bed.  the  cloudless  moon  shone  full  into  his 
face.  As  the  boy  looked  upon  the  lustrous 
queen  of  night,  he  uttered  a  cry  of  joy,  which 
brought  his  parents  to  his  bedside.  The  fact 
was,  the  boy  really  saw  the  moon  as  it  was, 
and  all  that  was  upon  its  surface,  and  he  de- 
scribed its  inhabitants  and  its  vegetation  graph- 
ically. The  focus  of  his  eye  was  fixed  by  na- 
ture at  240,000  miles,  and  while  he  could  scan 


History  of  the  Bench  and  Bar  of  California. 


547 


llie  luuon  dislinctly,  ilie  planets  were  beyond 
his  ken.  Those  who  have  not  read  this  story 
have  a  rich  treat  in  store. 

Mr.  Rhodes  died  at  San  Francisco,  April  14, 
1876,  of  Bright's  disease.  He  was  fifty-three 
years  old.  and  left  a  widow  and  children.  As 
"Caxton,"  he  had  made  himself  celebrated  il 
romance  and  poetry.  He  was  a  member  of  the 
Bohemian  Club,  and  that  association  placed  a 
wreath  upon  his  mortality,  the  brightest  flower 
of  which  was  from  the  hand  of  Joseph  W. 
Winans. 


DAVID  McCLURE. 


This  gentleman  was  born  in  Clark  county, 
Illinois,  in  1843.  His  remote  ancestors  were 
Scotch,  and  he  belonged  to  an  old  Kentucky 
Whig  family.  His  father  was  a  prominent 
merchant  of  Illinois  and  a  member  of  the 
Whig  legislature  of  that  State  which  first 
made  Lyman  Trumbull  a  United  States  sen- 
ator. 

Mr.  McClure  was  educated  at  the  Chicago 
University,  a  Methodist  institution.  He  came 
to  California  in  1856  with  his  father,  who  set- 
tled at  Napa.  In  1861  he  went  to  the  Powder 
River  mines  in  Washington  territory,  and 
worked  as  a  miner  for  one  year.  In  1861  we 
find  him  in  his  miner's  shirt  on  Salmon  river, 
Idaho.  Shortly  afterwards  he  bought  a  mus- 
tang and  rode  a  "pony  express"  through  the 
mining  settlements  of  that  region,  selling  at 
the  same  time  the  peerless  and  ever  memora- 
ble old  Sacramento  Union.  He  received  fifty 
cents  a  copy  for  that  paper,  which  sometimes, 
as  at  Fraser  river,  l)rought  as  much  as  $1  per 
copy. 

In  1862,  Mr.  McClure  removed  to  Guaymas, 
Mexico,  where  he  obtained  employment  as 
clerk  in  an  American  hotel.  He  served  in  this 
capacity  for  some  months,  when  he  was  ap- 
pointed purchasng  agent  for  the  Mena  Prieta 
Mining  Company,  whose  mine  was  located  at 
San  Antonio,  130  miles  from  Guaymas.  He 
was  in  Mexico  two  years,  traveling,  in  the  pur- 
suance of  his  duties,  all  over  the  state  of  So- 
nora,  and  frequently,  as  the  saying  goes, 
"carrying  his  life  in  his  hands,"  through  terri- 
tory infested  by  hostile  Indians. 

When  the  French  made  their  unhappy  in- 
vasion of  Mexico,  Mr.  McClure  returned  to 
San  Francisco.  The  late  Chas.  J.  Brenham, 
once  mayor  of  the  city,  sent  him  to  the 
famous  New  Almaden  mine,  near  San  Jose, 
where  he  was  employed  first  as  clerk  in  the 
mining  company's  general  store.     Later  lie  was 


placed  in  charge  of  the  "planier,"  or  great 
yard  of  the  company,  where  he  daily,  for  one 
year,  superintended  from  three  hundred  to 
four  hundred  Mexican  laborers. 

In  1865,  he  came  once  more  to  the  city  by 
the  sea,  but  in  a  few  weeks  thereafter  he  was 
seen  along  the  line  of  the  Western  Pacific 
Railroad,  superintending  an  army  of  graders, 
having  been  employed  by  Cox  &  Arnold, 
the  contractors.  A  few  months  having  passed 
in  this  capacity,  he  is  next  seen  working  in 
the  mines  and  mills  of  Mariposa  county, 
where  he  remained  one  year.  Thence,  hav- 
ing accumulated  some  money,  the  restless 
young  traveler  journeyed  to  "Old  Tuolumne." 
Tliere  by  hard  work  in  the  mines,  he  slightly 
"increased  his  store."  It  was  the  last  manual 
labor  of  his  life. 

In  1867  Mr.  McClure  determined  to  study 
law.  He  went  to  his  old  Napa  home  and 
entered  the  law  office  of  Hartson  &  Burnell. 
The  next  year  his  legal  studies  were  interrupted 
by  the  excitement  over  the  White  Pine  mines. 
He  visited  that  region  and  remained  several 
months  but  returned  to  his  studies  at  Napa,  and 
continued  them  until  his  admission  to  the  bar 
of  the  local  District  Court  in  1869.  Then  in- 
stead of  commencing  practice  at  once,  feeling 
that  he  was  not  well  grounded  in  legal  science, 
he  went  to  Chicago  to  perfect  himself  for  the 
great  work  of  his  life.  In  1871  he  graduated 
from  the  law  department  of  the  University  of 
Chicago,  and  first  entered  upon  professional 
life  in  that  city,  having  been  admitted  to  the  bar 
of  the   Supreme  Court  of  Illinois,   March  20, 

1871.  He  had  just  got  fairly  launched  on  a 
promising  tide  of  practice  when  the  great  fire 
of  that  year  consumed  his  office  and  library.  He 
was  ruined  in  fortune  but  unbroken  in  spirit. 
He  worked  his  way  back  to  Napa  city,  and 
formed  a  law  partnership  with  Judge  Robert 
Crouch.     This  connection  lasted  from  January, 

1872,  to  June,  1875.  During  that  perio<l  it  will 
be  remembered  that  there  was  great  excitement 
in  Napa  and  Lake  counties  over  the  discovery 
and  develoiJUicnt  of  quicksilver  mines.  There 
was  nuich   litigation  of  titles. 

The  most  noted  case  ever  tried  in  this  State 
aiTecting  a  quicksilver  mine  (excepting  New 
.\lm:i(Kn  ).  was  that  of  Stone  vs.  The  Geyser 
(Juicksilver  Mining  Company.  This  case  in- 
volved the  title  to  some  foin*  miles  of  quick- 
silver mines,  forth  about  one  million  (li>llars. 
It  was  tried  twice,  once  in  the  country  and 
again  before  Judge  Morri.son  in  San  Francisco. 
The  defendant,  for  which  company  Mr.  Mc- 
Clure appeared,  finally  prevailed.     Judge  John 


548 


History  of  the  Bench  and  Bar  of  California. 


Garber  was  associated  with  Mr.  McClure  in 
this  case,  and  it  was  at  Judge  Garber's  sug- 
gestion that  Mr.  McClure  determined  to  change 
his  base  of  legal  operations  to  San  Francisco. 

This  was  the  most  important  and  wisest 
step  of  his  life.  He  removed  in  the  fall  of  1875 
and  practiced  law,  in  connection  with  Garber 
&  Thornton,  for  three  years.  He  then  formed 
a  partnership  with  ex-Congressman  Coghlan, 
which,  after  one  year  was  terminated  by  the 
latter's  death.  A  few  years  later,  on  the  retire- 
ment of  Judge  Samuel  H.  Dwindle  from  the 
bench,  he  joined  that  distinguished  gentleman, 
and  the  law  firm  of  McClure  &  Dwindle  long 
held  a  conspicuous  place  at  this  bar. 

Mr.  McClure's  conduct  of  criminal  cases 
which  attracted  great  public  attention,  had  the 
effect  to  spread  the  popular  belief  that  he  made 
criminal  business  a  specialty.  Tliis  impres- 
sion was  altogether  erroneous.  He  was  ac- 
complished and  equally  proficient  and  efficient 
in  all  departments  of  the  law.  He  was  very 
fond  of  civil  practice,  and  by  far  the  larj^er 
part  of  the  business  which  the  firm  of  McClure 
&  Dwinelle  had  in  hand  was  of  a  civil  nature. 
After  McClure's  removal  to  San  Francisco 
his  life  was  .one  of  uninterrupted  activity 
and  unbroken  success.  The  Pinnev  cases  first 
spread  his  fame  abroad.  Pinney,  it  will  be 
remembered,  had  to  answer  to  some  seventy 
charges  of  forgery.  Then  followed  a  long  and 
hot  struggle  in  the  courts,  which  resulted  in 
the  dismissal  of  all  of  the  indictments.  Mr. 
McClure  was  Pinney's  counsel  throughout  the 
protracted  fight,  and  his  patience,  industry  and 
ability  were  then  signally  exhibited. 

In  the  Kalloch  cases,  wherein  it  was  sought 
to  have  the  maj'or  removed  from  the  ofiice, 
and  also  where  he  was  arraigned  by  Judge 
Freelon  for  contempt  of  court,  Mr.  McClure 
made  able  and  successful  defenses. 

Mr.  McClure  entered  political  life  in  1878, 
taking  an  active  part  in  party  debate  from  the 
Republican  standpoint.  In  the  following  year 
his  party  sent  him  to  the  lower  branch  of  the 
legislature.  He  represented  the  tenth  sena- 
torial district.  Being  re-elected,  he  was  made 
chairman  of  the  judiciar}^  committee.  He  was 
for  several  years  a  member  of  the  Republican 
State  central  committee.  While  in  the  legsla- 
ture  he  prepared  the  well  known  McClure 
charter  for  the  city  and  county  of  San  Fran- 
cisco a  most  elaborate  and  carefully  drawn 
document,  which  was  passed  by  both  houses 
and  received  the  executive  approval,  but  which 
the  Supreme  Court  declared  was  unconstitu- 
tional. 


He  was  admitted  to  the  Supreme  Court  of  the 
United  States  in  May,  1882.  He  married  at 
San  Francisco  Miss  Emma  Folsom,  daughter  of 
A.   Folsom,  of  Maine,  March  4th,  1876. 

Mr.  McClure  was  a  logical  reasoner,  a  pa- 
tient investigator,  and  had  a  rare  power  of 
persuasion.  Of  striking  personal  appearance, 
pleasing  address,  broad  information,  and  most 
happy  in  the  art  of  expression,  he  presented 
himself  before  his  juries  full  of  his  theme, 
grasping  like  a  master  the  facts  and  law  of 
his  case.  Possessing  a  high  order  of  intelli- 
gence, and  habits  of  extraordinary  industry  and 
vigilance,  his  success  was  but  the  natural  se- 
quence of  his  character  and  the  reward  of  his 
efforts. 

Mr.  McClure  died  at  San  Francisco  De- 
cember 8,   1888. 


EDWARD  B.  STONEHILL. 

Major  Edward  B.  Stonehill,  district  attor- 
ney of  San  Francisco  in  1887-88,  was  born  in 
Germany,  January  21,  1829.  He  came  to  the 
Cnited  States  in  boyhood,  and  served  in  our 
army  through  the  entire  war  with  Mexico. 
Coming  to  California  in  1852,  he  soon  went  to 
Nevada,  and  followed  trading  and  mining  until 
1859.  As  a  member  of  the  Nevada  county 
rifle  company,  he  took  part  in  the  war  with  the 
Piute  Indians.  He  fought  in  the  Confederate 
army,  being  major  on  the  staffs  of  General 
Armstrong  and  General  Joe  Selby,  taking  part 
at  Shiloh  and  in  other  great  battles. 

Returning  to  Nevada  city,  he  began  reading 
law  in  the  office  of  Garber  &  Thornton.  He  was 
there  admitted  to  the  bar.  In  1880  he  removed 
to  San  Francisco.  Before  he  became  district 
attorney,  as  before  stated,  he  was  first  assistant 
in  that  office  under  Hon.  J.  D.  Sullivan,  1883-84. 

Major  Stonehill.  although  a  Confederate 
veteran,  was  often  a  guest  of  honor  at  Grand 
Army  gatherings.  He  had  a  cheerful  spirit,  and 
his  speech  was  always  full  of  interest.  He  died 
at  San  Francisco,  February  5,  1898,  suddenly, 
of  apoplexy,  leaving  a  widow  and  a  married 
stepdaughter.  He  belonged  to  the  Masons,  Red 
Men  and  American  Legion  of  Honor,  and  the 
Masons  conducted  the  funeral  rites. 


C.  T.  RYLAND. 

Caius  T.  Ryland,  the  San  Jose  banker,  and 
father  of  J.  R.  Ryland,  attorney-at-law  of  that 
city,  was  a  lawyer  in  his  early  life.  A  far- 
mer's son,  born  in  Missouri  on  June  30,  1826, 
he  was  a  California  pioneer  of  July  30,  1849. 
With  his  name  on  the  roll  of  the  Society  of 


History  of  the  Bench  and  Bar  of  California. 


.■)4U 


California  pioneers  at  San  Francisco,  in  addi- 
tion to  that  of  J.  R.  Ryland,  there  also  appear 
those  of  his  five  other  sons,  Caius  T..  Jr., 
Charles  B.,  Dwight  E.,  Francis  P.,  and  John 
\V.  The  sons  of  pioneers  are  entitled  to  mem- 
bership in  these  pioneer  societies. 

Mr.  Ryland  was  private  secretary  in  1850 
to  our  first  Governor,  Peter  H.  Burnett.  He 
and  Judge  Wm.  T.  Wallace  married  daughters 
of  Governor  Burnett.  With  the  exception  of 
a  brief  experience  in  the  mines  in  1849,  and 
a  short  stay  in  San  Francisco  in  1850,  Mr.  Ry- 
land always  lived  in  San  Jose.  He  was  a 
member  of  the  assembly  in  1855,  as  a  Demo- 
crat, but  did  not  vote  for  either  Broderick  or 
Gwin  for  United  States  senator.  He  was  again 
elected  to  the  assembly  as  a  Democrat  at  the 
session  of  1867-68,  and  was  chosen  speaker  of 
that  body.  About  that  time  he  retired  from 
law  practice.  He  had  long  before  become  a 
wealthy  man  as  the  result  of  judicious  invest- 
ments in  real  estate  at  San  Jose  and  San  Fran- 
cisco. TTienceforth  he  devoted  himself  to  bank- 
ing. He  was  a  generous  supporter  of  the  Cath- 
olic church  and  of  many  charities.  His  was 
an  unstained  life  of  three-score-and-ten,  and 
ended  at  San  Jose  on  December  15,  1897.  His 
estate  was  worth  about  $3,000,000. 


ALEXANDER  H.  LOUGHBOROUGH. 

Mr.  Loughborough  was  born  at  Warrcnton, 
Virginia,  in  1834,  and  was  a  graduate  of 
Georgetown  (D.  C.)  College.  He  came  first 
to  California  in  i860,  and  practiced  law  in 
San  Francisco  until  1867.  He  then  went  to 
Wheeling,  W.  Va.,  where  he  married,  and  lo- 
cated at  Baltimore,  Md.  After  two  years  he 
returned  to  San  Francisco.  He  acquired  a 
large  practice,  principally  in  probate,  and  a 
comfortable  home  near  the  spot  where  the 
si)londid  St.  Mary's  Cathedral  was  afterwards 
erected.  Tulius  George  was  his  partner  until 
Mr.  George's  death.  For  a  short  time  there- 
after, Mr.  Wm.  Mayo  Newhall  was  associated 
with  him.  Mr.  Newhall  was  one  of  the  widely 
known  family  of  brothers  (sons  of  the  pio- 
neer, H.  M.  Newhall),  who  are  engaged  in  va- 
rious lines  (jf  business  on  a  lari;c  m-jiK'.  and 
whose  name  is  borne  by  a  pretty  town  near 
Los  Angeles.  Mr.  Wm.  Mayo  Newhall  ac- 
quired an  interest  in  Mr.  Loughborougli's  ex- 
tensive law  business  soon  after  his  adnii.ssioii 
to  the  bar  of  the  Supreme  Court,  but  aban- 
doned the  profession  after  a  short  trial. 

Mr.  Loughborough  was  a  moral  and  relig- 
ious man,  of  the  Catholic  faith.     He  was  the 


legal  adviser  of  Archbishop  Alemany  and  his 
successor.  Archbishop  Riordan  ;  and  was  one 
of  the  executors  of  the  will  of  Mrs.  Annie 
Donahue,  widow  of  Peter  Donahue.  He  was 
a  broiher-in-law  of  the  late  Gen.  E.  D.  Keyes. 
He  left  a  widow  and  four  children.  He  was 
of  stout  build,  handsome  face,  and  always  the 
picture  of  health  ;  fond  of  athletics  and  a  great 
walker.  He  died  suddenly,  of  apoplexy,  at  his 
home,  soon  after  retiring  at  night,  January 
28,  1897- 


A.   B.  DIBBLE. 


.A.  B.  Dibble  was  born  in  Lockport.  Erie 
county,  N.  Y.,  May  29,  1829.  He  studied  law 
with  Elijah  Cook,  and  shortly  after  he  was 
admitted  to  the  bar,  he  went  to  Nashville. 
Tenn.,  where  he  practiced  successfully  for  a 
short  period.  Then  he  returned  to  his  native 
State,  and  when  the  gold  discovery  in  Cali- 
fornia was  heralded  throughout  the  East  he 
caught  the  fever,  and  in  June,  1852,  landed  at 
San  Francisco.  He  soon  struck  out  for  the 
mines  at  Sonora,  but  remained  only  a  few 
months,  and  located  at  Grass  Valley  in  the 
spring  of  1853  with  his  father.  Colonel  O.  H. 
Dibble. 

During  those  exciting  times  he  considered 
mining  more  profitable  than  his  profession,  and 
with  his  father  and  the  late  United  States  Sen- 
ator Hearst,  took  the  pick,  shovel  and  rocker, 
and  mined  on  Gold  Flat,  midway  between 
Grass  Valley  and  Nevada  City.  In  1854  li*-'  was 
married  to  Miss  Emma  Allen,  who  had  arrived 
there  in  1852.  He  then  commenced  the  prac- 
tice of  his  profession. 

His  first  case  in  Grass  Valley  was  over  the 
ownership  of  a  mule,  which  he  successfully 
conducted,  and  received  a  $50  slug  for  his 
services.  In  early  days  he  crossed  swords  with 
such  eminent  l.iwyers  and  statesmen  as  Wil- 
liam M.  Stewart,  T.  B.  McFarland,  Aaron  A. 
Sargent,  Addi.son  C.  Niles,  Judge  David  Bcl- 
(len.  Thomas  P.  Hawley.  Niles  Searlcs  and 
others,  and  was  accounted  .in  excellent  young 
lawyer. 

When  the  Wa>lioc  excilenienl  brt)ke  out  he 
left  ;i  lucrative  jjractice  to  luuit  for  the  i)recious 
metal.  When  the  Hurry  subsided  he  returned 
to  (irass  Valley  and  ever  after  made  his  home 
there.  He  was  actively  identified  with  much 
of  the  important  litigation  which  in  early  days 
was  very  profitable.  Dibble  made  much  money 
but  like  most  of  the  early  pioneers,  permitted 
it  to  slip  through  his  hands.  He  was  always 
active  in  politics,  but  never  iicid  ofiice  except 


550 


History  of  the  BoicJi  and  Bar  of  California. 


in  1883,  when  Governor  Stoneman  appointed 
him  fish  commissioner.  In  1856,  however,  he 
was  one  of  the  Know-Nothing  nominees  for 
congress,  but  was  defeated.  Ever  after  in  his 
life  he  was  a  staunch  Democrat,  spending 
money  freely  to  advance  the  cause  of  the  party. 
For  a  short  time  in  the  fifties  he  served  as 
Brigadier  General   of  the   State  militia. 

He  died  at  Grass  Valley,  Feb.  16,  1896.  A 
widow,  two  sons  and  one  daughter  survived 
him;  also  two  sisters,  one  residing  in  Massa- 
chusetts and  one  in  New  York. 


GEO.   R.   B.   HAYES. 


Geo.  R.  B.  Hayes  was  stricken  down  in  the 
prime  of  life  and  in  the  full  tide  of  profes- 
sional prosperity.  He  was  a  nephew  of  the 
early-day  lawyer,  William  Hayes,  and  was 
born  in  Belfast,  Ireland,  on  May  22,  1847.  He 
was  educated  at  Chichester  Academy  in  that 
city,  came  to  California  in  August,  1863,  and 
was  admitted  to  the  bar  of  our  Supreme  Court 
on  April  5,  1869.  At  the  sesson  of  the  legis- 
lature. 1869-70,  Mr.  Hayes  was  a  member  of 
the  assembly  from  San  Francisco  and  was 
chairman  of  the  committee  on  military  af- 
fairs. He  was  of  Democratic  politics.  In  No- 
vember, 1886,  he  was  elected  a  member  of  the 
board  of  freeholders  which  framed  a  charter 
for  the  city  and  county  of  San  Francisco,  but 
which  instrument  was  defeated  at  the  election 
held  to  pass  on  the  same,  April  12,  1887. 

Associated  with  Mr.  Hayes  and  his  uncle  for 
a  short  time  was  John  A.  Stanly,  before  the 
latter's  becoming  County  Judge  in  1870.  In 
1881,  Mr.  William  Hayes  having  died.  Judge 
Stanly  being  in  private  life,  and  Thomas  P. 
Stoney,  ex-County  Judge  of  Napa,  having  re- 
moved to  San  Francisco,  the  firm  of  Stanly, 
Stoney  &  Hayes  (Geo.  R.  B.)  was  formed,  and 
lasted  for  ten  years,  until  Judge  Stoney's  death. 
The  firm  was  then  Stanly  &  Hayes  until,  in 
1894  these  gentlemen  were  joined  by  Garret 
McEnerney  and  II.  W.  Bradley.  Mr.  Mc- 
Enerney  withdrew  after  about  one  year,  and 
at  the  death  of  Mr.  Hayes  the  firm  was  Stan- 
ly, Hayes  &  Bradley.  In  the  great  case  of 
General  D.  D.  Colton's  widow  against  the  rail- 
way kings,  tried  before  Hon.  Jackson  Temple, 
Superior  Judge  of  Sonoma  county,  in  1884-5, 
the  trial  of  which  engaged  an  array  of  the 
best  professional  talent  on  both  sides,  Mr. 
Hayes  especially  distinguished  himself  on  the 
part  of  the  plaintiff.  For  fully  twenty  years 
there  w^as  no  more  laborious  leader  of  the  met- 
ropolitan  bar,   and   few   who  enjoyed  a  larger 


revenue  from  the  practice.  He  died  suddenly, 
on  April  5,  1896,  and  was  buried  with  im- 
posing ceremonies  from  the  great  cathedral  on 
Van  Ness  avenue.  A  large  concourse  attended 
and  Archbishop  Riordan,  who  had  been  his 
client,  spoke  fitting  words  of  eulogium. 

Mr.  Hayes  left  no  issue.  His  wife,  who  sur- 
vived him.  was  a  daughter  of  his  uncle  and 
first   law  partner. 


WILLIAM  BLANDING. 

Captain  Islanding  was  born  in  South  Caro- 
lina in  1818,  of  English-French  lineage.  His 
father  was  a  distinguished  lawyer  who  in  the 
nullification  days,  supported  President  Jack- 
son and  was  tendered  by  the  latter  the  post- 
master-generalship, but  declined  the  honor. 
Mr.  Blanding's  mother  was  a  daughter  of  the 
celebrated  South  Carolina  chancellor,  De  Saus- 
sure.  Himself  graduating  at  the  South  Caro- 
lina college  in  his  eighteenth  year  he  became 
tutor  there  of  mathematics.  Resigning  that 
place  he  turned  to  law,  and  was  admitted  to 
the  bar  in  1840.  In  1846  he  was  among  the  first 
to  enlist  in  the  army  for  the  War  with  Mex- 
ico. He  raised  a  company  in  Charleston,  and, 
as  captain,  led  it  into  the  struggle,  in  which 
he  fought  to  the  end.  "Captain  Blanding," 
said  General  Quitman,  in  his  report  of  the 
capture  of  the  City  of  Mexico,  "whose  conduct 
happened  to  fall  under  my  own  eyes,  was  con- 
spicuous for  his  bravery  and  efficiency." 

Captain  Blanding  came  to  San  Francisco 
in  1854,  his  family  following  the  next  year.  In 
1855  President  Pierce  appointed  him  United 
States  district  attorney  for  California,  and  he 
held  the  office  about  two  years.  He  was  presi- 
dent of  the  Ophir  Silver  Mining  Company 
during  the  great  period  of  mining  development 
and  litigation,  1860-65.  He  w^as  a  director  of 
the  State  Agricultural  Society,  and  did  a  great 
deal  to  encourage  the  introduction  of  silk  cul- 
ture   in    this    State. 

Captain  Blanding  was  a  veteran  of  the 
Mexican  War.  He  was  appointed  a  State 
harbor  commissioner  by  Governor  Irwin  on 
February  28,  1876,  and  held  the  office  until 
1883.  He  died  at  San  Francisco  on  October 
25.  1888.  His  wife  died  on  September  22, 
1885.  Their  .son  is  Mr.  Gordon  Blanding,  who 
has  been  in  practice  at  the  San  Francisco  bar 
for  many  years. 


CLARK  CHURCHILL. 

Clark   Churchill,  who  was  a  well-known  at- 
torney in   San   Francisco  in  the  years   1867-77, 


History  of  the  Bench  and  Bar  of  California. 


551 


had  formerly  been  the  office  attorney  of  Gen. 
Chas.  H.  S.  Wilhams  and  Lorenzo  Sawyer. 
Later  he  had  practiced  in  Virginia  City,  Ne- 
vada. During  his  second  stay  in  San  Francisco 
he  married,  built  up  a  considerable  practice, 
and  bought  a  home  in  the  Mission  district. 
He  removed  to  Arizona  in  1877.  His  first  loca- 
tion was  at  Prescott,  where  he  obtained  a 
fine  law  business.  He  was  a  native  of  Penn- 
sylvania, and  had  in  him  a  strain  of  Indian 
blood,  which  his  physiognomy  suggested,  and 
which,  indeed,  we  learned  from  his  own  lips. 
He  was  a  man  of  high  temper,  which  he  usually 
held  in  good  control ;  and,  indeed,  it  was  well 
said  of  him  at  his  death  that  he  was  a  man 
of  great  force  of  character  and  a  natural  leader. 
He  was  appointed  attorney  general  by  Gover- 
nor Tritle,  and  was  an  efficient  and  painstaking 
officer.  In  1880  he  became  interested  in  the 
construction  of  the  Arizona  canal,  in  the  Salt 
River  valley,  and  had  since  been  closely  iden- 
tified with  the  interests  of  that  section.  He 
went  from  Prescott  to  Phoenix  to  reside  in 
1886,  and  had  always  stood  at  the  head  of  the 
Phoenix  bar.  For  several  years  he  was  coun- 
sel for  the  canal  companies  on  the  north  side 
of  the  river,  and  conducted  several  cases  of 
great  magnitude  in  the  Arizona  courts.  He 
was  one  of  the  attorneys  who  prepared  the  de- 
fense against  the  great  Reavis  claim,  which 
was  shortly  before  his  death  decided  in  favor 
of  the  people. 

General  Churchill  was  a  Republican  and  for 
years  a  power  in  Arizona  politics.  Of  late 
years  he  had  not  taken  an  active  part  in  politi- 
cal contests.  He  had  been  a  prominent  Mason 
and  Odd  Fellow,  but  upon  uniting  with  the 
Catholic  church  a  few  years  before  his  death, 
he  withdrew  from  all  secret  societies.  He  left 
a  widow  but  no  children,  and  considerable 
property  in  Phoenix,  and  vicinity.  A  residence 
which  he  had  in  course  of  construction  at  his 
death,  was  designed  to  be  the  finest  in  Ari- 
zona. General  Churchill  died  at  Phoenix,  April 
4th,  1896.    His  age  was  fifty-nine  years. 


S.  G.  HILBORN. 


Samuel  G.  Hilborn,  at  different  periods. 
United  States  district  attorney,  member  of  the 
constitutional  convention,  and  congressman, 
was  born  in  Maine,  December  2,  1834.  He  was 
graduated  from  Tufts'  College,  Massachusetts, 
in  1859,  and  was  admitted  to  the  bar  in  Port- 
land. Me.,  and  settled  in  Vallejo.  Cal.,  in  1861. 
During  the  early  years  of  his  life  there,  while 
pursuing  law  practice,  he  was  successively  city 
trustee,   school   director,   and   a   county  super- 


visor. He  was  state  senator  at  the  sessions 
of  1875-76,  and  1877-78.  A  member  of  the 
constitutional  convention  of  1878,  he,  in  the 
following  year,  opposed  the  adoption  of  the 
new  constitution.  He  was  United  States  dis- 
trict attorney  at  San  Francisco,  1883-86.  In 
November,  1892,  he  was  the  Republican  candi- 
date for  representative  in  congress  from  the 
third  district,  and  received  the  certificate  of 
election,  but  his  Democratic  opponent,  W.  B. 
English,  contested  and  was  awarded  the  seat. 
He  was  elected  to  this  office  in  1894.  and  again 
in  1896,  and  was  defeated  for  the  Republican 
nomination  in  1898  by  Hon.  Victor  H.  Metcalf, 
who  was  elected  his  successor.  When  he  be- 
came district  attorney,  he  removed  from  Val- 
lejo to  San  Francisco.  When  he  left  that  office 
he  fixed  his  residence  at  Oakland.  It  was 
generally  understood  that  President  McKinley 
would  have  appointed  him  minister  to  Portugal 
had  not  his  death  prevented.  This  occurred  at 
Washington  city,  April  19,  1899.  He  left  an 
unmarried  daughter. 


M.  C.   BLAKE. 


I^Iaurice  C.  Blake,  who  was  so  long  on  the 
bench  in  San  Francisco,  and  who  was  for  a 
term  mayor  of  that  city,  was  born  in  Maine 
on  October  20,  181 5.  He  was  a  graduate  of 
Bowdoin  College,  practiced  law  in  Camden, 
served  in  the  legislature,  and  was  collector  of 
the  port  at  Belfast.  He  came  to  San  Francisco 
in  1853.  in  a  steamer  by  way  of  Cape  Horn. 
He  was  an  active  member  of  the  great  vigi- 
lance committee  of  1856,  and  when  Judge  Terry 
stabbed  Hopkins,  an  officer  of  that  organiza- 
tion, he  advised  that,  in  the  event  of  Hopkins' 
death.  Judge   Terry  be   hanged. 

He  was  generally  accounted  a  man  of  calm 
judgment  and  enjoyed  the  public  confidence 
fully  and  to  the  last.  The  people's  party,  born 
of  the  vigilance  committee,  elected  him  County 
Judge  in  1857,  and  he  served  until  April,  1862. 
The  office  of  Probate  Judge  being  created,  the 
same  party  elected  him  to  that  office  for  a  full 
term  of  four  years,  ending  January,  1868.  He 
served  in  the  assembly  at  the  eighth  session 
(January-April,  1857),  being  among  the  very 
few  Republicans  in  that  body,  and  was  chair- 
man of  the  San  Francisco  delegation.  It  was 
the  session  when  Broderick  and  Gwin  were 
elected  United  States  senators,  Judge  Blnkc 
voting  for  Edward  Stanly  and  A.  A.  Sargent. 

.\ftcr  four  years  of  quiet  law  practice,  the 
Judge  was  elected  to  the  bench  of  the  munici- 
pal criminal  court,  defeating  the  Democratic  in- 
cumbent. Hon.  Dclos  Lake.     We  were  present 


552 


History  of  the  Bench  and  Bar  of  California. 

JOHN  B.  HARMON. 


when  he  sentenced  the  Broiherlon  forgers  to 
the  State  prison.  He  intimated  that  he  was  not 
sure  that  he  ought  not  to  make  their  terms  of 
imprisonment  longer.  "We  ask  no  favors  of 
this  court!"  the  elder  brother  cried  out.  Tlie 
Judge  said  nothing.  He  told  us  afterwards 
that  Chief  Justice  Wallace,  of  the  Supreme 
Court,  had  said  to  him  that  if  he,  Wallace,  had 
been  in  his,  Blake's,  place,  when  the  prisoner 
hurled  his  defiance,  he,  Judge  Wallace,  would 
have  added  soine  to  the  term  of  imprisonment 
already  announced.  (In  this  connection,  see 
the   Pickett  contempt   case.) 

Judge.  Blake  was  re-elected  in  the  fall  of 
1875.  by  an  unusually  large  majority  over 
Frederic  Hall.  His  second  term  of  four  years 
just  ended  with  the  coming  in  of  the  new  con- 
stitution. After  two  years  he  became  mayor 
of  San  Francisco,  being  chosen  over  a  strong 
man  of  the  Democracy,  Robert  Howe.  The  city 
officers  then  elected,  by  a  special  act  of  the 
legislature,  only  held  for  one  year,  so  as  to 
make  the  elections  fall  on  even-numbered  years. 
Judge  Blake,  as  a  matter  of  course,  made  a 
most  vigilant  and  faithful  mayor.  His  party 
renominated  him  in  1882,  but  the  Democrats 
put  up  Washington  Bartlett,  who  had  long 
enjoyed  the  favor  of  the  Bulletin, and  who  now 
received  that  journal's  support,  and  was  elected. 
After  his  term  as  mayor,  Judge  Blake  went 
into  law  practice  with  his  nephew,  M.  B.  Blake. 
The  latter  died  on  February  8,  1886,  a  native 
of  Maine,  aged  forty-one  years.  Shortly  there- 
after, Judge  B.  became  associated  with  Geo. 
N.  Williams  and  Edward  C.  Harrison.  After 
about  three  years  Mr.  Williams  withdrew.  The 
firm  was  Blake  &  Harrison  at  the  time  of  the 
Judge's  death,  which  occurred  on  September 
27,  1897.     The  Judge  was  a  bachelor. 

During  the  trial  of  the  great  and  sensational 
divorce  case  brought  against  Senator  Sharon 
in  1885,  when  it  was  thought  a  commission 
would  be  necessary  to  ascertain  the  character 
and  value  of  the  defendant's  property,  the  at- 
torneys for  the  respective  sides  submitted  lists, 
one  on  each  side,  of  names  of  re.sponsible  cit- 
izens, from  which  the  court  might  select  the 
commissioners.  Judge  Blake's  name,  and  his 
only,  appeared  on  both  lists.  In  the  summer 
of  1882,  Gen.  W.  H.  L.  Barnes  went  independ- 
ently to  Sacramento  and  made  a  strong  plea 
before  the  Republican  state  convention  for  the 
nomination  of  Judge  Blake  for  Governor.  The 
General  was  at  his  best,  showing  exceptional 
enthusiasm,  but  M.  M.  Estee  was  nominated. 
General  Barnes'  speech  is  to  be  found  in  full 
in  the  dailies  of  that  time. 


John    B.   Harmon  was  born  in  Ohio  in   1822, 
and  was  admitted  to  the  bar  in  that  State  after 
graduating     from  Yale  College.     His     earliest 
work   at   the   bar   was   at    New   Orleans,    from 
which   city   he   came   to   California   in   1853,   in 
company    with    Milton    S.    Latham    by    way    of 
Panama.      He    and    Latham    were    partners    in 
Sacramento  for  a  few  years.     He  was  in  Vir- 
ginia City,   Nevada,  in  its  days  of  prime,  and 
removed  to  San  Francisco  in  1864.     It  was  in 
June,     1893,    that    he    told    us    the    following 
incident :     "I  might  have  been  elected  Gover- 
nor of  California  in   1855,  but  could  not  bring 
myself  to  accept  the   Know   Nothing  nomina- 
tion.     That    short-lived    party,    which    elected 
J.  Neely  Johnson  Governor  in  that  year,  really 
wanted  for  its  standard-bearer  a  man  who  had 
been  a  Democrat,  as  most  likelv  to  defeat  the 
Democratic    nominee.      Johnson     had    always 
been   a  Whig.     Influential   leaders  of  the  new 
party   were   opposed   to   him   on    the    score   of 
availability,    and    it    was    arranged    to    present 
my  name  to  the  State  convention.     But  I  was 
not  a  Know  Nothing,  and.  as  it  was  a  secret 
organization,  I  had  to  be  initiated.     The  elec- 
tion was  to  take  place  in  the  fall  of  the  year, 
and    the    State   convention    was    to   meet   in    a 
week    or    so.      I    was    introduced    to    a    Know 
Nothing  lodge  at  Sacramento,  as  a  candidate 
for  initiation.     While  the  oath  was  being  put 
to    me,    my    hand    uplifted,    when    it    came    to 
certain   words  proscribing   Catholics,   my  hand 
went  down.      It   was  a  painful   moment  to  all 
of   us.      I   said:      'Gentlemen,   this   ofifends   my 
sense    of   justice.      Let    me    withdraw;'    and    I 
was   escorted   out,   to   remain    in   private   life." 
Mr.    Harmon    was    associated    with    P.    G. 
Galpin    in    practice    at    San     Francisco    from 
1877  to  1881.     Some  years  later  he  and  D.   P. 
Belknap     were     together     for    a    considerable 
period,  but  their  names  were  not  associated.  In 
1863,  by  act  of  the  legislature  of  March  28th, 
Mr.    Harmon  and  Hon.  John   Currey  and   H. 
P.    Barber    were    appointed    a    commission    to 
compile  and  revise  all  the  laws  of  this  State. 
(See  Laws  of  1867-68,  page  435.) 

Mr.  Harmon  like  his  old  friend,  the  eminent 
\)v.  John  F.  Morse,  Sr.,  was  an  enthusiastic 
Odd  Fellow.  The  doctor  organized  the  order 
in  Germany,  and  Mr.  Harmon  performed  the 
same  mission  in  Australia,  New  Zealand 
and  Tasmania.  Mr.  Harmon  was  grand 
master  of  the  order  in  this  State  and  repre- 
sented it  for  ten  years  as  delegate  to  the 
sovereign  lodge.  In  187 1  he  was  elected 
grand  sire  of  the  sovereign  lodge  of  the  world. 


History  of  the  Bench  and  Bar  of  California. 


553 


He  died  at  his  home  in  Berkeley  on  the  7th  of 
February,  1897,  leaving  a  widow,  a  daughter, 
Mrs.  Julian  Le  Conte,  and  two  sons,  Dana 
Harmon,  mining  superintendent  in  Nevada 
county,  and  Dr.  R.  Harmon  of  Oakland. 


CLARENXE    R.    GREATHOUSE. 

Gen.  Clarence  R.  Greathouse,  practically 
prime  minister  for  many  years  of  the  kingdom 
of  Corea.  resided  and  practiced  law  in  San 
Francisco  from  1870  to  1886.  He  was  asso- 
ciated first  with  Louis  T.  Haggin,  son  of 
James  B.  Haggin,  then  with  William  M. 
Stewart,  next  with  Gordon  Blanding,  and 
from  1881  to  1884  with  Mr.  Blanding  and  Hon. 
Wm.  T.  Wallace.  He  was  an  editorial  writer 
on  the  Examiner  in  1885-86. 

In  1886  he  went  to  Yokohama,  vmder  ap- 
pointment of  President  Cleveland,  as  U.  S. 
consul-general  for  Japan.  At  the  close  of  his 
four  years'  term  in  that  office,  the  Corean  gov- 
ernment secured  his  services  as  foreign  ad- 
viser. He  achieved  a  high  reputation  for 
wisdom  in  council  during  the  troubles  that 
afterwards    afflicted    that    country. 

Rev.  George  Heber  Jones,  a  missionary  in 
Corea,  said  in  an  interview  with  the  San 
Francisco  Call  of  March  31st,  1897,  that 
Gen.  Greathouse  had  been  instrumental  in 
introducing  judicial  reforms  in  that  country 
which  put  an  end  to  a  long  era  of  corruption 
and  cruelty.  Gen.  Greathouse  was  a  near  rela- 
tive of  Lloyd  Tevis,  the  capitalist.  He  reg- 
istered as  a  voter  in  San  Francisco  on  Aug- 
ust 8,  1871,  as  a  native  of  Kentucky,  then 
aged  27  years.  He  died  in  the  Corean  capital, 
lamented  by  the  king  and  people,  on  the  21st 
of  October,  1899.  He  was  buried  there  with 
great    ceremonies. 

The  General  was  never  married.  His  mother 
who  was  75  years  of  age  when  he  died,  was  re- 
siding with  him.  He  left  a  will  making  her 
executrix,  and  his  sole  legatee.  He  had 
personal  property  in  San  Francisco  worth 
ten  thousand  dollars,  and  the  mother  was  ap- 
pointed executrix  by  the  San  Francisco  Su- 
perior Court  on  the  28th  of  December,  1899. 
Pending  the  usual  course  of  administration, 
she  returned  tn  iicr  home  in  Kentucky.  Gen. 
Greathouse  did  not  relinquish  his  American 
citizenship. 


JOHN   E.   ABBOTT. 


Fourth  ward  in  1885-86.  and  was  chairman 
of  the  judiciary  committee.  During  this  period 
he  was  counsel  for  Mrs.  Hannah  Ingram  in 
her  litigation  with  her  husband,  and  was  shot 
by  the  latter  and  seriously  wounded.  In  the 
spring  of  1887  he  bought  a  residence  at 
Mountain  View  and  embarked  in  agriculture. 
He  was  there  mortally  injured  by  a  runaway 
horse  in  November,  1887,  and  on  the  i6th  of 
that  month  died,  aged  fifty-four  years. 


CHAS.   A.   TUTTLE. 


John  E.  Abbott  was  admitted  to  the  bar  in 
his  native  state.  New  Hampshire.  He  came  to 
California  in  1858.  and  settled  in  San  Fran- 
cisco   in    1882.      He    was    supervisor    for    the 


Chas.  A.  Tuttle  was  born  in  Genessee 
county,  New  York,  November  10,  1818.  He 
was  a  descendant  of  William  Tuttle,  who 
settled  in  Connecticut  in  1671.  He  attended 
Hobart  College  at  Geneva,  belonging  to  the 
class  of  1844.  He  moved  to  Milwaukee,  Wis., 
in  1845,  and  was  admitted  to  the  bar  in  that 
year,  and  practiced  his  profession  there  until 
early  in  1849.  In  the  same  year  he  left  Mil- 
waukee with  a  party  of  five,  and  arrived,  in 
Placer  county,  California,  in  October,  1849. 
Mr.  Tuttle  engaged  in  mining  on  the  Ameri- 
can river,  and  after  about  a  year,  returned 
to  Milwaukee,  and  in  1851  came  back  to  Cali- 
fornia with  Mrs.  Tuttle.  After  making  an 
unsuccessful  attempt  at  merchandising,  he 
opened  a  law  office  at  Michigan  Bluff,  in  1853. 
Leland  Stanford  was  the  justice  of  the  peace 
of  that  place  at  that  time.  In  1856  Mr.  Tuttle 
moved  to  Auburn,  the  county  seat. 

In  1853  he  was  elected  a  member  of  the 
Slate  senate,  and  represented  Placer  county 
during  the  first  memorable  Gwin-Broderick 
contest.  He  became  a  Republican  almost  at 
the  organization  of  the  party.  He  was  chair- 
man of  the  Republican  State  convention  held 
in  1859.  and  was  an  elector  on  the  Republican 
ticket  for  i860,  and  as  such  stumped  the  State. 

In  1863  he  was  appointed  reporter  of  the 
Supreme  Court,  and  held  this  office  until 
1867. 

He  was  afterwards  appointed  as  one  of  the 
commissioners  on  the  revision  of  the  codes, 
in  company  with  Sidney  L.  Johnson.  He  de- 
clined an  appointment  to  the  bench,  and  also 
as  a  regent  of  the  University  of  California. 
In  1867  he  was  elected  as  a  member  of  the 
assembly,  and  served  in  the  session  of  i86--(J8. 
In  187 1  he  was  reappointed  as  reporter  of  the 
Supreme  Court  and  served  until  1871.  Mr. 
Tuttle's  industrious  life  ended  in  1888  at  Au- 
burn. His  name  is  indissolubly  connected 
with  the  history  of  the  State.  He  was  a  man 
of  the  strictest  integrity  and  absolutely  fear- 


554 


History  of  the  Bench  and  Bar  of  California. 


less  in  the  defense  of  what  he  believed  to  be 
right. 

He  was  not  an  eloquent  talker,  but  was 
possessed  of  a  wonderful  reasoning  faculty. 
He  was  always  interesting  because  of  his 
earnestness  and  sincerity.  His  logic  was  of 
the  very  best.  He  was  a  student,  and  had  the 
faculty  of  communicating  to  others  the  re- 
sults of  his  researches.  He  was  particularly 
kind  and  encouraging  to  young  practitioners, 
and  there  are  many  able  lawyers  who  will 
always  have  a  kindly  remembrance  of  Chas. 
A.   Tuttle. 

The  legislative  journals  and  the  California 
reports  will  perpetuate  his  fame. 


JOHN   R.   SHARPSTEIN. 

John  R.  Sharpstein,  who  was  a  Justice  of 
the  Supreme  Court  from  its  organization,  un- 
der the  present  constitution,  January  5,  1880, 
until  his  death  at  the  end  of  1892,  was  born 
in  .-ichmond.  Ontario  county.  New  York,  May 
3,  1823.  The  family  removed,  when  he  was 
twelve  years  of  age,  to  Romeo,  Michigan, 
and  there  he  was  educated,  at  a  branch  of 
the  University  of  Michigan.  He  was  admitted 
to  the  bar  of  the  Supreme  Court  of  that  state 
in  the  year  1847.  About  that  time,  and  at 
Romeo,  he  was  married  to  Miss  Kate  Crit- 
tenden. Shortly  afterwards  he  removed  to 
Wisconsin,  and  in  1850  was  elected  district  at- 
torney of  Kenosha  county,  and  served  one 
year.  In  1851  he  was  elected  a  member  of  the 
state  senate.  He  resigned  his  seat  in  that  body 
to  accept  the  position  of  United  States  attor- 
ney for  the  district  of  Wisconsin,  tendered 
him  by  President  Pierce  in  1853.  This  office 
he  held  to  the  close  of  President  Pierce's  ad- 
ministration, and  in  1857  became  postmaster  of 
Wilwaukee  by  appointment  of  President  Buch- 
anan. 

In  i860  he  was  a  delegate  to  the  National 
Democratic  convention  at  Charleston,  S.  C, 
where  he  supported  Stephen  A.  Douglas  for 
the  Presidential  nomination.  Thereafter,  im- 
til  his  party  became  reunited,  he  acted  with 
the  Douglas  wing. 

Leaving  the  office  of  postmaster  after  a  four 
years'  term,  he  became  a  part  owner  of  the 
Milwaukee  Daily  Ncivs,  and  edited  the  paper. 
It  was  the  leading  Democratic  journal  of  Wis- 
consin. In  1862  he  retired  from  journalism, 
and  in  that  year  was  elected  to  the  assembly. 
At  the  close  of  the  legislative  session,  in  1863, 
he  resumed  the  practice  of  law  at  Milwaukee, 
in  partnership  with  H.  L.  Palmer,  a  lawyer  of 


distinction,  who  afterwards,  in  1868,  was  tem- 
porary chairman  of  the  national  convention 
that  nominated  Horatio  Seymour  for  Presi- 
dent. 

Judge  Sharpstein  left  Wisconsin,  where  he 
was  so  well  estal)lished,  because  of  the  sevcrit}' 
of  the  winter  weather.  He  came  to  California 
in  1864,  locating  in  San  Francisco.  On  the 
eve  of  his  removal,  the  Bar  Association  of 
Milwaukee  unanimously  passed  resolutions 
commending  him  to  the  bar  and  community  to 
which  he  was  going,  and  testifying  to  his 
"ability,  moral  worth,  and  gentlemanly  bear- 
ing." 

Resolutions  of  like  tenor  were  also  adopted 
at  a  citizens"  meeting,  earnestly  bespeaking 
from  the  shores  of  Lake  Michigan  a  cordial 
reception  of  a  true-hearted  gentleman  in  the 
capital  of  the  Pacific  Ocean. 

In  San  Francisco,  Judge  Sharpstein  prac- 
ticed law  in  partnership,  successively,  with 
John  H.  Smythe.  Horace  M.  Hastings  and 
Charles  E.  Travers. 

In  January,  1874,  he  was  appointed  by  Gov- 
ernor Newton  Booth  to  fill  the  vacancy  on  the 
bench  of  the  Twelfth  District  Court,  as  suc- 
cessor of  Hon.  E.  W.  McKinstry,  who  had 
been  elected  Superior  Judge.  He  served  two 
years,  and  was  nominated  for  the  same  office, 
but,  with  his  party,  was  defeated  at  the  polls. 
In  1879,  at  the  first  election  under  the  present' 
constitution,  he  was  chosen,  as  a  Democrat, 
one  of  the  associate  justices  of  the  Supreme 
Court.  In  casting  lot,  as  the  constitution  pro- 
vided, for  the  several  terms,  he  drew  a  term  of 
three  years.  He  was  again  nominated  by  his 
party  in  June.  1882,  and  was  elected  for  a 
full  term  of  twelve  years.  He  died  in  his 
high  office,  on  December  27,  1892.  On  the 
opening  of  the  Supreme  Court,  January  23, 
1893,  memorial  resolutions  of  the  San  Fran- 
cisco Bar  As.sociation  were  presented  and  read 
by  Thomas  I.  Bergin.  one  of  the  bar  leaders 
of  the  State  for  a  long  period.  Therein  the  la- 
mented jurist  was  well  pictured  as  "of  com- 
manding stature  and  imposing  presence.  His 
features  were  regular,  his  eyes  blue,  and  fore- 
head large  and  expansive.  His  expression 
was  mild  and  pensive,  his  manners  simple,  cor- 
dial and  unaffected,  his  voice  pleasant,  his 
conversation  agreeable.  His  long  and  varied 
experience  in  the  many  paths  that  he  had  trod 
through  life  had  brought  him  in  contact  with 
all  kinds  of  men.  and  from  all  parts,  not 
only  of  our  own  country,  but  of  the  world." 
Chief  Justice  Beatty  responded  feelingly,  and 


History  of  the  Bench  and  Bar  of  California. 


555 


ordered  that  tlic  tribute  of  the  bar  be  spread 
at  length  upon  the  minutes  of  the  court. 

Judge  Sharpstein's  widow  and  children  are 
living  in  San  Francisco,  where  one  of  his  sons, 
Mr.  W.  C.  Sharpstcin,  is  a  nieinber  of  the 
bar. 


SIDNEY  V.  SMITH. 


Sidney  V.  Smith  was  in  the  full  tide  of 
prosperity  at  the  San  Francisco  bar  for  over 
thirty  years.  He  was  a  "Philadelphia  law- 
yer," born  and  reared,  as  well  as  fitted  for  the 
bar,  in  that  city.  Coming  to  San  Francisco 
in  1852,  he  was  associated  for  a  few  years  with 
Hall  McAllister,  Jonathan  Edwards  and  Julius 
K.  Rose,  the  firm  name  being  McAllister,  Ed- 
wards &  Rose.  He  afterwards  practiced  alone, 
until  1870,  when  his  son  became  his  partner. 
Thereafter  to  the  end  of  his  life  the  firm  was 
"Sidney   V.    Smith   &   Son." 

Mr.  Smith  was  of  quiet  temperament,  studi- 
ous and  scholarly,  of  fine  legal  attainments 
and  literary  taste,  and,  as  we  took  occasion 
to  say  of  him  when  he  passed  away,  although 
wedded  to  a  jealous  profession  of  which  he 
was  very  fond,  he  inclined  to  those  avenues 
thereof  that  enabled  him  to  keep  "the  noiseless 
tenor  of  his  way,"  "far  from  the  madding 
crowd's  ignoble  strife."  His  clients  were  heavy 
business  men,  bankers,  like  the  Security  Sav- 
ings Bank  and  the  Borels.  In  the  celebrated 
Black  will  case,  which  was  tried  four  times, 
he  was  counsel  for  the  widow  and  execu- 
tors. 

Like  C.  Temple  Emmet,  Mr.  Smith's  bear- 
ing was  conspicuously  English,  and  his  i)er- 
sonal  appearance  and  the  green  silk  bag  in 
which  he  carried  his  papers  to  court,  made  him 
an  Englishman  to  the  casual  observer.  But 
such  was  the  style  of  the  old  Philadelphia 
bar. 

Mr.  Smith's  irreproachable  career  ended  at 
his  home  in  San  Rafael,  on  September  25, 
1885,  when  he  was  sixty-seven  years  old.  He 
had  been  in  poor  health  a  year  or  so,  and  had 
recently  returned  from  a  visit  to  his  native 
city.  His  son,  who  bears  his  full  name,  and 
who  was  his  partner  for  fifteen  years,  has  long 
conuuanded  a  larger  praelici.-  tliaii  the  fatluT 
e\'er  did,  and  umi-e  divtTsitied.  lie  was  ad- 
mitted to  practice  in  \^(f/.  and  was  (|uite  young 
at  the  bar  when  we  heard  him  ni.ake  a  very 
lucid  argmnent  l)efore  the  .Su])renie  C'ourl.  Tlie 
Chief  Justice  and  one  of  his  associates,  upon 
leaving  their  seats,  passed  through  the  library, 
which  we  had  just  entered,  and  were  heard 
exchanging  words  of  compliment  to  the  young 


lawyer's  ettori.  Mr.  Smith  possesses  extra- 
ordinary quickness  of  apprehension,  and,  to 
use  an  expression  of  Macaulay,  "the  most  sure- 
footed judgment."  His  success  has  been  com- 
mensm-ate  with  his  profound  knowledge  of 
the  law.  and  his  brilliant  powers  of  mind 
He  ,s  a  man  of  family,  having  married  in  Oc- 
tober, 1884.  the  accomplished  widow  of  J  R 
Pnngle.  the  attorney,  daughter  of  Samuel  F 
Lutterworth,  the  capitalist,  who  died  in  1875. 

NATHANIEL  HOLLAND. 

Nathaniel  Holland  was  a  pioneer  of  June 
8.  1849.  He  was  president  of  the  board  of 
assistant  aldermen  December,  1851,  to  No- 
vember, 1852;  school  director,  1872-73;  a  mem- 
ber of  the  assembly,  1856;  president  of  the 
Pioneers.  1883-84,  and  United  States  chief 
supervisor  of  elections  from  1880  to  1802 
He  died  July  31,  1894,  aged  S2  years.  He  was 
a   native  of  Pennsylvania. 

Mr.  Holland  and  the  beloved  Judge  Edward 
Norton,  of  the  old  Twelfth  District  Court, 
bachelors  01  about  the  same  age.  had  the  habit 
for  years  of  taking  extended  walks  every 
Sunday  afternoon.  They  would  set  forth  from 
Holland's  office,  and  return  after  a  three  hours' 
stroll,  having  walked  side  by  side  the  whole 
way,  without  the  exchanee  of  a  single  word. 


E.   D.   WHEELER. 

Looking  back  over  the  long  line  of  argo- 
nauts we  see  few  names  standing  out  more 
attractively  than  that  of  E.  D.  Wheeler,  in 
law.   politics  and   iniblic   life. 

This  California  pioneer  w;is  horn  on  the  8th 
of  Jamiary.  1828,  in  Roxbuiy.  Connecticut.  He 
was  one  of  ten  children.  His  father  was  of 
Welsh,  his  mother  of  English  descent.  His 
boyhood  was  passed  in  Cayuga  county.  N.  Y. 
He  mastered  the  branches  of  learning  there 
taught  in  the  common  schools,  and  at  fifteen 
entered  the  academy  at  Jordan,  Onondaga 
county,  where  he  pursued  his  studies  for  two 
years,  lie  intended  to  take  a  collegiate  course, 
but.  just  at  a  time  when  the  avenues  of  learn- 
ing wire  bro.idening  and  widening,  his  family 
niovi'd  to  the  then  far  west  and  settled  in 
Uock  county,  Wisconsin.  Here  the  rough  life 
of  the  frontier  and  the  absence  of  advanced 
schoools  closed  his  career  so  far  as  education 
in  .inv  inslilution  of  learning  was  concerned, 
lie  wiut  to  work  on  the  farm,  virgin  soil  of 
a  new  home.  About  this  lime  his  father  was 
killed  by  an  accident,  leaving  a  widow  and  nine 


556 


History  of  the  Bench  and  Bar  of  California. 


children.  E.  D.  Wheeler,  being  next  to  the 
eldest  child,  had  the  burdens  of  manhood 
thrown  upon  him  before  he  reached  man's  es- 
tate. He  turned  away  from  thoughts  of  worldly 
ambition,  worked  steadily  in  the  interest  of  the 
large  family,  and  when  the  cold  winter  closed 
in.  he  taught  school.  When  only  nineteen  years 
old  he  was  employed  in  all  the  justice's  court 
cases  in  the  township.  He  had  gathered  no 
legal  knowledge,  but  possessed  marked  ability 
as  a  debater,  and  displayed  it  in  the  societies 
of  the  young,  then  much  in  vogue. 

in  the  spring  of  1847  he  went  to  Belle- 
ville, Illinois,  and  passed  a  period  of  two 
years  that  gave  direction  to  his  future.  There 
was  an  able  bar  at  Belleville.  Lyman  Trum- 
bull being  at  the  head,  and  next  to  him.  per- 
haps, was  Don  Morrison,  a  brother  to  our 
late  chief  justice.  Mr.  Wheeler  studied  law 
in  Don  Morrison's  office.  He  laid  his  books 
aside  when  the  California  gold  fever  reached 
his  town,  and  came  across  the  plains  in  a 
small  train,  reaching  Placerville  on  August 
26.  1849.  He  went  to  Sacramento,  and  fol- 
lowed merchandising  and  steamboat  freighting 
for  a  few  months.  He  settled  in  Marysville. 
then  known  as  Nye's  Ranch,  in  February, 
1850.  Then  for  seven  years,  from  January, 
1853.  a  very  long  period  in  the  early  history 
of  this  State,  he  enjoyed  a  great  reputation  as 
a  lawyer.  First,  after  a  two  months'  residence, 
he  ran  for  the  office  of  county  clerk,  and  was 
elected.  He  held  the  office  for  two  years, 
doing  most  of  the  work,  and  reading  law  in 
spare  hours  and  at  night.  He  passed  the  Su- 
preme Court  examination  with  high  honor,  and 
was  admitted  to  the  bar  on  April  15.  1852. 
After  a  trip  to  the  States,  he  opened  his  law 
office  in  Marysville  in  January.  1853. 

He  amassed  a  comfortable  fortinu'  in  a  few 
years.  For  a  time  he  was  a  member  of  the 
Marysville  city  council,  and  was  once  public 
administrator,  which  latter  office  he  resigned. 
He   was    elected    State   senator   in    1858,   as   a 


Douglas  Democrat.  When  his  term  ended,  in 
i860,  he  removed  to  San  Francisco.  His  first 
partnership  there  was  w-ith  Hon.  O.  C.  Pratt. 
This  soon  ended,  and  he  followed  the  practice 
alone  for  some  twelve  years,  interrupted  by  a 
six  months'  stay,  in  1869,  at  White  Pine,  Ne- 
vada. In  1870-71  he  was  in  law  practice  in 
San  Francisco,  in  partnership  with  John  A. 
McQuaid    (Wheeler   &    McQuaid). 

The  Nineteenth  Judicial  District  Court  was 
created  in  1872,  and  on  March  8,  of  that  year 
Governor  Newton  Booth  appointed  Mr. 
Wheeler  Judge  of  the  new  tribunal.  Judge 
WHieeler's  court  was  crowded  with  business  al- 
most from  its  organization,  and  before  him 
were  tried  some  of  the  most  important  cases 
in  the  history  o  fthe  State.  In  the  fall  of 
1873  the  Judge  was  nominated  for  the  bench 
he  then  held,  by  the  Republican  and  People's 
parties,  his  Democratic  opponent  being  Hon. 
William  P.  Daingerfield.  He  was  elected  for 
a  full  term  of  six  years.  His  full  term  just 
ended  as  his  court  and  all  others  in  the  State, 
passed  out  of  existence  w-ith  the  old  consti- 
tution. In  1879,  which  was  the  closing  year 
of  his  court,  he  was  one  of  the  Republican 
candidates  for  Supreme  Judge.  His  whole 
judicial  ticket,  however,  was  defeated  with  one 
exception. 

After  leaving  the  bench.  Judge  Wheeler 
practiced  law  in  San  Francisco  for  fifteen 
years.  In  1881-82  he  was  in  partnership  with 
W.  W.  Hoover  (Wheeler  &  Hoover),  and  in 
1892-93  with  James  A.  Devoto  (Wheeler  & 
Devoto). 

He  married,  at  Marysville.  November  14, 
1854,  Miss  Julia  A.  Rowe,  daughter  of  General 
George  Rowe,  a  prominent  lawyer  of  that 
place.  He  had  two  sons,  one  of  w'hom  is  at 
tlie  liar  at  Eureka:  the  other  left  the  law  for 
the    insurance   business. 

The  Judge  died  at  San  Francisco  in  Jan- 
uary, 1895. 

—THE  EDITOR. 


MASTERS  WHO 
FOLLOWED  THE 
^^  PIONEERS  =/«  .J* 


i&;i&Gjbdi3i^C4ciei]3tI|^(&t 


HISTORY  of  the 
BENCH  and  BAR 
of  CALIFORNIA 


ep  oj^  Lj,  frp  rjn  «5p  c,^.  ep  , 


MASTERS  WHO  FOLLOWED  the 
PIONEERS 


JOSEPH    G.    BALDWIN. 

Joseph  G.  Baldwin  was  born  at  Staunton, 
Augusta  county,  Virginia,  January  22.  1815. 
His  precocity  was  extraordinary.  When 
twelve  years  of  age  he  was  a  deputy  clerk  of 
the  District  Court  of  his  county.  Here  he  re- 
ceived lessons  in  the  clerical  details  of  law 
practice,  which  were  of  service  to  him  in  after 
life.  At  seventeen  years  of  age  he  took  edi- 
torial charge  of  a  newspaper  in  Buchanan, 
Rockbridge  county.  Two  years  later  he  re- 
moved to  Alabama,  "impelled,"  as  he  tells  us 
in  his  "Flush  Times,"  "by  the  gentle  momen- 
tum of  a  lady's  slipper."  He  does  not,  how- 
ever, disclose  who  was  the  fair  girl  who  dis- 
appointed him.  It  was,  we  have  it  from  an 
authentic  source,  a  Miss  Menzies,  who  after- 
wards married  a  son  of  Chapman  Johnson. 
This  Chapman  Johnson  was  the  leader  of  the 
Virginia  bar,  and  possibly  the  greatest  law- 
yer of  his  day  and  generation  in  the  civilized 
world,  Chief  Justice  Marshall  excepted. 

While  deputy  clerk  and  editor  young  Bald- 
win had  improved  his  leisure  hours  bj'  read- 
ing law,  for  which  he  evinced  a  fondness  at 
a  very  early  age ;  and,  having  law  practice 
in  immediate  view,  he  went  to  the  town  of  De 
Kali),  Alabama,  where  he  continued  liis  law 
studies  and  awaited  his  opportunity  for  admis- 
sion to  the  bar.  At  Dc  Kalb  he  met  S,  S. 
Prentiss.  Between  the  two  a  very  cordial 
friendshii)  sprang  up,  which  proved  enduring. 
Baldwin  had  met  one  great  soul  congenial  to 
his  own.  Some  twenty  years  later,  on  the 
shores  of  the  Pacific,  he  came  in  contact  with 
another  kindred  genius — John  B.  Felt  on — aft- 
erwards  his    son-in-law.      Upon    attaining   his 


majority.  Baldwin  removed  again — this  time  to 
Sumpter  county,  Alabama,  where  he  was  ad- 
mitted to  the  bar,  and  where  he  entered  upon 
his  professional  career  with  rare  pluck  and 
enthusiasm.  He  represented  that  county  in  the 
State  legislature.  In  politics  he  was  a  Whig. 
Henry  Clay  was  to  him,  as  he  declared  in  his 
"Party  Leaders,"  "the  greatest  orator,  and, 
except  Washington,  the  wisest  statesman  and 
most  useful  citizen  this  country  ever  called 
into  her  service." 

In  1844  Baldwin  was  nominated  by  the 
Whigs  as  one  of  their  Presidential  electors. 
He  "stumped"  his  section  of  the  state  in  that 
campaign.  In  1849  his  party  nominated  him 
for  congress.  He  was  defeated  by  250  votes 
by  Colonel  S.  W.  Inge,  who,  two  years  later, 
and  in  advance  of  Baldwin,  removed  to  San 
Francisco. 

In  Alabama  Baldwin  won  a  great  reputation. 
He  was  known  as  a  great  jury  lawyer.  (In 
California  he  did  not  often  appear  before  ju- 
ries.) He  had  a  large  practice.  The  time 
which  he  could  spare  from  his  professional 
duties  he  devoted  to  literature.  The  i)ro(litct 
was  his  celebrated  "Flush  Times,"  a  volume 
which  has  been  the  delight  of  two  generations. 
"It  was,"  said  his  friend  Howard,  of  Los  An- 
geles, "the  first  literary  essay  of  a  mind  crowded 
with  thought  and  replete  with  exquisite  im- 
agery— the  primitive  yield  of  a  rich  virgin  soil 
— the  gleeful  bubbling  of  a  full,  and.  till  then, 
undisturbed  fotmtain.  *  *  *  Ajiart  from 
the  emanations  of  convulsing  wit  that  scintil- 
late and  sparkle  along  eacii  page,  this  work 
has  a  higher  charm  of  pure  classic  diction.  It 
contains  no  violation  of  the  most  rigid  literary 
taste  or  the  most  elevated  chastity  of  thought, 


560 


History  of  the  Bench  and  Bar  of  California. 


and  it  almost  groans  under  its  affluence  of  cun- 
ning fantasies  of  language,  and  merry  con- 
ceits and  adroit  suddenness  of  situations." 

While  in  Alabama,  Baldwin  also  gave  to 
the  world  his  "Party  Leaders,"  being  "Sketches 
of  Thomas  Jefferson,  Alexander  Hamilton, 
Andrew  Jackson.  Henry  Clay,  and  John  Ran- 
dolph of  Roanoke.  Including  Notices  of  Many 
Other    Distinguished    American    Statesmen." 

Judge  Baldwin  married  in  Alabama  a  Miss 
White,  by  whom  he  had  si.x  children — four 
boys  and  two  girls.  He  removed  with  his 
family  to  San  Francisco  in  1854.  Arriving 
at  a  comparatively  early  day,  bringing  an  en- 
viable reputation  as  a  lawyer  and  man  of  let- 
ters, and  finding  here  a  considerable  number 
of  active  professional  and  business  men  from 
the  states  of  his  nativity  and  adoption,  he 
quickly  secured  a  good  practice.  He  always 
had  a  predilection  for  politics.  The  old  Whig 
party  having  disappeared,  the  Northern  Whigs 
becoming  Republicans  and  the  Southern  Whigs 
Democrats.  Baldwin  was  no  exception  to  the 
rule.  He  acted  with  the  Democratic  party 
from  the  time  he  arrived  in  California  until 
his  death.  In  September.  1857,  Hugh  C.  Mur- 
ray, Chief  Justice  of  the  California  Supreme 
Court,  died.  Peter  H.  Burnett,  appointed  by 
Governor  Weller,  acted  until  the  next  elec- 
tion, when  Joseph  G.  Baldwin,  who  had  re- 
ceived the  Democratic  nomination,  was  chosen 
by  the  people. 

Judge  Baldwin  was  on  the  bench  of  the  Cal- 
ifornia Supreme  Court  from  October  2,  1858, 
to  January  i,  1862.  On  leaving  the  bench  he 
resumed  law  practice  in  San  Francisco.  Two 
years  later  he  visited  the  East — the  war  then 
raging — and  endeavored  to  procure  a  pass  to 
go  through  the  Union  lines  to  see  his  aged 
father.  He  failed  in  this,  and  returned  to  this 
State,  without  having  seen  the  old  gentleman, 
from  whom  he  had  parted  nearly  thirty  years 
previously.  After  his  return  from  the  East, 
Judge  Baldwin  passed  his  time  in  San  Fran- 
cisco and  X'irginia  City,  following  his  pro- 
fession in  both  places.  These  were  "flush 
times."  and.  like  the  most  eminent  lawyers 
who  were  here  at  that  date,  he  reaped  a  golden 
harvest.  His  oldest  son.  Alexander  W.  Bald- 
win, was  then  a  leading  lawyer  of  Virginia 
City.  The  precocity  inherited  by  the  latter, 
and  his  extraordinary  success  at  the  bar,  were 
fittingly  mentioned  by  Judge  E.  W.  McKin- 
stry,  from  the  bench.  November  17,  1869.  A. 
W.  Baldwin  was  killed  in  that  month  by  a 
railroad  accident  in  Alameda  county.  Califor- 


nia. Although  but  twenty-eight  years  of  age. 
he  was  then  judge  of  the  United  States  Circuit 
Court   for  the  state  of  Nevada. 

Judge  Baldwin  had  three  other  sons,  all  of 
whom  were  unusually  gifted,  exhibiting  at  an 
early  age  quickness  and  originality,  and  re- 
markable facility  with  the  pen.  All  died  in 
the  dawn  of  manhood.  A  strange  fatality 
seemed  to  wait  upon  the  family  for  some  years. 
Between  1873  and  1877  occurred  the  deaths 
of  the  elder  Baldwin,'  his  eldest  son.  Judge 
A.  W..  liis  three  other  sons,  Joseph  G.,  Jr.. 
John  W.,  and  Sidney,  and  his  lamented  son- 
in-law,  Jolm  B.  Felton. 

Judge  Baldwin's  distinguished  faculty  as  a 
lawyer  was  his  logical  power.  He  was  a 
strong  man  as  a  reasoner.  His  facility  of  il- 
lustration was  very  great.  In  this  his  perennial 
wit  and  humor  were  always  serving  him.  He 
was  masterly  in  reply.  Rarely  in  California, 
but  many  times  in  Alabama,  he  displayed  his 
powers  before  a  jury.  He  would  often  com- 
press a  whole  case  in  an  epigram,  or  would 
throw  off  a  sentence  that  would  illuminate 
a  principle.  Rapid  in  thought,  clear  in  vision, 
he  comprehended  a  case  at  first  glance.  Un- 
derstanding it,  he  made  others  understand  it 
by  his  illustration.  And  who  could  step  irto 
a  law  library  and  find  so  many  authorities  on 
a  given  point  and  digest  them  and  apply  them 
so   quickly   as   he? 

The  great  defect  in  his  oratory  was  his 
voice.  It  was  not  agreeable,  and  was  not  un- 
der control.  He  was  S.  S.  Prentiss,  without 
that  marvelous  voice.  His  sentences  were 
rounded,  pointed,  polished,  smooth-flowing, 
his  wit  more  than  abundant,  his  memory  ex- 
cellent, his  information  wide.  In  conversation 
he  was  irresistible — but  on  the  platform  he 
could  not  talk  like  Prentiss  or  Baker.  Who 
could?  Given  a  melliflous  voice,  Baldwin 
would  have  made  a  great  popular  forensic  ora- 
tor. He  had  all  the  qualities  but  one.  Before 
a  court,  no  crowd  present,  speaking  to  legal 
questions,  his  manner  was  good  and  his  voice 
was  not  noticed.  With  a  voice  that  could 
thrill,  he  would  have  been  a  man  of  the  masses 
— lacking  it,  his  empire  was  chancery,  and 
his  unconquerable  weapon  was  the  pen. 

Baldwin's  fame  as  a  jurist  will  rest  chiefly 
upon  his  opinion  in  Hart  vs.  Burnett  (15  Cal. 
530). 

Baldwin's  opinions  cover  several  volumes 
of  the  California  Reports.  Sometimes  over- 
ruling prior  decisions,  they  remain  themselves 
unquestionable.      They    partake    much    of    the 


History  of  the  Bench  and  Bar  of  California. 


5G1 


qiality  of  his  stj-le  as  a  writer,  and  are  coii- 
setuently  sprightly  and  vigorous.  His  unfail- 
ing fountain  of  humor  bubbled  over  even  on 
the  bench.  Off  the  bench  it  was  character- 
istic and  universal.  His  jests,  anecdotes  and 
stores  still  oass  current  among  the  bar,  re- 
taining the  full  force  of  their  original  interest. 

The  annals  of  the  law  have  developed  a 
great  deal  calculated  to  excite  merriment,  and 
Judge  Baldwin,  although  he  was  a  profound 
lawyer,  yet  did  his  full  share  towards  invest- 
ing this  stern  science  with  the  light  mantle  of 
mirh. 

Baldwin  was  once  badly  disturbed  by  Tod 
Roliinson,  father  of  C.  P.  Robinson,  and  once 
District  Judge  at  Sacrainento,  and,  later,  Su- 
preme Court  reporter.  Robinson,  when  he 
w:)uld  warm  up.  was  a  fine  talker.  This  oc- 
casion was  also  in  the  Supreme  Court,  when 
Bildwin  was  on  the  bench.  A  certain  con- 
stible  given  a  writ  of  execution  against  the 
pioperty  of  a  defendant  in  a  suit,  levied  on  and 
sold  property  belonging  to  a  man  who  was 
no  oarty  to  the  suit.  The  latter  sued  for 
camages  and  instead  of  suing  the  constable 
ilone,  made  the  sureties  on  his  official  bond 
co-defendants  also.  He  recovered  damages  in 
;he  District  Court  against  all  the  defendants, 
and  the  latter  appealed.  Robinson  appeared 
in  the  Supreme  Court  to  uphold  the  judg- 
ment obtained  in  the  District  Court.  Baldwin 
interrupted  his  argument  to  inquire  if  the 
counsel  had  ever  considered  the  distinction  be- 
tween the  acts  done  virtutc  officii  and  acts 
done  colore  officii.  "It  seems  to  me,"  he  ob- 
served, "there  would  be  as  much  propriety  in 
joining  the  constable's  bondsmen  with  him,  in 
a  suit  against  him  for  damages  for  assault ; 
as  much  propriety  as  joining  them  in  this  ac- 
tion." 

With  great  dcliljcratiun  Roliinson  responded: 
"Your  honor  has  announced  a  principle  that 
I  have  been  contending  for  all  my  life."  At 
this  there  was  eager  attention  to  hear  more. 
Robinson  proceeded  on  the  correctness  of  the 
position  stated  by  Baldwin,  arguing  against 
himself,  and  then,  suddenly,  and  with  impres- 
siveness  in  his  voice  and  gesture,  he  said: 
"But.  your  honor,  there  is  just  one  trouble  w'c 
have — there  are  just  400  adjudicated  cases 
against  us.  and  not  one  in  (Hu^  favor." 

He  argued  for  some  time  further,  during 
which  he  gave  the  quoted  words  frequent  itera- 
tion. At  last,  Baldwin,  interrupting,  said: 
"Well,  now,  Judge  Robinson,  if  you  will  just 
repeat  that  400  tiines,  we'll  be  even  on  the  au- 
thorities." 


Judge  Baldwin  was  kind  in  his  wit — remark- 
ably so — but  he  could  resent  insolence  in  fit- 
ting terms.  He  was  a  most  amiable  man,  but 
nobody  was  rude  to  him  twice. 

The  Hon.  Edward  Stanly  married  his  sis- 
ter. When  Stanly  was  running  for  Governor, 
he  made  the  usual  stumping  tour,  and  one  of 
the  burdens  of  his  speech  was  that  he  never 
sought  office,  but  that  he  had  always  been 
importimed  to  take  office,  much  to  his  annoy- 
ance. In  an  opposition  paper  Baldwin  drew  a 
graphic  picture  of  Stanly  being  chased  out  of 
three  stales  and  several  territories  by  people 
who  wanted  to  run  him  for  office.  Baldwin 
signed  this  article  "Jack  Cade." 

For  several  years  before  his  death  he  lived 
with  his  son-in-law  Felton,  at  the  latter's  resi- 
dence in  Oakland.  Unlike  Felton,  Baldwin 
cared  nothing  for  the  pleasures  of  the  table, 
except  the  post-prandial  talk.  He  hardly 
knew  what  plates  were  placed  before  him.  But 
when  the  cloth  was  cleared  he  was  all  youth 
and  jollity.  It  was  a  genuine  treat  to  sit  at 
the  table  with  Baldwin  and  Felton.  Either 
one  was  perennial  in  wit  and  in  that  lore  which 
entertains  and  charms. 

Baldwin  died  at  the  age  of  forty-nine  years. 
He  had  been  for  some  time  engaged  in  gath- 
ering materials  for  a  history  of  California, 
but  had  not  progressed  far  with  his  manu- 
script. He  was  unusually  lively  at  the  dinner 
table  the  day  before  his  death.  That  evening 
in  the  midst  of  animated  conversation,  he 
suddenly  put  l)i)lh  hands  to  his  cheeks  and 
said:  "My  jaws  pain  me — they  feel  stiff." 
He  had  recently  undergone  a  surgical  opera- 
tion and  thought  he  h^id  passed  it  trium- 
pliantly.  But  he  had  the  lockjaw.  The  next 
(lay   he  was   silent   forever. 


JOHN    B.    FELTON. 


Tliis  brilliant  man  was  very  generallv  be- 
Io\ed.  Lively,  genial,  witty,  generous  to  ex- 
cess, his  conversation  "llavored  with  the  es- 
sence of  all  good  literatures,"  showing  in  every 
word  and  movement  the  well-bred  gentleman, 
lie  was  a  most  delightful  companion,  and  those 
who  enjoyed  his  friendship  speak  of  him  wilii 
tile  utmost  tenderness  and  affection. 

Jolin  B.  I-'eiton  was  born  in  Massachusetts 
in  1827,  and  died  at  iiis  home  in  Oakland.  Cal., 
May  2.  1877.  Mis  father  was  superintendent 
of  an  almshouse  in  Cambridge,  and  lived  and 
died  in  very  poor  circumstances,  leaving  three 
sons,  all  of  whom  became  men  of  mark.     One 


562 


History  of  the  Bench  and  Bar  of  California. 


was  president  of  a  railroad  company  in  Penn- 
sylvania. Another  was  the  great  scholar,  lec- 
turer and  writer,  C.  C.  Felton.  The  father 
managed  to  get  this  son  into  Harvard,  and 
lived  to  see  him  attain  great  literary  fame. 
C.  C.  Felton  was  connected  with  Harvard 
from  the  time  she  received  him  as  a  scholar 
until  his  death.  He  became  successively'  a 
Latin  tutor,  a  Greek  tutor,  professor  of  Greek, 
Eliot  professor  of  Greek  literature,  and  presi- 
dent of  the  college.  Dearly  he  loved  "the 
bright  clime  of  battle  and  song,"  and  was  said 
to  dwell  in  "the  atmosphere  of  ancient 
thought."  Some  of  the  most  instructive  and 
entertaining  pages  of  the  New  American  Cyclo- 
pedia are  from  his  pen — the  articles  on  Agas- 
siz,  Athens,  Attica,  Demosthenes.  Euripides, 
Greece,  and  Homer. 

Professor  Felton  educated  his  brother,  John 
B.,  who  was  many  years  his  junior,  and  who, 
upon  graduating  from  Harvard  in  the  class 
of  1847,  obtained  through  the  professor's  in- 
fluence a  position  as  Greek  tutor.  He  had 
proved  himself  to  be  one  of  the  best  Greek 
scholars  of  his  time. 

While  at  his  law  studies  John  B.  Felton  was 
sent  by  his  brother,  the  professor,  to  Paris, 
where  he  remained  a  year,  studying  the  civil 
code,  indulging  in  the  amusements  of  the  gay 
capital,  and  making  himself  thoroughly  ac- 
quainted with  the  French  language,  which  he 
ever  after  spoke  with  great  ease  and  correct- 
ness. He  also  obtained  a  good  knowledge  of 
Spanish,  having  made  up  his  mind  to  settle 
in  San  Francisco,  and  knowing  this  tongue 
would  be  of  service  professionally,  as  it  proved 
to  be  more  than  onCe — notably  in  the  great 
Limantour  case. 

It  had  been  agreed  at  college  between  Felton 
and  Mr.  E.  J.  Pringle  that  they  would  com- 
mence the  practice  of  law  in  partnership,  in 
San  Francisco.  The  two  young  men  were  in 
college  together  two  years,  Mr.  Pringle  being 
the  elder  and  graduating  two  years  before  his 
friend.  This  was  an  alliance  between  Massa- 
chusetls  and  South  Carolina.  Mr.  Pringle  ar- 
rived at  San  Francisco  by  the  Nicaragua  route, 
in  December.  1S53.  Felton  sailed  around  the 
Horn,  in  order  that  he  might  thoroughly  ac- 
quaint himself  with  the  structure  of  seagoing 
vessels  and  with  nautical  terms,  hoping  to 
profit  by  it  in  admiralty  practice.  He  arrived 
there  in  the  spring  of  1854,  and  immediately 
formed  a  partnership  with  Mr.  Pringle  and 
commenced  law  practice.  Both  gentlemen  had 
been  admitted  to  the  bar  in  the  East.     Felton 


came  to  San  Francisco  a  young  man,  but  thor- 
oughly equipped  as  a  lawyer.  He  had  latge 
resources  of  mind,  great  breadth  of  comire- 
hension,  wonderful  inventive  power  as  applied 
to  principles,  and  astonishing  quickness  .tnd 
exactness  of  observation.  The  faculty  was 
his  of  finding  out  what  the  law  ought  to  be, 
and  what,  therefore,  it  is,  unless  fettered  by 
technicalities,  and  the  adroitness  and  subtfety 
to  use  technicalities  when  they  suited  his  pur- 
pose ;  but  he  preferred  broad,  catholic  views 
upon  all  questions  of  right  and  wrong  between 
man   and  man. 

It  would  be   tedious   to  go  over   the   list  of 
celebrated  causes  with  which  Mr.  Felton  vas 
connected.      Two    of    the    most    important  of 
them  were  the  mortgage-tax  case  and  the  locil 
option  case.    On  the  first  the  court,  in  a  mod«l 
opinion  by  Judge  McKinstry,  took  Mr.  Feltons 
view — that    to    tax    a    mortgage   and    also    the 
mortgaged    property    as    though    it    were    net 
incumbered,   is   double   taxation,   and   in   sonc 
cases  may  be  manifold  taxation.     In  the  local 
option  case  the  question  was  whether  the  law 
was    constitutional,    which    provided    that    the 
people   of   any   city,    town    or   township   might 
by     vote     decide     whether     spirituous     liquors 
should   be   sold   in   such   city,   town,   or   town- 
ship.    In   the   Supreme   Court,   S.   W.   Sander- 
son and  Lloyd  Baldwin  appeared  for  the  tem- 
perance men,  and  John  B.  Felton  and  W.  H. 
Patterson   for  the  other  side.     None  of  these 
survive.      It    was    another   great    triumph    for 
Felton.     He   contended   that   the   law   was   in 
direct  opposition  to  the  natural  rights  of  man. 
The    constitution    of    California,    said    he,    de- 
clares   these    rights    to    be    inalienable.      The 
rights  of  property,  life,  liberty  and  the  pursuit 
of  happiness  precede  government,  and  the  only 
limitation  of  these  rights  is  the  rule  that  they 
shall  not  be  used  to  the  injury  of  others.     A 
man  has  the  right  of  using  or  abusing  his  own 
property,  providing  that  in  so  doing  he  does 
no  injury  to  another.     His  natural  rights  can 
only  be  bounded,   limited  or  restricted  by  the 
natural    rights   of   others.      The   acts   which   a 
man   can   be   prohibited   from   exercising   over 
himself  or  his  property  must  be  directly  and 
necessarily  injurious  to  others.     He  cannot  be 
prevented  from  using  or  abusing  his  own  prop- 
erty merely  because  other  individuals,  or  the 
community,  are  indirectly  injured  thereby.  The 
right    to    use  wines,  beers,    liquors,    etc.,  is    a 
/natural  right  of  property.     It  can  only  be  lim- 
ited or  restricted  by  the  legislature,  and  then 
only  so  far  as  the  exercise  of  that  right  inter- 


History  of  the  Bench  and  Bar  of  California. 


563 


feres  directly  with  the  rights  of  others.  If 
a  man  uses  these  articles  in  excess — to  his  own 
injury  only,  and  not  to  the  injury  of  others — 
he  is  exercising  the  right  of  abusing  his  own 
property,  and  though  blameworthy,  is  not 
within  the  prohibitory  power  of  the  law.  If 
through  such  excess,  he  becomes  dangerous 
to  the  lives  or  property  of  others,  he  then 
becomes  amenable  to  the  law.  But,  the  article, 
the  abuse  of  which  has  led  to  his  thus  becom- 
ing dangerous,  cannot  be  taken  away  from 
others,  who  are  capable  of  using  it  in  a  proper 
manner.  When  an  article  capable  of  proper 
and  legitimate  use  is  also  capable  of  being 
used  to  excess,  and  thus  produce  misery,  the 
simple  possibility  of  its  being  used  to  excess 
does  not  prevent  it  from  being  property.  The 
legislature  can  regulate  the  use  of  it,  but  can- 
not prohibit  the  use  of  it.  The  local  option 
law  prohibited  the  use  of  liquors.  It  was 
therefore   void. 

Felton  confined  himself  to  civil  practice. 
He  probably  took  in  larger  fees  than  any  other 
lawyer  in  the  State.  For  their  successful  effort 
to  break  the  Lick  deed  of  trust,  on  behalf  of 
Lick  himself,  he  and  Mr.  T.  H.  Hittell  re- 
ceived $100,000.  In  the  local  option  case  he 
and  Mr.  Patterson  received  the  same  amount. 
He  was  the  chosen  counsellor  of  Michael 
Reese,  and  many  other  citizens  who  had  great 
property  interests.  He  paid  little  attention 
to  politics,  but  on  one  occasion  had  aspiration 
for  the  United  States  Senate.  It  was  in  the 
campaign  which  resulted  in  the  election  of 
Newton  Booth,  as  the  exponent  of  a  new,  inde- 
pendent, short-lived  party.  The  Republicans 
had  settled  upon  Felton  for  Senator,  in  the 
event  of  their  success.  In  that  canvass  Fel- 
ton showed  great  power  on  the  stump.  He 
sometimes  spoke  for  three  hours  or  more  with- 
out notes,  and  was  most  happy  in  thought  and 
•diction.  He  had  a  memorable  controversy 
with  Governor  Booth  in  that  contest.  The 
letters  of  the  rivals  make  fine  reading.  Chaste, 
classic,  learned,  trenchant — it  would  be  diffi- 
cult to  surpass  them  in  these  respects. 

Felton  frequently  lectured  for  charitable 
causes.  He  was  a  great  friend  of  learning, 
and  responded  to  the  calls  of  schools  and  col- 
leges for  public  addresses.  He  was  regent 
of  the  State  University  from  its  foundation 
to  his  death.  In  October,  1867,  he  addressed 
the  graduating  class  at  the  commencement 
exercises  of  Toland  Medical  College.  He  de- 
livered the  oration  at  the  dedication  of  the 
San   Francisco  Mercantile  Library.     In  Octo- 


ber, 1868,  he  addressed  the  Grand  Lodge  of 
Masons.  These  and  many  other  of  his  ora- 
tions, besides  quite  a  number  of  political 
speeches,  were  fully  reported  and  have  been 
preserved  in  immortal  type.  Tliey  are  all 
alive  with  thought,  and  are  strikingly  graceful 
in    expression. 

He  had  the  most  expensive  habits  in  the 
way  of  eating  the  most  delicately  cooked  food 
that  could  be  procured,  and  drinking  freely  of 
the  rarest  wines.  When  dining  with  friends 
away  from  home  he  always  insisted  on  paying 
the  whole  bill — nobody  else  could  spend  a  cent 
— and,  as  a  little  mark  at  once  of  his  extrava- 
gance, good  nature  and  liberality,  he  always 
carried  a  pocketful  of  fine  cigars,  that  cost,  at 
wholesale  rates,  not  less  than  twenty-five  cents 
apiece,  which  he  distributed  indiscriminately. 
He  was  a  poor  judge  of  men,  and  seemed  to 
give  little  study  to  human  nature.  When  he 
was  a  candidate  for  the  United  States  Senate 
he  had  parlors  at  Whipple's  St.  George  Hotel, 
on  Clay  street,  which  were  open  to  all  men, 
without  distinction  of  politics,  creed,  race,  or 
color.  Jhc  loafers  and  bummers  thought  a 
golden  age  had  arrived.  They  made  him 
think  they  were  "making  his  fight,"  whereas, 
as  the  saying  is,  they  did  not  control  their 
own  votes.  Felton  sent  to  those  rooms,  liquors 
and   cigars   which   cost  $7000. 

A  tippling  friend  met  him  on  the  street  one 
day. 

"They  say,  Felton,  that  we  drink  too  much 
brandy  and  water." 

Felron — TTiey  ought  to  be  more  discriminat- 
ing. They  should  say  that  you  drink  too  much 
brandy  and  I  drink  too  much  water. 

Tippler — I  guess  we  do  drink  too  much.  Fel- 
ton. 

Felton — Who  authorized  you  to  use  the 
plural?  Is  it  because  you  drink  enough  for 
two? 

I'^elton  was  a  most  forcible  talker,  never 
tlovvery  or  verbose.  He  was  full  of  illustra- 
tion. Mil  adept  at  classic  allusion,  had  a  wide 
reach  of  information,  had  explored  a  vast 
domain  in  literature,  was  severe  in  logic, 
straightforward,  direct.  He  was  wonderfully 
(|uick  in  gr.isping  tlie  chief  points  of  a  case, 
and  ni  argunicnl  was  excited  and  vehement. 
home  along  on  Ironicndous  waves  of  enthus- 
iasm. 

With  his  peculiar  lemiH'rament,  it  can  hardly 
be  said  that  he  was  industrious.  Here  he 
contrasted  markedly  with  McAllister.  He  cer- 
tainly  was   not   fond   of   work,   but   he   never 


564 


History  of  the  Bench  and  Bar  of  California. 


tired  of  reading.  He  was  fitful  in  exertion. 
His  clients  would  sometimes  pursue  him  day 
after  day  for  weeks  at  a  time,  urging  him  to 
attend  to  their  business.  When  he  did  take 
hold  he  made  up  for  lost  time,  frequently 
burning  the  midnight  gas  in  his  office.  On 
such  occasions  he  used  stimulants  freely. 

His  bon  mots  were  marty.  He  said,  prob- 
ably, more  good  things  than  any  other  lawyer 
in  the  State.  Seeing  an  Irish  procession  on 
Montgomery  street,  he  called  a  friend's  atten- 
tion to  the  flag,  and  said :  "That  ought  to 
be  kept  over  the  Caller's  station  in  the  big 
board  of  brokers."  "Why?"  "Behold  the 
sham  rock  and  liar !" 

There  was  a  certain  lawyer  of  this  bar  who 
was  afflicted  with  cacoethes  loquendi.  He 
delighted  to  talk  to  the  dear  people  from  the 
platform,  and  never  let  pass  an  opportunity  to 
enlighten  them  (as  far  as  he  could)  upon 
any  subject — political,  religious,  moral,  his- 
toric, or  aesthetic.  Mr.  Felton  met  him  on 
the  street  one  day,  and  invited  him  to  join 
him  and  a  few  acquaintances  at  dinner  at  a 
certain  restaurant  that  evening.  The  "elo- 
(|ucnt"  speaker  said  he  had  to  address  the  peo- 
ple that  night  at  Piatt's  Hall,  on  the  question, 
"What  shall  we  do  with  our  millionaires?" 
It  was  a  theme  of  great  public  interest,  and 
he  hoped  to  see  Mr.  Felton  among  his  audi- 
tors. "If  you  will  excuse  me,  Mr.  Felton," 
he  added,  "I  had  rather  make  a  speech  than 
cat  the  finest  dinner  ever  cooked." 

"And  I,  fond  as  I  am  of  a  good  dinner,  had 
rather  starve  to  death  than  listen  to  you,"  was 
the  retort.  The  intensity  of  Felton's  repug- 
nance can  only  be  appreciated  by  those  who 
remember  how  really  fond  he  was  of  a  fine 
dinner. 

Judge  T.  W.  Frcclon.  Judge  Levi  Parsons, 
John  B.  Felton.  and  a  few  other  consentane- 
ous souls,  once  made  up  a  merry  mess  of 
bachelors  at  Mme.  Touchard's  private  board- 
ing-house. Felton's  winning  smile  when -he 
joined  his  table  companions,  his  exultant  mirth 
and  words  of  wit  and  wisdom,  gave  a  peculiar 
charm  to  his  presence,  and  made  the  dining 
hall  the  place  of  delightful  daily  reunion. 

It  was  in  i860  that  Parsons  went  to  Sacra- 
mento to  urge  the  passage  by  the  legislature 
of  his  famous  "Bulkhead  bill."  Felton  ac- 
companied him  as  his  friend  and  legal  adviser. 
Tlie  epicure  always  had  reason  to  murmur  at 
the  capital,  but  at  that  time  some  culinary 
Solomon  had  established  there,  at  a  conven- 
ient point,  a  first-class  French  restaurant.     To 


this  refreshing  shelter  would  Parsons  and  Fel- 
ton retreat  every  evening  with  their  invited 
guests.  Many  times  did  they  repair  thither, 
sometimes  hopeful,  sometimes  dejected,  but 
always  exhausted.  The  struggle  in  the  legis- 
lature was  long  and  stubbornly  contestedj  the 
shock  of  battle  was  felt  throughout  the  State. 
Doing  effective  and  silent  work  each  day. 
Parsons  and  Felton  withdrew  from  the  conflict 
with  a  new  coterie  of  friends  every  night.  San 
Francisco  was  anathematizing  them,  but  they 
stood  "unmoved,  enduring  and  immovable." 
Every  day  there  was  a  great  din  in  the  me- 
tropolis, and  every  night  there  was  a  great 
dinner  in  the  capital.  Judge  Freelon  met  the 
two  warriors  in  Sacramento  in  the  heat  of  tlie 
strife,  and  they  told  him  that  a  seat  would 
be  reserved  for  him  at  their  table  that  night. 
"But  I  ought  not  to  partake  of  your  hospital- 
ity while  I  am  opposed  to  your  scheme,"  said 
the  Judge.  "It  does  not  matter,"  responded 
Felton.  "You  must  come  tonight,  and  every 
night  during  your  stay  in  town.  We  never 
talk  'bulkhead'  at  the  table."  Judge  Freelon 
concluded  to  go.  He  was  so  well  entertained 
that  he  went  every  night  until  he  left  the 
capital.  But  he  did  not  hear  the  word  "bulk- 
head" mentioned  at  the  princely  table  of  the 
great  Bulkheader. 

This  famous  bill  proposed  to  grant  to  the 
San  Francisco  Dock  and  Wharf  Company 
(composed  of  Dr.  H.  S.  Gates,  J.  Mora  Moss, 
John  Nightingale,  Abel  Guy,  John  B.  Felton, 
John  Crane,  and  Levi  Parsons — the  latter  be- 
ing the  great  head  of  the  concern)  the  right  to 
build  a  bulkhead,  or  sea  wall,  with  the  neces- 
sary piers,  wharves  and  docks,  upon  the  water 
line  of  1851,  with  the  right  to  collect  dockage, 
wharfage  and  tolls;  also  to  construct  wharves 
and  piers  projecting  at  right  angles  from  the 
sea  wall,  to  a  length  of  600  feet;  also  to  appro- 
priate and  take  possession  of  any  franchise, 
lands  or  wharves  belonging  to  the  city,  and 
also  private  property  on  making  compensation. 

The  feeling  of  the  people  of  San  Francisco 
was  reflected  by  the  Governor,  Hon.  John  G. 
Downey,  whose  veto  of  this  bill  made  him 
the  popular  lion  of  the  time.  Governor  Dow- 
ney said,  among  other  things,  that  from  the 
time  when  the  act  should  become  a  law,  "all 
commercial  intercourse  with  San  Francisco 
would  be  eff"ectua]ly  cut  off,  or  be  carried  on 
upon  such  terms  as  the  Dock  and  Wharf 
Company  might  dictate.  The  products  of 
every  branch  of  domestic  industry,  as  well  as 
every  article  of  foreign  trade,  all  imports  and 


History  of  the  Bench  and  Bar  of  California. 


505 


exports,  all  vessels  approaching  the  shore,  and 
vehicles  approaching  the  water,  might  be  sub- 
jected to  contribution.  Foot  passengers  only, 
but  not  their  baggage  or  effects,  would  be  ex- 
empt from  tribute.  The  right  to  construct  the 
front  streets,  or  to  build  a  bulkhead,  with  the 
necessary  piers,  wharves  and  docks,  and  to 
fix  and  collect  tolls,  had  been  granted  to  the 
city  and  county  of  San  Francisco,  not  in  the 
same  words  adopted  in  this  bill,  yet  in  terms 
not  less  comprehensive  and  effectual.  This 
bill  attempts  to  divest  and  impair  rights  which 
are  to  be  regarded  as  contracts.  It  empowers 
the  company  to  take  private  property,  not  for 
any  public  use,  but  to  facilitate  a  private  en- 
terprise. And  it  is  plainly  repugnant  to  the 
Federal  Constitution,  and  the  constitution  of 
this    State." 

Felton's  conversation  was  fresh,  original  and 
sparkling.  His  wit  was  abundant,  and  was 
set  off  by  the  most  spontaneous,  exuberant 
and  contagious  laughter  of  his  own.  Herein, 
he  closely  resembled  his  distinguished  father- 
in-law,  Judge  Joseph  G.  Baldwin.  Baldwin 
was  full  of  fun,  and  laughed  uproariously,  at 
his  own  jokes.  Baldwin  and  Felton  never 
impaired  the  effect  by  their  turbulent  enjoy- 
ment of  their  own  sayings.  Their  laughter 
seemed  to  follow  naturally,  and  it  was  as  re- 
freshing to  hear  it  as  the  wit  that  evoked  it. 
It  convulsed  all  who  heard  it.  Of  course, 
Felton  was  intimate  with  Shakespeare.  J.  F. 
Bowman  (who  died  in  1884),  once  entertained 
the  members  of  the  Bohemian  Club  with  a 
disquisition  on  the  authorship  of  the  Shakes- 
peare plays.  Felton  heard  of  it  and  asked 
Bowman  if  there  was  really  any  basis  for  the 
claim  that  Bacon  was  the  true  author  He 
was  assured  that  there  was  a  good  deal  to  be 
said  in  favor  of  the  Baconian  theory.  Felton 
and  Bowman  oystered  together  that  night,  and 
Felton  listened  with  great  interest  to  IJow- 
man's  recapitulation.  In  the  discussion  that 
ensued,  Felton  astonished  Bowman  l)y  his 
thorough  Shakespearean  scholarship.  He 
spoke  with  enthusiasm,  and  Bowman  wondered 
if  his  friend  had  not  made  Sliakcspearc  the 
special  study  of  his  life. 

The  profession,  and  the  people,  heard  witii 
genuine  sorrow  of  the  de.alh  (if  this  unselfish 
spirit,  this  master  of  the  law.  The  bar  lue- 
nioria],  addressed  In  the  courts  was  from  the 
lirolitie  pen  of  Josepli  W.  W'inaiis.  aiid  may 
fitly  conclude   this   notice  : 

"To  the  profession  of  his  choice  he  conse- 
crated the  supremest  lal)ors  of  his  life.     Willi 


him  the  law  was  no  narrow  system,  fettered  by 
precedent  and  cramped  by  forms,  but  a  broad, 
comprehensive  science,  devised  by  the  highest 
wisdom,  for  the  proper  direction  and  govern- 
ment of  man  in  all  the  relations  of  society  and 
state.  Imbued  with  such  a  conception  of  its 
dignity  and  objects,  he  was  singularly  success- 
ful, through  the  soundness  of  his  reasoning, 
the  persuasion  of  his  address,  and  the  resist- 
less power  of  his  logic,  in  eliminating  and 
bringing  into  practical  enforcement  those 
great  principles  of  truth  and  right  which  con- 
stitute the  theory  of  jurisprudence.  It  was 
the  aim  of  his  mental  effort  to  convince  the 
understanding,  rather  than  inflame  the  pas- 
sions. Possessing  a  faculty  for  accumulation 
almost  unexampled  in  the  practice  of  the  law, 
he  made  no  idol  of  his  acquisitions,  but  what 
his  toil  had  won  his  liberality  dispensed  with 
lavish  hand.  In  his  numificence  he  was  prodi- 
gal ;    in   his  hospitality   a  prince. 

"His  life,  thougli  blasted  in  its  prime,  was 
fruitful  of  achievement,  and  his  memory  is 
fragrant  with  reminiscences  of  noble  words 
and  manly  deeds.  Contemplated  as  a  patron 
of  the  arts  and  sciences,  a  promoter  of  public 
and  private  enterprises,  and  a  philanthropist, 
he  was  in  each  capacity  alike  conspicuous;  and 
severely  will  be  felt  the  absence  of  that  stim- 
ulating hand." 


JOSEPH  P.  HOGE. 

We  shall  call  him  Colonel  Hoge,  because  as 
"Colonel"  he  was  universally  known ;  but  no 
title  of  any  kind  ever  belonged  to  him,  except 
that  of  Judge,  which  he  acquired  long  after 
he  was  three  score  and  ten. 

Joseph  P.  Hoge  was  a  native  of  Ohio.  He 
received  what  is  called  a  classical  education, 
graduating  from  Jefferson  college.  Pennsylva- 
nia. Returning  to  Ohio,  he  was  there  ad- 
mitted to  the  bar.  When  he  was  about  thirty 
years  old,  he  removed  to  the  Prairie  State, 
settling  at  Cialen.a  and  entering  on  his  profes- 
^^iou.  lie  soon  becime  popular  and  moder- 
ately prosperous.  .\n  unborn  hn-e  of  jmlitics 
was  his,  which  ever  asserted  itself. 

He  had  not  been  long  in  Galena  when  the 
Democracy  snu  hiui  lo  the  Twenty-eighth 
Congress.  In  the  c.imp.iign  which  preceded 
his  election,  ho  made  many  brilliant  slump 
speeches,  and  t<iok  his  ])lace  among  party 
leaders  of  the  Great  West.  At  Washington 
his  was  a  prominent  figure,  and  he  was  rc- 
im-ned  to  the  Twenty-ninth  *  Congress.  His 
political   i)erio(l  was   i84,V47- 


56G 


History  of  the  Bench  and  Bar  of  California. 


At  the  close  of  the  second  session  of  the 
Twenty-ninth  Congress,  1846,  Colonel  Hoge  re- 
sumed law  practice  at  Galena.  He  had  kept  his 
office  open  while  in  public  life,  and  during 
his  second  term  in  Congress  had  formed  a 
partnership  with  Mr.  Samuel  M.  Wilson,  who 
removed  from  Ohio  to  take  charge  of  his 
business.  The  firm  of  Hoge  &  Wilson  prac- 
ticed in  Galena  until  1853,  when  the  two  part- 
ners came  to  San  Francisco  in  company,  and 
continued  their  business  association  here  until 
1864. 

Colonel  Hoge's  life  in  California  was  a  very 
active  one,  politically  and  professionally.  He 
was  conspicuous  in  State  conventions,  and  was 
Mr.  Casserly's  chief  opponent  when  that  gen- 
tleman was  elected  to  the  United  States  sen- 
ate in  1869.  He  was  the  acknowledged  sage  of 
his  party.  He  was  president  of  the  constitu- 
tional convention  of  1878,  and  also  presided 
over  the  board  of  freeholders  of  San  Francicso 
which  prepared  the  defeated  charter  of  1880. 

In  his  profession  the  Colonel  amassed  a 
fortune  of  about  $100,000.  In  1880  we  found 
by  consulting  the  Supreme  Court  reports,  that, 
either  by  himself  or  in  connection  with  his 
long-time  partner,  S.  M.  Wilson,  he  had  ap- 
peared in  the  Supreme  Court  of  this  State 
oftener  than  any  other  member  of  the  bar 
with  four  exceptions. 

In  arguing  a  cause,  Colonel  Hoge  was  al- 
ways animated,  his  countenance  full  of  expres- 
sion, and  his  eyes  full  of  speech.  His  ideas 
were  expressed  with  wonderful  clearness.  He 
argued  a  law  question  like  a  master.  Bench 
and  bar  went  to  him  for  instruction.  He  was 
restive,  however,  in  argument.  He  did  not 
like  to  be  interrupted  by  counsel  or  even  by 
the   court. 

In  the  matter  of  business  location,  this  vet- 
eran showed  rare  conservatism ;  he  looked  out 
to  the  south  and  west  from  the  same  sunny 
offices  in  the  Montgomery  block  for  thirty- 
four  years ! 

Colonel  Hoge  was  elected  on  the  Democratic 
ticket  a  Judge  of  the  Superior  Court  of  San 
Francisco  in  the  fall  of  1888,  for  a  full  term 
of  six  years  from  January  i,  1889.  He  died 
in  office  on  the  14th  of  August,  1891,  aged 
eighty  years.  He  left  grown  sons  and  daugh- 
ters, one  of  the  latter  being  the  wife  of  the 
eminent    lawyer,   D.    M.    Delmas. 


SAMUEL  M.  WILSON. 

This  eminent   lawyer   was  born   in   Steuben- 
ville,  Ohio,  in  1824.     When  he  was  four  years 


old  his  father  died.  He  attended  Grove  Acad- 
emy a  few  years,  but  never  received  a  college 
diploma,  being  compelled  to  maintain  himself 
from  the  time  he  had  the  physical  strength  to 
do  so.  He  read  law  in  the  office  of  General 
Samuel  Stokelev  a  member  of  congress  from 
Ohio,  pursuing  Latin  and  other  studies  at  the 
same  time.  After  his  admission  he  practiced 
at  the  bar  in  Steubenville  a  short  while,  when 
Colonel  J.  P.  Hoge,  who  had  a  good  law 
practice  in  Galena,  Illinois,  and  who  was  then 
in  congress,  invited  him  to  Galena  and  offered 
him  a  partnership,  which  he  accepted.  This 
was  in  1845.  Colonel  Hoge  was  thirteen  years 
older  than  Mr.  Wilson.  They  had  known  each 
other  in  Ohio,  where  Colonel  Hoge  was  also 
born,  and  where  the  Colonel's  sister  and  Mr. 
Wilson's  brother  intermarried.  While  at  Gal- 
ena the  district  attorney  of  the  county  resigned, 
and  Mr.  Wilson  was  appointed  to  fill  the  va- 
cancy. The  only  criminal  law  business  which 
he  ever  attended  to  devolved  upon  him  dur- 
ing his  fragment  of  a  term  as  district  attorney 
of  Jo  Daviess  county.  He  never  liked  this 
branch   of   law  practice. 

Mr.  Wilson  first  met  at  Galena  the  lady 
who  became  his  wife.  Having  studied  for  his 
profession  in  the  office  of  a  congressman,  aft- 
erwards having  effected  a  business  partner- 
ship with  a  congressman,  it  very  curiously  co- 
incided that  he  should  form  a  matrimonial  al- 
liance with  the  family  of  another  M.  C.  His 
wife  was  a  Missouri  lady,  daughter  of  John 
Scott,  delegate  to  congress  from  Missouri  Ter- 
ritory, and  the  first  representative  to  congress 
after  the  admission  of  Missouri  as  a  state. 
Messrs.  Hoge  &  Wilson  remained  in  partner- 
ship in  Galena  until  1853,  when  they  came  to- 
gether to  San  Francisco,  continuing  their  part- 
nership there. 

The  old  Galena  firm  held  together  in  San 
Francisco,  having  offices  in  Montgomery  block 
and  conducting  a  large  business,  until  in  1864. 

Upon  the  separation  of  Messrs.  Hoge  and 
Wilson  the  later  formed  a  partnership  with 
his  brother,  David  S.  Wilson,  which  con- 
tinued about  one  year  and  a  half,  when  Da- 
vid S.  removed  to  Iowa,  where  he  was  after- 
wards elected  a  Circuit  Judge.  In  1866  Mr. 
A.  P.  Crittenden  joined  Mr.  Wilson,  and  the 
firm  of  Wilson  &  Crittenden  continued  until 
the  death  of  Mr.  Crittenden  in  1870.  From 
1870  to  1874  Mr.  Wilson  had  no  partner,  but 
retained  Judge  W.  W.  Cope  to  assist  him  in 
his  business.  In  January,  1874,  Mr.  Wilson 
and  his  second  son,  Russell  J.  Wilson,  be- 
came  associated   in   business,  and   the   firm   of 


History  of  the  Bench  and  Bar  of  California. 


567 


\V  ilson  &  Wilson  continued  without  change, 
other  than  the  admission  of  another  son, 
M.  S.  Wilson,  until  Mr.  Samuel  M.  Wilson's 
death. 

Mr.  Wilson  enjoyed  an  enormous  revenue 
from  his  regular  practice.  He  was  attorney 
for  a  score  of  millionaires ;  also,  for  many  of 
our  most  prosperous  mining  companies ;  for 
the  Safe  Deposit  Company,  for  Wells,  Fargo 
&  Co. ;  also,  for  the  Bank  of  California, 
the  original  articles  of  incorporation  of  which 
he  drew  when  the  institution  was  located  at 
the  southwesterly  corner  of  Washington  and 
Battery  streets,  away  back  in  1864.  He  also 
frequently  appeared  as  attorney  for  the  Cen- 
tral  Pacific   Railroad  Company. 

He  was  a  methodical,  patient  worker  and 
investigator.  With  the  aid  of  his  sons  he 
wielded  his  immense  practice  without  difficulty. 
Vvnne  perfectly  unassuming,  he  had  the  fullest 
confidence  in  his  own  capacity,  as  may  be  in- 
ferred by  his  opoosing.  single-handed,  as  he 
did,  the  giants  of  the  eastern  bar  before  the 
most  august  bench  in  the  land.  He  equipped 
himself  in  complete  armor  for  every  encounter. 
His  library  was  well  selected,  and  in  utility 
and  number  of  volumes  was  not  exceeded  by 
any  private  law  librarv  in  the  State,  although 
that  of  R.  H.  Lloyd  gradually  came  to  be 
larger.  He  had  what  is  called  a  legal  mind 
— a  well-balanced  mind.  He  was  a  lawyer 
clear  through,  and  made  law  his  constant 
study.  He  loved  the  science.  He  had  a  genius 
for  work.  His  habits  were  excellent — his  life 
blameless.  He  had  a  fine  judgment,  a  vast 
fund  of  common  sense. 

His  delivery  was  quiet  and  deliberate,  his 
speech  plain.  He  very  rarely  touched  orna- 
ment, and,  while  always  earnest,  did  not  often 
warm  up.  Simple  in  his  tastes  and  dress,  free 
from  haughtiness  and  affectation,  he  yet  pos- 
sessed a  more  magisterial  air  than  any  other 
bar  leader  of  the  State.  He  enjoyed  the  un- 
qualified respect  of  the  entire  bench  and  bar. 

In  the  mortgage  tax  cases,  the  Beale  street 
cases,  the  New  City  Hall  case,  the  case  of 
Sill  vs.  Reese,  the  Black  will  contest,  and 
many  others  which  e.xcitcd  deep  interest  in  the 
public  mind,  he  was  conspicuous,  and  gener- 
ally led  the  successful  side,  'ilie  case  of  Cun- 
ningham vs.  Ashley  et  a!.,  tried  at  an  early 
day,  involved  the  title  to  the  lot  of  land  on 
which  the  Mills  building  now  stands.  The 
plaintiff  was  D.  O.  Mills'  father-in-law.  wlm 
built  and  owned  the  Nucleus  building,  now  the 
Exatiiincr  building.  The  defendants  were  De- 
los    R.    Ashley    and    Jesse    D.    Carr.    the    latter 


now  a  wealthy  farmer  in  Monterey  county,  and 
Ashley  afterwards  becoming  State  Treasurer. 
Mr.  Wilson  was  for  Cunningham,  and  pre- 
vailed over  John  B.  Felton,  D.  P.  Barstor 
and  John  Garber.  The  case  of  Porter  vs. 
W'oodward  et  al.  was  brought  to  recover  a 
part  of  Woodward's  Gardens  and  adjacent 
grounds  of  large  area.  There  were  many  de- 
fendants and  some  twenty-five  attorneys  ap- 
peared on  their  behalf,  but  the  defense  was 
chiefly  conducted  by  Messrs.  Wilson  and  J. 
R.  Jarboe.  The  plaintiff's  attorneys  were  Wil- 
liam H.  Patterson  and  B.  S.  Brooks.  The  case 
was  ably  contested  and  was  taken  to  the  Su- 
preme Court.  The  defendants  were  success- 
ful in  the  District  Court  and  on  appeal. 

Mr.  W' ilson  did  well  to  eschew  criminal 
practice.  In  the  line  of  civil  business  he  kept 
farther  from  the  people,  his  name  was  less 
before  the  public  eye,  he  was  seen  less,  but 
he  was  felt  more.  He  was  not  suited  to  the 
bustle  and  excitement  of  criminal  trials. 
His  deliberation  and  judicial  cast  of  mind 
kept  him  off  the  stage  where  guilt  and  justice 
meet.  He  was  not  strong  in  appealing  to  the 
feelings,   the  passions. 

"He  had  not  learned  the  mystery  of  awakening 
Those    chorded    keys   that    soothe    a    sorrow's 

aching. 
Giving   the   dumb    heart   voice   that    else   were 

breaking." 

But  in  the  wide  domain  which  he  so  in- 
dustriously explored  for  so  many  years,  his 
capacity  for  investigation,  his  powers  of  argu- 
ment, his  poise  of  judgment,  found  a  congenial 
field.  They  impressed  his  mind  upon  the  juris- 
prudence of  the  State.  In  court  Mr.  Wilson 
was  of  easy  bearing,  but  not  courtly.  He  took 
full  notes  and  never  mistook  evidence.  He 
used  his  books  with  much  discrimination.  His 
authorities  were  in  point.  He  talked  forci- 
bly, but  not  finely.  He  was  cool,  clear,  emi- 
nently practical,  concise,  cogent,  logical.  His 
style  was  strictly  argumentative;  there  was  no 
iiurry.  no  fretfulness.  no  impatience.  He  en- 
tered the  courtroom  "strong  in  the  assured 
sense  of  present  skill,  in  the  calm  knowledge 
that  the  hours  would  bear  good  fruit." 

In  the  San  Francisco  Superior  Court,  De- 
partment 2.  1880 — Calhoun  Bcnham  appearing 
for  i)laintiff,  Mr.  Wilson  for  defendant — a  jury 
being  impaneled,  Benham  wanted  to  amend 
his  complaint  and  proceed  with  the  trial.  Mr. 
Wilson  objected,  and  insisted  that  if  tlic 
amendment  was  allowed  the  trial  should  be 
postponed.  "I  prepare  my  cases,"  he  said.  "I 
Iiave    analyzed    this    complaint.      I    know    just 


568 


History  of  the  Bench  and  Bar  of  California. 


what  the  plainliff  will  be  permitted  to  prove 
under  each  count  (holding  up  a  list  of  his  au- 
thorities). If  this  amendment  is  allowed  I 
may  desire  to  demur;  or  I  may  move  to  strike 
out ;  or  I  may  answer  it ;  1  prepare  my  cases, 
so  that  when  I  come  into  court  1  may  be  able 
to  assist   the  court  and  jury." 

John  M.  Burnett  (sotto  voce) — And  to  beat 
the  other  side. 

TIic  tlu'U  oldest  short-hand  reporter  in  Cali- 
fornia, tlie  laic  A.  J.  Marsh,  gave  it  as  his 
opinion  that  Mr.  Wilson  was  the  most  subtle 
cross-examiner  he  ever  heard,  except  Durant 
of  Boston,  a  contemporary  of  Choate.  Speak- 
ing of  Choate,  who  was  never  properly  re- 
ported, the  reporter  whom  we  have  just  named 
stated  that  there  were  a  dozen  short-hand 
gentlemen  in  S;m  Francisco  who  could  report 
Choate's  speeches  verbatim.  This  he  said  in 
i88i. 

Mr.  Wilson  appeared  in  the  Supreme  Court 
of  the  United  States  more  frequently  than  an} 
other  member  of  the  California  Ijar.  One  of 
the  most  interesting  of  the  causes  whicli  took 
Mr.  Wilson  to  the  highest  tribunal  of  the 
nation  was  the   Broderick  will  case   (q.  v.). 

John  Parrott,  the  well-known  San  Francisco 
millionaire,  brought  suit  against  Wells,  Fargo 
&  Co.,  in  the  United  States  Circuit  Coitrt,  in 
San  Francisco,  to  recover  damages  for  injuries 
to  the  granite  structure  on  the  northwesterlj' 
corner  of  Montgomery  and  California  streets, 
caused  by  the  explosion  of  a  case  of  nitro- 
glycerine, in  the  charge  of  that  company,  on 
the  sixteenth  of  April,  i866.  The  dangerous 
explosive  was  brought  by  steamer,  on  April 
14.  from  New  York  City,  by  way  of  Panama. 
On  the  wharf  it  was  discovered  that  the  con- 
tents of  the  box,  which  resembled  sweet  oil, 
were  leaking,  and  on  the  i6th,  in  accordance 
with  custom,  the  box  was  carried  to  ijie  build- 
ing mentioned  for  examination  in  the  presence 
of  the  agents  of  the  express  company  and 
the  Pacific  Mail  Steamship  Company,  that  it 
might  be  ascertained  if  possible  which  com- 
pany should  repair  the  loss.  An  employee  of 
the  express  company,  under  instructions,  with 
mallet  and  chisel,  was  in  the  act  of  opening 
the  box  when  the  contents  exploded,  instantly 
killing  all  preseiU,  among  them  Mr.  Knight,  a 
brother-in-law  of  Governor  Haight,  and  Mr. 
Webster,  a  well-known  citizen,  the  two  gen- 
tlemen being  agents  of  the  two  companies.  Su- 
pervisor Bell,  of  the  Eighth  Ward,  who  was 
passing  the  building  on  the  California  street 
side,  was  also  killed  instantly.  The  building 
was  badly  damaged,  and  windows  were  shat- 


tered in  a  large  number  of  other  edifices  within 
a  circuit  of  two  l)locks.  It  cost  Wells,  Fargo 
&  Co.  $(),ooo  to  repair  the  damages  to  the  part 
of  the  building  occupied  by  them,  Parrott's 
suit  being  for  injuries  to  other  parts  of  the 
same  structure.  Mr.  Wilson,  appearing  for 
Wells,  Fargo  &  Co.,  won  this  case  in  the  Cir- 
cuit Court,  and  also  on  appeal.  In  the  United 
States  Supreme  Court  he  was  alone  on  his 
side,  and,  as  the  reporter  states,  he  "argued  the 
case  thoroughly,  on  the  precedents.  English  and 
American."  He  had  for  antagonists  Mr.  R. 
M.  Corwine  and  Mr.  Benjamin  R.  Curtis,  the 
latter,  in  tiie  judgment  of  many,  the  fore- 
most lawyer  of  the  country.  The  court  held 
tliat  there  was  no  negligence  on  the  part  of 
either  the  steamship  or  express  company,  nor 
of  any  of  their  agents  or  employees — that  they 
had  no  knowledge  of  the  contents  of  the  box, 
and  no  means  of  knowledge;  that  nitro-glycer- 
ine  was  not  then  known  as  an  article  of  com- 
merce :  and  that  the  companies  named,  as 
common  carriers,  were  not  bound  to  inquire 
concerning  the  contents  of  the  box,  having 
no  reason  to  have  their  suspicions  awakened. 

Mr.  Wilson  was  not  active  in  politics,  but 
was  several  times  a  member  of  local  conven- 
tions. Governor  Haight  once  tendered  him  a 
seat  on  the  Supreme  bench,  and  wrote  him  a 
letter,  earnestly  pressing  him  to  don  the  er- 
mine, but   he  declined. 

With  his  old  partner.  Colonel  Hoge,  he  was 
a  member  of  the  board  of  fifteen  freeholders 
of  San  Francisco  who  prepared  the  defeated 
charter  of  1880,  and  also  of  the  State  con- 
stitutional convention  of  1878.  Of  the  latter 
body  Colonel  Hoge  was  President,  and  Mr. 
Wilson  was  chairman,  of  the  judiciary  com- 
luiitee.  He  refused  to  sign  the  new  constitu- 
tion. He  rarely  addressed  the  people.  Among 
the  few  occasions  when  he  did  so  may  be  men- 
tioned his  Fourth  of  July  oration  at  Sacra- 
mento in  i860,  and  his  address  at  the  laying 
of  the  corner-stone  of  the  State  Capitol.  His 
latest  production  outside  of  his  profession  was 
also  his  best — his  eulogy  upon  Samuel  J.  Til- 
den,  before  the  State  Democratic  Club,  at 
San  Francisco,  shortly  after  the  statesman's 
death  in  1886.  This  he  had  written  out,  and 
he  read  it  with  fine  emphasis  and  effect  before 
a  large  and  select  audience.  It  was  excellent 
in  thought  and  expression,  and  is  preserved 
in  pamphlet  form. 

It  may  be  added  that  Mr.  Wilson  hus- 
banded an  ami)le  competence,  and  owned  one 
of  the  most  valuable  and  commodious  private 
residence    in    his    city.      He    was    of    fine    per- 


History  of  the  Bench  and  Bar  of  California. 


569 


sonal  presence,  'of  medium  stature,  with  dark 
features  and  high  forehead.  Having  raised 
a  large  family,  and  become  a  grand-father,  he 
still  seemed  to  "wear  the  rose  of  youth  upon 
him,"  and  at  three-score  and  three  he  still  se- 
curely held  the  proud  eminence  which  had 
long  been  his  of  right. 

He  died  suddenly,  at  San  Francisco,  on  the 
4th  day  of  June,  1892,  nearly  sixty-nine  years 
old.  He  was  in  his  office  at  work  on  the  day 
before,  and  attended  a  meeting  of  the  Bar  As- 
sociation in  the  evening. 


LORENZO    SAWYER. 

Lorenzo  Saw3^er,  who  held  the  most  exalted 
judicial  stations  in  California,  was  born  in 
Jefferson  county,   New  York,   May  23,   1820. 

Lorenzo  Sawyer  was  born  on  a  farm,  and 
lived  there  imtil  his  sixteenth  year.  In  win- 
ter he  attended  the  district  school ;  in  summer 
he  helped  to  bear  the  harvest  home.  The 
neighborhood  contained  a  large  and  excellent 
library,  of  which  he^  availed  himself  at  night 
and  on  Sundays.  After  passing  a  year  at  the 
high  school  at  Watertown,  New  York,  called 
the  Black  River  Institute,  he  went  with  his 
father  and  family  to  Pennsylvania,  where  a 
new  farm  was  located  and  cleared.  The  next 
eight  years  were  spent  in  teaching  school  in 
New  York  and  Ohio,  and  in  reading  law.  He 
was  admitted  to  the  bar  in  Ohio  in  1846. 
He  went  to  Wisconsin,  and  forming  a  partner- 
ship with  John  E.  Holmes,  then  Lieutenant 
Governor,   commenced   the    practice   of   law. 

In  July,  1850,  he  arrived  in  California,  hav- 
ing crossed  the  plains  with  a  company  of 
young  men  from  Wisconsin. 

The  history  of  the  bar  of  Nevada  county, 
which  was  written  by  the  Hon.  A.  A.  Sar- 
gent, makes  Lorenzo  Sawyer  one  of  the  most 
prominent  figures  of  that  day.  His  library 
at  first  consisted  of  eleven  volumes,  brought 
from  the  Prairie  State.  His  brief  life  at  Ne- 
vada was  broken  by  a  visit  to  San  Francisco, 
where  he  had  decided  to  locate  ])ermanc'nlly. 
Disaster  came  upon  iiim.  Ihe  lionors  wliich 
that  people  had  in  store  fur  him  were  imre- 
vealed,  and,  being  twice  burned  nut  of  iiis 
office,   he   returned   to   iiis   mountain   town. 

In  the  autumn  of  1853  Judge  Sawyer  re- 
moved to  San  Francisco,  and  resided  there 
until  his  death.  During  liis  short  stay  tliere 
in  1851,  he  was  in  parlnersliii)  witli  Roderick 
N.  Morrison,  then  County  Judge,  and  Frank 
M.  Pixlcy.  Judge  Morrison  was  .Mr.  Pix- 
ley's  uncle.  His  name  i-<  iiixm  many  page: 
of  our   earlier    .Supreme    ("ouri    i\<-ports. 


Judge  Sawyer  had  not  been  in  San  Fran- 
cisco a  year  when  he  was  elected  city  attor- 
ney. Lnigation  was  very  heavy  at  that  time- 
the  cuy.  too,  was  involved  in  many  suits' 
Hurmg  Ins  term  of  office,  no  judgment  was 
obtamed  agamst  the  city,  and  of  the  judg- 
ments which  were  rendered  in  her  favor  only 
one-Hazen  vs.  San  Francisco-was  reversed 
on  appeal. 

In  the  spring  of  1861  lie  formed  a  part- 
nership with  General  Charles  H.  S.  Wil- 
liams, which  continued  until  his  appointment 
to  the  bench  of  the  Twelfth  District  Court. 

This  firm  established  a  branch  office  at  Vir- 
gmia  City,  Nevada,  where  Judge  Sawyer  was 
temporarily  engaged,  when  in  May,  1862,  Gov- 
ernor   Stanford   appointed    him   Judge    of   the 
Twelfth     District     Court,     Judge     Alexander 
Campbell  having  resigned.    Crossing  the  snow- 
wrapped  mountains  on  horseback,  he  reached 
San  Francisco  on  Saturday  night,  and  on  the 
next  Monday,  June  2,   1862,  he  opened  court 
at  Redwood,  in  ^an  Mateo  county— the  coun- 
ties  of   San    Francisco   and    San    Mateo   com- 
prising the  Twelfth  District.     He  was  elected 
at   the   next   general   election    for   a   full   term 
without    opposition,    both    parties    having    put 
hmi    in    nomination.      Under    our    reorganized 
judicial     system,     pursuant     to    our    amended 
State  constitution,  in  1863,  Judge  Sawyer  was 
elected  on   the   Republican   ticket  a  Justice  of 
the   Supreme   Court.      On   casting   lots,   as   re- 
quired by  the  constitution,  he  drew  the  middle 
term,  six  years.     During  the  last  two  years  of 
his   term   he   was   Chief  Justice.      In    1869,   as 
his  term  as  Supreme  Judge  was  drawing  to  a 
close.  Judge   Sawyer  was  appointed  by   Presi- 
dent  Grant,  Judge   of  the   United   States   Cir- 
cuit   Court    of    the    Ninth    Circuit,    embracing 
the   Pacific   States.     The   senate  confirmed   the 
nomination    without    dissent,    and    he    entered 
upon  tlie  office  in  the  beginning  of  1870. 

Judge  Sawyer's  latest  pulilic  address  was 
that  delivered  at  the  laying  of  the  corner-stone 
of  tjie  Lelaml  Stanford.  Junior,  L^niversity. 
ilic  act  of  placing  the  stone  was  done  by 
Senator  Stanford,  the  founder  of  the  Univer- 
sity, at  the  site  of  Palo  Alto,  Santa  Clara 
c.iinty.  May  14,  1887.  Judge  Sawyer's  name 
bad  led  tlie  list  of  ilie  lionored  and  worthy 
men  wlioni  the  founder  had  selected  as  trus- 
tees of  tlu'  institution,  and  at  the  organiza- 
tion of  these  genllenien  as  a  board  of  trus- 
tees, the  Judge  was  nnanimouslv  chosen  as 
president  of  the  board.  By  virtue  of  that 
office  he  was  called  uiion  to  make  the  address 
01;    the    occasion    stated. 


570 


History  of  the  Bench  and  Bar  of  California. 


Judge  Sawyer,  while  still  United  Slates  Cir- 
cuit Judge,  died  at  San  Francisco  on  the  /th 
day  of  September,  1891.  He  had  been  twice 
married,  and  was  a  widower.  He  left  an  es- 
tate of  $300,000.  nearly  all  of  it  devised  to  his 
two  sons,   Prescott  and  Houghton   Sawyer. 

HENRY   EDGERTON. 

Of  all  the  men  who  attained  distinction  in 
California,  Henry  Edgerton  stood,  as  an  orator, 
next  to  E.  D.  Baker  and  Thomas  Fitch.  He 
was  a  native  of  Vermont,  born  in  1830,  and 
came  to  California  in  1853.  He  came  with 
the  law  as  his  profession,  and  with  an  over- 
mastering political  ambition,  which  was  not 
destined  to  be  gratified  in  any  great  measure, 
but  which  really  was  a  serious  obstacle  to  his 
success  at  the  bar.  Public  attention  was  first 
attracted  to  him.  and  powerfully,  by  a  brilliant 
and  successful  canvass  he  made  for  State  sen- 
ator in  1859,  in  the  district  cotiiprising  Napa, 
Solano  and  Yolo  counties.  He  was  a  Douglas 
Democrat,  and  the  old  Sacramento  Union  pub- 
lished stenographic  reports  of  his  speeches  ar- 
raigning the  Buchanan  administration.  When 
the  war  broke  out  he  was  the  chief  speaker 
and  debater  in  the  senate  on  the  Union  side, 
Harry  I.  Thornton  leading  the  opposition. 

In  the  spring  of  1863.  just  when  the  doors 
of  the  lower  house  of  congress  seetned  about 
to  open  to  him,  Edgerton.  who  was  always 
driven  by  a  strange  and  vexed  fate,  turned 
from  the  prospect  to  aim  at  a  higher  mark, 
namely,  the  United  States  senate.  He  went 
to  Nevada  territory,  which  was  seeking  ad- 
mission as  a  state  of  the  Union,  and  practiced 
law  at  Virginia  City.  In  the  fall  of  that  year 
a  Constitutional  convention  having  submitted 
an  organic  law,  the  people  voted  on  the  ques- 
tion of  statehood.  The  public  sentiment  of 
Nevada,  as  always  since,  with  rare  exceptions, 
was  overwhelmmgly  Republican,  and  the  judg- 
ment of  that  party  had  unanimously  fixed  upon 
John  A.  Collins  and  Henry  Edgerton  for  the 
first  United  States  senators  from  the  new  state, 
in  the  event  of  the  adoption  of  the  proposed 
constitution.  But  the  constitution  was  defeated, 
and  thereafter  it  was  to  be  said  of  Edgerton : 
"The  dirges  of  his  hope  the  melancholy  bur- 
den bore,  of  never,  never  more !"  In  the  fol- 
lowing year  the  people  voted  in  favor  of 
statehood,  congress  passed  the  act  of  admis- 
sion, while  the  country  was  in  the  throes 
of  war.  and  Governor  James  W.  Nye  and 
William  M.  Stewart,  who  had  succeeded 
Collins  and  Edgerton  in  their  party's  prefer- 


ence, were  sent  to  the  Federal  senate.  A  year 
or  two  thereafter  Edgerton  moved  back  to 
California  and  made  his  home  at  Sacramento. 
He  continued  to  take  an  active  part  in  politics, 
and  in  every  Presidential  and  State  campaign 
since  that  time  he  spoke  for  his  party  on  the 
stump.  He  was  a  pleasing  speaker,  very  fond 
of  the  art,  was  happy  in  expression  and  was 
of  commanding  countenance  and  voice.  Yet 
he  suffered  by  comparison  with  Baker  or 
Fitch,  his  voice  being  less  flexible  and  musi- 
cal, his  memory  less  reliable  and  his  gesture 
lacking  the  grace  of  the  masters  named.  More- 
over, he  always  betrayed  too  much  conscious- 
ness of  his  surroundings,  and  public  speaking 
was  not  with  him  the  play  it  was  with  Baker 
and  Fitch.  But,  as  already  said,  he  suffered 
l)y  comparison  with  them  only. 

Edgerton  represented  Sacramento  in  the 
State  senate,  in  three  consecutive  sessions, 
closing  with  that  of  1877-78.  To  revert  to  his 
earlier  senatorial  record,  contrasted  with  which 
his  latter  or  second  period  of  service  was  of 
minor  interest,  it  must  be  stated  as  a  truth 
of  history  that  Edgerton  supported  the  Par- 
sons' Bulkhead  bill  of  i860,  which  was  hostile 
to  San  Francisco,  and  the  veto  of  which  by 
Governor  Downey  called  forth  a  great  popular 
detnonstration  of  delight. 

In  one  of  his  speeches  in  behalf  of  this 
measure,  he  uttered  a  philippic  against  George 
Gordon,  which  is  preserved  in  the  old  Union 
files,  and  is  perhaos  the  severest  and  most  elo- 
quent production  of  its  kind  ever  spoken  in 
our  legislature.  Another  specimen  of  his  power 
in  the  same  line  was  in  his  great  anti-railroad 
speech,  published  in  The  Bulletin  of  August 
18,  1873,  and  addressed  to  Robert  Robinson, 
Edward  Robinson  and  Judge  S.  W.  Sander- 
son. 

In  1861  Edgerton  introduced  the  resolutions 
to  e.xpunge  from  the  journal  tiie  resolmions 
of  the  legislature  censuring  Broderick  and  de- 
manding his  resignation.  His  expunging  res- 
olutions were  passed.  He  and  William  Higby 
and  Alexander  Campbell  were  the  counsel  em- 
ployed to  prosecute  Judge  James  H.  Hardy,  on 
his  impeachment  trial  before  the  State  sen- 
ate  in   1862. 

The  accused  Judge  was  removed  from  office, 
and  by  act  of  the  legislature  the  cotmsel  named 
were  paid  $1,000  each. 

A  strict  Republican,  he  was  yet  warmly 
attached  personally  to  certain  prominent  Dem- 
ocratic leaders.  When  Horace  Smith,  the 
lawyer,   and   brother-in-law   of  Judge   Hardy, 


History  of  the  Bench  and  Bar  of  California. 


571 


came  to  San  Francisco  on  New  Year's  Day, 
1861,  and  killed  Newell,  a  printer,  for  alleged 
slander  of  Smith's  wife,  it  was  owing  to  Ed- 
gerton's  efforts  that  Smith  secured  a  change  of 
venue  to  Placer  county.  Judge  Campbell  of 
the  Twelfth  District  Court  denied  a  motion  to 
change  the  venue,  and  Edgerton,  at  the  in- 
stance of  Smith's  friends,  introduced  a  bill  to 
effect  tne  change  they  desired.  This  l)ill 
passed,  and  Governor  Downey,  a  Democrat, 
vetoed  it.  but  it  was  passed  again  over  the 
veto. 

Edgerton  voted  with  the  Democrats  on  the 
organization  of  the  evenly  balanced  State  sen- 
ate at  the  session  of  1873-74.  He,  for  some 
reason  not  publicly  explained,  refused  to  vote 
for  General  George  S.  Evans,  the  Republican 
caucus  nominee  for  President  pro  tern.,  but 
voted  for  William  Irwin,  Democrat,  who  was 
elected  on  the  nineteenth  ballot.  At  the  next 
session  the  Democrats  had  thirty  out  of  forty 
senators.  Edgerton  led  the  Republican  minor- 
ity and  voted  with  them  for  General  Evans, 
who  was  again  their  candidate  for  President 
pro  tem. 

Two  or  three  times  in  his  last  twenty 
years  Edgerton  took  up  his  residence  in  San 
Francisco,  but  eacli  stay  was  comparatively 
brief. 

In  the  Presidential  election  of  1880,  when 
the  State  went  Democratic  by  a  small  mapority, 
Edgerton  was  on  the  Republican  electoral 
ticket.  He  made  an  eloquent  canvass  and  led 
his  colleagues  at  the  polls,  and  so  was  elected 
with  five  Democrats,  defeating  David  S.  Terry, 
whose  name  was  largely  scratched  on  the 
Democratic  ticket.  The  college  cast  five  votes 
for  Hancock  and  one  (Edgerton)  for  Gar- 
field. 

He  was  again  elected  a  Presidential  elector, 
this  time  with  all  his  party  ticket,  in  1884, 
and  by  llie  selection  of  the  college,  he  per- 
sonally conveyed  the  electoral  vote  of  Califor- 
nia to  Washington. 

We  contributed  the  foregoing,  substantially, 
to  a  San  Francisco  newspaper  on  the  day  after 
Edgerton's  death,  'flic  Examiner  had  this  in 
addition : 

"He  ran  in  1873  as  a  Dolly  Varden  candi- 
date for  State  senator  from  Sacramento,  and 
during  the  canvass  had  a  bitter  personal  con- 
troversy with  Grove  L.  Johnson,  which  is  still 
remembered.  He  was  elected,  and  materially 
assisted  in  the  election  of  Governor  Booth,  to 
the  United  States  senate.  For  this  he  in- 
curred the  enmity  of  the  railroad  people,  but 


the  breach  was  afterwards  patched  up.  He 
represented  Sacramento  in  the  senate  for  two 
successive  sessions,  and  was  during  that  pe- 
riod one  of  the  most  brilliant  members  of  that 
body. 

"He  ran  for  congressman  at  large  in  the  cam- 
paign of  1882,  but  was  defeated.  He  had  had 
congressional  aspirations  at  other  times.  He 
has  always  cut  a  considerable  figure  in  Re- 
publican politics,  and  as  a  stump-speaker  was 
a  great  success. 

"In  January,  1881,  he  was  married  to  Miss 
Virginia  Taylor,  at  the  residence  of  W.  W. 
Stow,   1013   Pine  street. 

"For  the  past  several  years  Mr.  Edgerton 
has  been  a  bird  of  passage  between  this  city 
and  Sacramento.  He  at  one  time  practiced 
law  here  for  a  brief  while,  and  contemplated 
opening  an  office  here  again.  By  neglecting 
his  Sacramento  practice  he  came  to  lose  nearly 
all  he  had.  He  always  lived  beyond  his  means, 
and  died  without  leaving  any  estate. 

"He  was  a  man  of  very  extensive  literary  at- 
tainments, and  had  a  deep  knowledge  of  the 
law.  He  was  a  cultured  man.  In  figure  he 
was  tall,  broad  and  powerful.  The  only  rela- 
tive, besides  his  wife,  who  resides  in  this  State, 
is  Calvin  Edgerton,  one  of  the  leading  law- 
yers   of    Siskiyou." 

Edgerton  died  at  San  Francisco,  November 
3.  1887.  Let  The  lixaiiiiiter  tell  the  mournful 
ending  of  his  life  : 

"Henry  Edgerton,  whose  oratory  and  prom- 
inence in  politics  have  made  his  name  well 
known  throughout  the  State,  passed  away  in 
a  sad  manner  yesterdaj-  morning.  For  sev- 
eral weeks  Mr.  Edgerton,  who  has  long  been 
recognized  as  one  of  the  brilliant  men  in  the 
legal  profession,  has  been  drinking  heavily,  and 
last  Thursday  he  grew  very  sick,  not  having 
been  feeling  well  for  several  days.  He  had 
recently  become  connected  with  an  attorney 
named  Wirt  in  a  lawsuit,  and  has  been  in  the 
latter's  company  for  a  week  or  more.  Last 
Thursday  he  was  in  Wirt's  narrow  office  at 
5 1  (J  Montgomery  street,  and.  being  ill  then. 
Dr.  Stout,  who  had  been  attending  him,  was 
called  in.  At  11  o'clock  at  night  he  seemed 
to  be  better,  and  Wirt  and  others  who  were 
in  the  room  left  him  there  on  the  sofa.  Being 
without  a  cent,  he  had  lodged  several  nights 
lately  in  Wirt's  office.  .\t  nine  o'clock  yester- 
day morning,  when  Wirt  entered  the  room, 
he  found  Edgerton  lying  dead  on  the  lounge. 
Blood  oozed  from  his  cars  and  mouth  and 
clotted  on  his  face  and  hair.  A  stroke  of  apo- 
plexy had  killed  him.  The  body  was  taken  to 
Gray's  undertaking  establishment.  When  the 
blood  was  washed  off  one  would  have  thought 
this  talented  being  was  merelj'  sleeping,  so  calm 
and    natural    was    his    face.      The    great    high 


572 


History  of  the  Bench  and  Bar  of  California. 


foreliead,  and  large  head,  the  firmly  cut  mouth 
and  features,  handsome  in  their  strength,  were 
indications  that  the  dead  man's  fame  had  been 
won  by  his  own  worth." 

At  the  opening  of  the  Civil  War,  at  an 
open-air  meeting  in  Sacramento  city,  Edger- 
ton  was  in  the  midst  of  a  very  earnest  political 
address. 

No  less  a  man  than  Wilson  Flint  interrupted 
him. 

Now,  Wilson  Flint  had  represented  San 
Francisco  in  the  State  senate,  and  had  moved 
to  Sacramento  county  to  become  an  agricultu- 
rist. He  was  no  ordinary  man.  The  follow- 
ing occurred : 

ll  ilson  Flint  (standing  in  the  crowd) — Will 
you  allow  me  to  ask  you  a  question,  Mr.  Ed- 
gerton  ? 

Mr.  Edgcrtoii — Who  are  you? 

Mr.  Flint— Wilson  Flint. 

Mr.  Edgerton  (addressing  the  crowd) — A 
foolish  boy  was  being  examined  once  in  court 
as  to  his  competencj'  to  be  a  witness.  "Who 
made  you  ?"   asked  the   lawyer. 

"Moses,"  answered  the  boy. 

"Who  made  you?"  asked  the  boy. 

"Aaron  made  me,"  replied  the  lawyer. 

"Well,  I  thought  so,"  said  the  boy,  "I  heard 
that  Aaron  made  a  calf,  but  I  don't  see  how 
the  devil  you  got  in  here.''  (Great  laughter  in 
the  crowd.) 

Edgerton  then  resumed  his  speech,  paying  no 
attention  to  Flint,  who  kept  quiet. 

In  presenting  Edgerton's  memorable  "De- 
fense of  Lawyers,"  we  will  preface  it  with 
the  words  of  the  San  Francisco  Bulletin,  which 
published  it  anew  at  the  time  of  the  orator's 
death  : 

"One  of  the  longest  and  most  finished 
speeches  ever  delivered  by  Henry  Edgerton 
was  on  the  subject  of  corporations,  delivered 
during  a  discussion  of  the  railroad  question  in 
the  constitutional  convention  of  1878.  The 
convention  was  composed  of  two  parties,  Non- 
Partisans  and  Workingmen.  After  organiza- 
tion it  divided  into  three  factions — Conserva- 
tives, Moderate  Radicals  and  Radicals.  The 
first  faction  was  led  by  the  lawyers,  of-  whom 
Edgerton  was  one,  the  second  was  composed 
of  a  few  anti-corporation  men,  and  the  farm- 
ers and  mechanics,  and  the  last  was  made  up 
of  the  workingmen. 

"For  sometime  before  the  great  corporation 
debate  referred  to  began,  the  influence  of  the 
lawyers  in  the  body  had  departed;  not  only 
that,  but  it  had  become  the  fashion  to  sneer 


at  them,  ridicule  their  words  of  caution  and 
vote  down  every  constitutional  principle  which 
they  advocated. 

"This  preliminary  statement  is  made  to  ex- 
plain the  quotation  which  follows.  At  the  close 
of  his  speech  on  corporations,  which  occupied 
an  afternooti,  Edgerton  referred  to  the  pre- 
vailing fashion  of  denouncing  the  leaders  of 
the  Conservatives  as  'corporation  lawyers,' 
and  delivered  the  following  defense  of  that 
profession.  It  attracted  some  public  attention 
at  the  time,  and  is  worth  quoting  again  now  : 

"Edgerton's  words  were  as  follows : 

"Mr.  Chairman,  I  confess  that  I  have  ad- 
dressed this  convention  not  w-ithout  some  mis- 
givings. I  am  a  lawyer,  and  have  been  a 
legislator,  two  employments  that  seem  to  have 
come  under  the  ban  of  this  house,  I  have  a 
realizing  and  saddened  sense  that  the  profes- 
sion to  which  I  belong  does  not  enjoy  the  con- 
fidence, the  respect,  the  homage  of  the  peo- 
ple, in  that  high  degree  that  it  once  did.  But, 
sir,  for  this  the  people  are  theinselves  to 
blame.  From  what  I  cannot  but  regard  as 
a  most  msitaken  notion,  they  have  done  every- 
thing in  their  power  for  the  last  forty  years  to 
popularize  and  to  democratize  that  profession. 
And  every  effort  that  its  better  representatives 
have  made  during  that  period  to  close  up  its 
ranks  against  charlatans  and  pretenders  has 
been  thwarted  by  the  people.  For  example, 
a  provision  was  placed  in  the  codes  which  be- 
came the  law  in  1873,  prohibiting  any  person 
from  practicing  in  any  court  of  record  in  this 
State  who  had  not  been  admitted  to  the  Su- 
preme Court.  It  was  a  salutary  provision  and 
security  to  the  citizen.  But  at  the  next  ses- 
sion of  the  legislature  a  bill  was  introduced  to 
repeal  it.  and  though  the  lawyers  made  every 
effort  to  preserve  it,  the  farmers  and  mechan- 
ics in  that  body  opposed  it,  and  it  was  re- 
])ealed. 

"But,  sir,  granting  all  that  now  may  be  said 
to  the  disadvantage  of  that  profession,  concede, 
if  you  please,  that,  as  is  alleged,  it  is  some- 
what conservative,  somewhat  aristocratic  in  its 
tendencies,  as  I  look  over  this  body  and  realize 
how  large  and  predominating  is  the  democratic 
element  in  it,  I  cannot  but  think  it  a  fortunate 
circumstance  that  there  are  a  good  number 
of  lawyers  here,  and  among  them  the  best  in 
the  State — some,  indeed,  w-ho  rank  with  the 
best  in  any  State.  And  I  do  not  think  the  ex- 
cellence of  the  work  of  this  body  will  be  at 
all  imi)aired  if  a  very  wide  scope  is  given  to 
the  influence  of  the  lawyers  in  it. 


History  of  the  Bench  mid  Bar  of  California. 


573 


"One  (if  tlie  profoundesl  political  philoso- 
phcM's  and  a  very  close  observer  of  our  Ameri- 
can institutions,  in  his  great  work  entitled. 
"Democracy  in  America."  wrote  this  of  my 
profession  :  'The  profession  of  the  law  is  the 
only  aristocratic  element  which  can  be  amal- 
gamated without  violence  to  that  natural  cle- 
ment of  democracy,  and  which  can  be  advan- 
tageously and  permanently  combined  with  it.  I 
am  not  unacquainted  with  the  defects  which 
are  inherent  in  that  body  of  men,  but  without 
this  admixture  of  law3'er-like  sobriety  with 
the  democratic  principle,  I  question  whether 
democratic  institutions  can  long  be  maintained, 
and  I  cannot  believe  that  a  republic  could  sub- 
sist at  the  present  time  if  the  influence  of  law- 
yers in  public  business  did  not  increase  in  pro- 
portion to  the  power  of  the  people.' 

"Sir,  it  was  the  skill  and  wisdom  of  lawyers 
that  laid  the  fotmdation  and  reared  the  super- 
structure of  that  benign  government  under 
which  we  sit  in  this  hall.  It  was  an  immortal 
company  of  lawyers  whose  statesmanship,  sup- 
ported by  the  deathless  valor  of  its  heroic 
armies,  kept  that  government  firm  on  its  foun- 
dation in  the  most  tremendous  shock  of  war  the 
tmiverse  has  ever  felt.  It  was  a  lawyer  who, 
at  the  call  of  his  country,  in  the  hour  of  its 
direst  peril,  left  the  walks  of  his  profession 
and  became  the  greatest  organizer  of  war  the 
world  has  ever  seen.  But,  sir,  I  need  not  stand 
here  and  call  the  roll  of  its  heroes.  In  the 
senate,  upon  the  bench,  at  the  bar,  in  the  camp, 
in  the  stricken  line  of  battle,  always  and  every- 
where, when  civilization  and  the  rights  of 
mankind  have  been  assailed,  that  profession 
has  been  in  the  vanguard  of  their  defenders. 
The  bones  of  its  martyrs  are  at  the  base  of 
every  great  monument  which  marks  the  prog- 
ress of  the  race,  and  there  is  not  a  legal  secur- 
ity nor  a  constitutional  guarantee  of  liberty 
or  labor  that  is  not  illustrated  by  their  genius 
or  consecrated  and  cemented  bv  their  blood." 


THE  TWO  SMAFTERS. 

Oscar  Lovcll  Shafler  was  born  <in  ihe  loth 
of  October.  t<Si2.  at  Athens,  in  Vermont,  which 
])r.  Bellows,  in  his  centennial  discourse  on 
the  "Life  and  Works  of  Channing,"  declared  to 
be  "the  most  American  of  American  States." 
His  grandfather.  James  Shafter,  was  a  Revo- 
lutionary hero.  l)t'ing  conspicuous  in  freedom's 
army  at  Bunker  ilill  and  Bennington  and  Sar- 
atoga. For  twenty-five  years  he  was  a  mem- 
ber of  the  Vermont  legislature.     His  son,  Os- 


car L.  Shafler's  father,  became  the  judge  of 
his  county,  a  member  of  the  constitutional 
convention  of  1836.  a  legislator  of  his  state, 
and  an  unsuccessful  candidate  for  Governor. 
His  business  was  that  of  a  farmer  and  mer- 
chant. Our  subject  was  educated  at  Wilbra- 
h.im  Academy,  Massachusetts,  and  the  Wes- 
leyan  University.  After  a  brief  experience  in 
a  law  office  in  Vermont,  he  entered  Harvard 
University,  from  which  he  was  graduated  as 
a  law  student  in  1836.  He  immediately  com- 
menced law  practice  at  Wilmington.  Vermont. 
Like  his  father,  he  became  a  candidate  for 
Governor,  and.  like  him.  was  unsuccessful. 
His  party,  the  Young  Liberty  party,  so  called, 
also  presented  his  name  for  representative,  and 
afterwards  for  senator  in  congress.  He  was 
an  original  abolitionist,  not  bigoted,  however, 
in  his  views.  He  saw  that  the  institution  of 
slavery  challenged  the  serious  attention  of  the 
statesman,  and  presented  a  question  upon 
which  the  most  wise  and  magnanimous  might 
disagree.  He  fought  the  institution  until  its 
downfall;  then  his  joy  over  the  freedom  of  the 
slave  was  tempered  by  his  sym])athy  for  the 
dethroned  slaveholder,  who  once  proud  and 
I)owerful.  suddenly  found  himself  reduced  to 
poverty  and  distress.  In  early  boyhood  he  lost 
his  mother,  who  is  represented  as  a  woman  of 
superior  endowments,  majestic  in  form,  and 
possessing  rare  conversational  and  social  qtial- 
ities.  In  1840  he  married  Miss  Sarah  Riddle. 
There  were  eight  children  of  this  marriage — 
seven  daughters  and  a  son. 

After  eighteen  years'  practice,  in  which  he 
won  his  way  to  the  front  rank  of  the  bar  in 
Vermont,  he  determined  Xo  remove  to  San 
Francisco.  His  f.unily  was  large  and  his  fees 
small.  There  was  not  nuich  litigation  in  that 
old  land  of  settled  titles  and  "steady  habits." 
His  friend.  Trenor  W.  Parks,  had  preceded 
him  and  built  up  in  the  new  city  on  the  Pacific 
a  very  extensive  law  practice.  Park  was  a 
member  of  the  gre.it  firm  of  Halleck,  Peachy, 
Billings  &  Park.  The  magnitude  of  the  busi- 
ness dispatched  by  this  firm  in  the  course  of 
a  few  years  was  astounding.  .Although  com- 
prising foiu-  young,  active  and  ambitious  mem- 
bers, it  needed  further  aid  and  counsel.  .Vt 
the  suggestion  of  Mr.  Park  the  firm  sent  lo 
Oscar  L.  Shafter  an  invitation  to  join  them 
as  office  lawyer  and  adviser.  .\s  the  invita- 
tion was  accompanied  by  an  olTcr  of  $io,ooo 
I)er  annum,  it  was  promptly  accepted.  Mr. 
.Sji.ifler  le.iving  iiis  f.unily  :il  liome.  proceeded 
to  San  Fr.incisco.  where  he  arrived  Novem- 
ber   13,    1854,    and    inmiediately    entered    upon 


574 


History  of  the  Bench  and  Bar  of  California. 


the  duties  of  his  profitable  engagement.  He 
kept  the  position  but  one  year,  when  the  firm 
was  dissolved  by  the  withdrawal  of  Mr.  Park. 
The  latter,  with  Mr.  Shafter  and  General  C. 
H.  S.  Williams,  Shafter  and  Park,  formed  a 
new  firm — (C.  H.  S.  Williams,  the  initials  of 
General  Williams  being  used  in  the  firm  name 
because  there  was  another  Williams  at  this 
bar   at   that   time.) 

During  the  year  of  Shafter's  connection 
witli  the  firm  of  Halleck,  Peachy,  Billings  & 
Park  he  kept  a  private  journal,  which  is  still 
preserved,  in  which  he  recorded  his  daily . 
thouarhts  upon  all  kinds  of  subjects — books, 
law.  nu-ii.  society,  climate,  scenery,  etc.  This 
journal  reflects  an  analytical,  philosophical 
mind.  About  November,  1855,  William  Hayes 
quit  the  service  of  C.  H.  S.  Williams,  Shafter 
&  Park,  and  formed  a  partnership  with  Hon. 
Edward  Stanly.  It  had  been  agreed  between 
Williams,  Shafter  &  Park  tJiat  each  should  re- 
tain ..is  own  clientage  obtained  before  tlie  part- 
nership, without  accounting  to  the  firm  for  re- 
ceipts. 

Ihis  was  a  perfectly  organized  law^  office, 
having  its  bookkeener  and  cashier,  it  corps  of 
clerks  for  the  various  departments,  all  under 
a  competent  head,  and  its  own  private  notary. 
At  the  end  of  the  first  year's  business,  in 
1856,  this  firm  had  realized  the  sum  of  $110,000 
above  all  exnenses.  And  the  expenses,  it  will 
be  seen,  must,  considering  the  times,  have 
been  enormous.  In  addition  to  the  large  sum 
named,  each  partner  took  in  many  handsome 
fees  from  his  own  particular  clients.  In  1856 
James  McM.  Shafter  arrived  from  Wisconsin, 
whither  he  had  emigrated  from  Vermont  some 
years  before.  He  had  won  some  fame  as  a 
lawyer  in  Wisconsin,  and  had  been  the  candi- 
date of  a  defeated  party  for  Lieutenant-Gov- 
ernor of  the  state.  He  was  received  here  as 
a  big  legal  gun.  By  mediation  of  his  brother, 
a  partnership  was  at  once  formed  between 
James  McM.  Shafter  and  E.  B.  Mastick.  This 
association  was  very  brief,  and  upon  its  ter- 
mination, James  McM.  Shafter  was  employed 
as  an  assistant  by  Williams,  Shafter  &  Park. 
'I  his  firm  made  a  powerful  combination. 

Shafter,  "the  middle  man"  of  this  firm,  was 
its  balance.  He  was  wise  in  council  and  im- 
pressive in  the  forum,  a  man  of  erudition,  a 
thorough  lawyer;  massive  in  intellect  as  in 
physical  build;  in  habits  maintaining  regular- 
ity; frugal,  abstaining  from  drink,  but  a  hearty 
eater,  and  a  firm  chewer  of  tobacco.  He  was 
a  man  of  unflagging  industry.  His  life  was  a 
laborious  one.  and  presents  another  example  of 


the  rewards  whicli  ])atient  and  intelligent  and 
unremitting  effort  will  secure.  It  was  his  in- 
variable practice,  before  his  family  came  from 
the  East,  to  be  at  his  office  at  seven  o'clock 
in  the  morning,  going  at  once  into  his  li- 
brary. From  that  hour  until  late  at  night, 
exceot  when  in  court,  he  kept  at  work.  There 
were  few  families  here  in  those  days — the 
coninnuiily  was  made  up  chiefly  of  single 
nu-n.  and  nuMi  who  had  left  their  household 
goods  in  other  lands.  A  large  amount  of  law 
business,  office  business,  matters  of  counsel, 
etc..  was  done  at  night.  Tliis  was  to  accom- 
modate business  men  who  in  those  rushing 
days  hated  to  leave  the  jjrecincts  of  trade 
while  daylight  lasted.  Tiie  principal  law  offices 
were  kept  open  until  ten  and  eleven  o'clock 
p.  m.  Shafter  was  the  first  to  reach  and  the 
last  to  leave  the  office.  In  1856  his  family 
joined  him,  and  thereafter  he  arrived  later 
and  departed  earlier.  General  C.  H.  S.  Wil- 
liams, the  other  member  of  the  firm,  was  a 
lawyer  of  tiie  first  class,  but  was  prone  to 
bacchanalian  pleasures ;  too  often  erratic,  he 
was  alwa3's  conscious  of  his  great  powers,  and 
sometitnes,  after  a  long  "rest,"  he  w^ould  work 
up  his  causes  with  marvelous  application.  He 
died  by  his  own  hand.  The  record  of  his 
life  is  invested  with  much  interest.  About  1857 
General  Williams  retired  from  the  firm,  which 
immediately  received  the  accession  of  James 
AIcM.  Shafter  and  Solomon  Heydenfeldt.  Not 
long  afterwards  Judge  Heydenfeldt  (who  had 
been  upon  the  Supreme  bench)  withdrew,  and 
the  firm  became  Shafter,  Park  &  Shafter. 

Under  a  severe  and  solemn  exterior  was 
concealed  in  Oscar  L.  Shafter  a  great  vein  of 
humor.  He  was  a  .man  whom  the  light- 
hearted  and  gay  would  avoid,  not  knowing 
him.  but  he  was  as  fond  of  a  joke,  and  loved 
to  tell  or  hear  a  good  slorj'  as  much  as  any- 
bod}'.  And.  it  may  be  said,  he  was  not  over 
punctilious  in  the  kind  of  stories  he  told. 
However,  he  was  certainly  of  a  reflective,  phil- 
osophical cast  of  mind.  He  was  particularly 
familiar  with  English  literature,  as  his  brother 
James  was  with  history.  In  conversation  he 
was  flowing,  happy,  kind,  genial,  informed. 
E.specially  at  home  at  night  when  he  would 
talk  about  the  poets,  or  upon  any  topic  which 
he  mieht  nick  up  as  a  theme  of  discourse,  he 
would  be  listened  to  with  the  same  close  at- 
tention which  the  professional  lecturer  exacts 
and  appreciates.  The  learned  divine,  Hamilton 
of  Oakland,  had  it  from  Shafter's  children  that 
they,  on  such  occasions,  "lived  upon  his  words 
and    looked    upon    him    with    an    almost    idola- 


^ 


History  of  the  Bench  and  Bar  of  California. 


575 


trous  reverence."  In  the  treatment  of  all  sub- 
jects he  was  comnrehensive.  He  surveyed  and 
took  in  the  whole  theme.  He  was  fond  of 
philosophizing  on  all  current  questions  that 
presented  novel  points.  He  dealt  in  principles : 
and  it  was  from  rigid  application  of  princi- 
ples and  broad  generalization  that  he  arrived 
at  his  conclusions.  Before  a  jury  his  style  was 
a  iittle  stilted.  In  equity  he  was  ornate,  pleas- 
ing, finished,  forcible.  While  his  methods  at 
the  bar — his  investigation,  his  preparations,  his 
presentation — were  the  admiration  of  his  asso- 
ciates and  of  the  iudiciary,  it  must  yet  be  re- 
corded that  his  judicial  career  was  a  disap- 
pointment to  the  orofession — that  is,  his  judi- 
cial successes  were  not  commensurate  with  his 
triumphs  at  the  bar.  In  January,  1864,  nearly 
ten  years  after  his  arrival  in  California,  he 
took  his  seat,  the  elect  of  the  people,  on  the 
Supreme  bench  of  the  State,  as  an  Associate 
Justice.  His  decisions  are  comprised  within 
eleven  volumes  of  the  Reports,  volumes  24  to 
,^4,  inclusive.  During  that  period  some  nine 
hundred  decisions  were  reported,  of  which 
Shafter  wrote  one  hundred  and   fort}'. 

On  December  31,  1867.  he  withdrew  from 
official  as  w-ell  as  from  professional  life  for- 
ever. He  began  the  year  1868.  in  one  sense, 
a  free  man.  but  he  was  a  ruined  man.  Soften- 
ing of  the  brain  had  stealthily  approached. 
As  Rev.  Horatio  Stebbins  somewhat  magnilo- 
quently  expressed  it,  "He  could  no  longer  grasp 
the  isolated  fact,  and  bind  it  in  eternal  fealty 
to  its  principle."  Having  accumulated  a  con- 
siderable fortune  at  his  profession,  and  being 
now  threatened  with  total  eclipse  of  his  pow- 
ers, as  he  had  no  incentive  to  effort.  He  crossed 
the  Atlantic,  visited  the  great  capitals  and 
classic  spots  of  Europe,  and  died  at  Florence, 
Italy,  after  five  years'  wandering,  January  22, 
1873.  His  remains  were  brought  back  to  this 
State  and  were  interred  at  Oakland  on  Sun- 
day, March  24,  1873,  the  funeral  taking  place 
at  the  First  Congregational  Church.  On  that 
occasion  Rev.  Mr.  Stebbins.  who  had  been  an 
intimate  friend  of  Shafter,  and  liad  studied 
his  character,  made  some  touching  and 
thoughtful  remarks.  He  represented  the  dis- 
tinguished dead  as  having  been  "a  man  of 
good  sense — practical,  j^et  with  wide  discourse 
of  intelligence  and  rea.son.  calm,  unimpassivc, 
yet  of  fine  sensibility  and  true  poetic  feel- 
ing; and  his  whole  nature,  by  the  eternal 
weight  of  moral  gravity,  swinging  toward  the 
truth." 

Judge  Shafter's  widow  removed  to  Bo.ston, 
in    the    enjoyment    of   a   considerable    fortune, 


the  product  of  her  husband's  professional  prac- 
tice, which  was  all  accumulated  in  San  Fran- 
cisco. The  eldest  daughter  married  Charles 
Webb  Howard,  a  rich  San  Franciscan.  The 
second  daughter,  Mary,  is  the  wife  of  Mr. 
John  Orr,  of  Orr  &  Atkins,  of  that  city.  This 
lady,  in  addition  to  beauty  of  feature  and 
graces  of  manner,  is  a  woman  of  wide  in- 
formation and  great  strength  of  character,  and 
inherits  in  a  great  measure  her  father's  quali 
lies  of  mind. 


James  McMillan  Shafter,  brother  of  the  pre- 
ceding, won  distinction  in  three  widely  sep- 
arated commonwealths.  In  all  he  was  alike 
conspicuous  in  law,  politics  and  legislation. 
He  was  born  in  Vermont,  May  27,  1816.  Upon 
graduating  from  the  Wesleyan  University, 
Middletown,  Connecticut,  he  commenced  law 
practice,  having  prepared  himself  for  the  pro- 
fession while  a  student  at  the  university.  He 
was  soon  elected  a  member  of  the  lower  branch 
of  the  Vermont  legislature,  and  served  a  term. 
From  1842  to  1849  he  w-as  Secretary  of  State. 
In  the  latter  year  he  fell  in  with  the  great 
current  of  life  rolling  westward,  but  stopped 
in  Wisconsin,  where  he  remained  six  years. 
In.  politics  he  was  a  Whig,  and,  so  far  as  polit- 
ical advancement  was  concerned,  he  found  that 
Wisconsin  was  a  less  favorable  field  than  Ver- 
mont. His  district  was  strongly  Democratic. 
the  heavy  German  element  then  siding  with 
that  party.  In  1851,  however,  he  w'as  elected 
to  the  Wisconsin  assembly,  and  was  made 
speaker.  In  1852  he  ran  for  congress.  So 
marked  was  the  popular  recognition  of  his 
ability  and  integrity  that,  although  defeated, 
he  received  a  thousand  more  votes  than  Gen- 
eral Scott,  his  party  candidate  for  President. 
Ho  was  nominated  again  for  the  ne.xt  term, 
but  declined. 

In  1855  Mr.  Shafter  was  invited  to  Califor- 
nia by  his  brother,  and  reached  San  Fran- 
cisco December  15.  1855.  To  illustrate  the 
extraordinary  alertness  of  both  mind  and  body, 
which  always  distinguished  him.  it  may  be 
sl.ilcd  that  he  landed  from  the  steamship  at 
six  o'clock  in  the  morning,  visited  his  brother's 
office,  engaged  lodgings,  formed  a  partnership 
with  E.  B.  IMaslick,  and  at  ten  o'clock  of  the 
s.'ime  day  was  at  work  reforming  pleadings  in 
a  leading  case. 

•Mr.  Shafter's  association  in  business  with 
M.-.  Mastick  did  not  last  long.  His  brother's 
firm  offered  him  a  tempting  salary  to  assist 
them,  and  he  accepted  it,  entering  their  office 
within  a  few  months  after  his  arrival.     About 


576 


History  of  the  Bench  and  Bar  of  California. 


1857,  on  the  witlKirawal  of  General  Williams 
from  the  firm,  a  new  association  was  formed 
between  Oscar  L.  and  James  McM.  Shatter, 
T.  W.  Park  and  Solomon  Heydenfeldt.  nnder 
the  firm  name  of  Shafters,  Park  &  Heydenfeldt. 
Not  long  afterwards  Judge  Heydenfeldt  with- 
drew, and  the  firm  became  Shafter,  Park  & 
Shafter. 

In  1862-63  Mr.  Shafter  represented  San 
Francisco  in  the  State  senate.  He  was  made 
President  pro  tem.,  and  presided  over  the 
High  Court  of  Impeachment,  which  removed 
J"dge  James  II.  Hardy  from  the  bench  of  the 
Sixteenth  Judicial  District.  He  was  a  lead- 
ing" member  of  the  constitutional  convention 
of  this  State  in  1878.  He  was  afterward  among 
the  strongest  opponents  of  the  instrument 
which  was  framed  by  that  body  and  adopted 
]>y  the  people.  A  member  of  the  judiciary  com- 
mittee, his  views  upon  the  very  interesting 
question  of  Judge  Fawcett's  right  to  a  seat  in 
that  body,  commanded  wide  attention.  Judge 
Eugene  Fawcett,  an  able  lawyer,  was  elected 
a  delegate  to  the  convention  from  Santa  Bar- 
bara county.  He  was,  at  the  time,  the  Judge 
of  the  District  Court  of  the  First  Judicial  Dis- 
trict. The  old  constitution  provided  that  Dis- 
trict judges,  while  such,  were  ineligible  to  hold 
any  other  office.  The  question  was,  "Was 
the  positon  of  member  of  a  constitutional  con- 
vention an  office?"  Judge  Fawcett's  seat  was 
contested,  and  the  matter  was  referred  to  the 
judiciary  committee.  It  provoked  warm  dis- 
cussion in  the  committee  and  in  the  conven- 
tion. The  majority  reported  in  favor  of  aw-ard- 
ing  the  seat  to  Judge  Fawcett,  and  the  report 
was  adopted.  ]\Ir.  Shafter  wrote  a  minority 
report,  which  was  signed  by  him  and  two 
others.  In  this  paper  he  presented  a  masterly 
argument  in  support  of  his  view — that  if  Judge 
Fawcett  were  admitted  he  would  be  holding 
two  offices  at  the  same  time.  Judge  Fawcett 
claimed  that  this  was  in  no  sense  an  ofifice  in 
the  meaning  of  the  constitution,  and  that  even 
if  it  was,  the  people  had  the  right  to  say  who 
should  represent  them  in  a  convention  to 
frame  an  organic  law  :  tliat  if  the  people  of  one 
generation  had  a  right  tu  dictate  to  the  peo- 
ple of  the  next,  they  had  a  right  to  say  how 
and  what  their  descendants  should  do,  and  we 
would  virtually  have  no  power  to  alter  or 
amend  the  organic  law. 

Mr.  Shafter  expressed  his  unqualified  dis- 
sent from  this  doctrine,  and  pronounced  it 
unfounded  and  dangerous.  In  this  report  he 
incidentally  declared  that  the  opinion  of  the 
Supreme  Court   in  the  case  of  the   People  vs. 


Provines  (34  Cal.  520)  was  not  sound,  and 
was  not  entitled  to  very  favorable  considera- 
tion. (This  opiinon.  liy  Judge  Sanderson,  es- 
tablished the  right  of  the  Police  Judge  of 
San  Francisco  to  appoint  policemen.)  Mr. 
Shafter  said  it  controverted  the  soundness  of 
a  long  and  unbroken  stream  of  California  de- 
cisions. 

The  first  leading  case  in  which  Mr.  Shafter 
was  engaged  in  California  was  that  before  al- 
luded to,  upon  which  he  went  to  work  on  the 
morning  of  his  arrival — the  case  of  Birrell 
vs.  Schie,  which  went  to  the  Supreme  Court 
and  is  reported  in  the  Ninth  California,  page 
104.  The  principle  was  here  established  that 
the  debt  can  be  followed  through  several  suc- 
cessive mortgages,  notwithstanding  the  dis- 
charge of  all  those  intermediate,  and  the  tak- 
ing of  new  obligations  surrendering  and  can- 
celing the  old.  In  the  same  volume  of  reports 
is  the  case  of  McMillan  vs.  Richards,  in  which 
the  nature  and  law  of  mortgages  as  they  exist 
i:i  this  State,  the  necessary  incidents  of  re- 
demption from  foreclosure  sales,  the  effect  of 
protest  upon  payment  were  clearly  fixed.  The 
exarnination  of  authorities  and  the  brief  upon 
the  prevailing  side  were  made  and  prepared  by 
Mr.  Shafter,  jointly  with  his  brother  and 
Judge  Heydenfeldt.  ■■  In  Seligman  vs.  Kalk- 
man  (8  Cal.  207),  which  was  conducted  by 
Mr.  Shafter  through  all  the  courts,  it  was 
decided  that  no  title  passed  in  case  of  a  pur- 
chase of  goods  by  an  insolvent  who  knew  of 
his  own  insolvency  at  the  time.  The  doc- 
trine of  this  case  was  subsequently  modified 
by  the  court.  In  Green  vs.  Palmer  (15  Cal. 
411)  Mr.  Shafter  succeeded  in  overturning  a 
decision  of  Judge  Norton,  of  the  Twelfth 
District  Court,  and  procured  from  the  Supreme 
Court  a  decision  which  amounts  to  a  treatise 
upon  the  subject  of  redundancy  in  pleadings. 
The  oninion  in  that  case  was  written  by  Jus- 
lice  Field.  He  was  prominent  in  many  other 
cases  involving  principles  of  pleading  and- con- 
struction of  statutes,  in  which  his  views  were 
accepted  by  the  court,  and  have  become  settled 
doctrines.  In  1861,  while  in  the  State  senate, 
Mr.  Shafter  made  an  effort  to  have  enforced 
the  constitutional  principle  that  all  property 
should  be  taxed.  Failing  in  that  he  instituted 
the  action  of  the  People  vs.  Shearer,  assessor 
of  Marin  county,  to  have  the  claims  to  the 
possession  of  lands,  the  title  to  which  was  in 
the  government,  assessed  and  taxed  like  other 
property.  He  conducted  this  case,  and  pro- 
cured a  decision  requiring  the  taxation  of  these 
lands  against  the  claimants,  notwithstanding 
that  the  title  was  in  the  government. 


History  of  the  Bench  and  Bar  of  Calif oniia. 


0/  / 


Mr.  Sliafter  always  manifested  a  lively  in- 
terest in  agricultural  pursuits.  He  was  for  a 
time  President  of  the  State  Agricultural  So- 
ciety, and  in  September.  1878,  delivered  a  long 
and  thoughtful  address  before  that  body.  He 
was  an  owner  and  breeder  on  a  large  scale 
of  blooded  horses,  cattle  and  other  stock.  Sim- 
ple in  his  tastes,  plain  in  liis  speech  and  dress, 
rep'ular  in  his  habits,  he  was  a  toiler  all  his 
life.  He  believed  in  work,  and  had  repeatedly 
offered  prizes  to  young  people  to  encourage 
them  in  their  struggle,  and  to  impress  upon 
tlieir  minds  a  sense  of  the  beauty  and  dignity 
of  labor.  One  of  his  cleverest  and  most  char- 
acteristic acts  in  this  line  was  the  plate  pre- 
sented by  him  to  a  young  lady  at  the  State 
Fair,  in  1880 — a  prize  won  by  her  for  baking 
the  best  loaf  of  bread,  there  being  many  con- 
testants from  all  parts  of  the  State. 

Mr.  Shafter  married  Miss  Julia  Hubbard 
at  Montpelier,  Vermont.  October  28,  1845. 
After  a  happy  union  of  over  twenty-five  years, 
she  died  in  this  State.  February  11.  1871.  There 
are  living  three  grown  children  of  this  mar- 
riage. The  wide  and  rich  domain  which  Mr. 
Shafter  owned  in  Marin  county  was  acquired 
by  him  in  1856.     It  comprised  25,000  acres. 

Judge  Shafter  was  a  Judge  of  the  Superior 
Court  of  San  Francisco.  1889-90,  being  ap- 
pointed in  July,  1889.  in  place  of  Hon.  J.  F. 
Sullivan,  resigned.  In  that  capacity  he  ren- 
dered the  final  judgment  in  the  Sharon  case. 
At  the  general  election  in  November.  1890.  he 
ran  on  the  Republican  ticket  for  Superior 
Judge,  but  was  defeated. 

He  died  on  the  29th  of  August.  1892.  at  San 
Francisco,  aged  76  years. 


RUFUS  A.  LOCKWOOD. 

The  true  name  of  Rufus  A.  Lock  wood  was 
Jonathan  A.  Jessup.  Lockwood  was  his 
mother's  family  name.  He  was  perhaps  the 
strangest  character  in  all  of  our  history.  He 
was  born  in  Stamford,  Connecticut,  in  181 1. 
At  eighteen  he  entered  Yale  College.  For 
about  one  year  he  was  diligent  in  his  studies 
and  advanced  r.-ipidly.  Suddenly — a  step  in 
keeping  with  liis  .nfler  life — he  left  ci)llege 
and  entered  as  a  sailor  on  a  Ihiited  Stales 
man-of-war.  The  vessel  made  a  short  voyage 
to  the  Bahamas,  and  returned  to  New  York 
Citv.  There  he  deserted  and  there  he  first 
took  up  the  n.inu'  of  Lockwood.  On  the  re- 
turn voyage  he  had  determined  to  desert,  if 
possible,    because    one    of    liis    messmates    had 


I'een  lied  up  and  tloggcd.  Working  his  way 
to  Buffalo,  on  the  Erie  Canal,  he  proceeded 
by  schooner  to  Chicago. 

I  his  was  in   1830,  and  Lockwood  was  nine- 
teen.     He   had   no   money   and   knew   nobody. 
Meeting    a    farmer    from    Tippecanoe    county, 
Indiana,    he   was   engaged    to   teach    school   at 
Romney,  a  hamlet  in  that  county.     He  taught 
at    Romney    and    Rob    Roy.    an    adjacent    vil- 
lage, alternately,  for  about  one  year,  and  de- 
voted his  time  out  of  school  to  the  study  of 
medicine.      He   had    some    slight    trouble    with 
his   patrons   at    Rob   Roy.   and   without   notice 
10   any   one.   started   one   bitter   cold   day  over 
an    eight-mile    stretch    of    snow    for    Romney. 
where  he  arrived  with  hands  and  feet  frozen. 
When    he    got    well    he    resumed    teaching    at 
Romney.    and    joined    a    debating    society,    in 
which   his   argumentative   powers   first   excited 
remark.      Now,    also,    he    commenced    to   read 
law.     It   is   said  that   he  almost   literally  com- 
mitted to  memory  the  text  of  Blackstone.  He 
removed    to    Crawfordsville.    opened    a    school 
and  continued  his   law  studies.     Here  he  had 
another   quarrel   with   the  principal   of  a   rival 
school.     It  didn't  lead  to  much,  being  a  news- 
paper  controversy.      He   was   admitted   to   the 
l)ar   by    the    Circuit    Court    of   Crawfordsville. 
and,   though   penniless,   got  married  and  went 
to   Thorntown,   Boone  county,  to  practice.   He 
was   soon   sued   by   his   landlord,   and   pleaded 
as    a    setoff   an    unpaid    tuition    bill.      He   was 
his  own  lawyer  and  lost  his  case.     He  wanted 
to  appeal,  but  could  not  give  a  bond.     He  and 
his    bride    soon    found    themselves    without    a 
bed,  that  useful  article  of  their  scanty  house- 
hold goods   having  been   sold   by   the   consta- 
ble  under   execution   issued   on   his   landlord's 
judgment.     "I  never  knew  how  my  wife  lived 
at    Thorntown."    he    said    many    years    after- 
ward. "I  know  how  1  lived  on  potatoes  roasted 
in  the  ashes." 

He  lost  his  second  case.  also,  but  having 
for  a  client  somebody  else  this  time,  an  appeal 
bond  was  filed  and  Lockwood  made  his  first 
appearance  in  the  Supreme  Court  of  Indiana. 
Being  first  examiiuil  ,ind  admitted  to  practice 
in  that  tril)unal.  he  .iriiued  his  cause  in  a 
style  so  masterly  as  to  win  the  encomiums  of 
the  bench.  (See  Polk  el  al.  vs.  Slocum.  3 
I'.l.ickt'ord.  4JI.)  F.tii  for  several  years  he 
struggled  on.  with  liille  business.  His  home, 
too.  if  such  il  could  be  called,  was  unhappy. 
His  only  pleasure  was  in   study. 

In  1S36,  Albert  S.  White,  a  prominent  law- 
yer of   Lafayette.   Indiana,  offered  him  a  part- 


578 


History  of  the  Bench  and  Bar  of  California. 


nership.  which  he  accepted.  Jn  that  year  he 
made  a  remarkable  and  successful  defense  of 
T.  W.  II.  Frank,  a  young  editor  who  had 
killed  Jcjhn  Woods,  a  well-known  merchant. 
'Ihe  slayer  and  the  deceased  belonged  to  op- 
posing political  parties.  They  were  strong 
partisans,  and  party  lines  were  sharply  drawn 
in  the  community.  The  difficulty  grew  out 
of  a  wager  won  by  Frank.  It  seemed  impos- 
sible to  get  a  jury  that  would  agree.  Lock- 
wood  made  an  argument  of  nine  hours,  which 
has  been  pronounced  "the  best  jury  speech 
ever  made  on  this  continent — or  any  other." 
He  secured  an  acquittal,  and  won  great  pop- 
ularity. He  was  now  only  twenty-six  years 
old.  and  his  partner  being  elected  to  con- 
gress, he  for  the  first  time  since  he  ran  away 
from  college,  took  a  long  breath  in  the  con- 
solation of  success. 

In  1842.  a  business  depression,  such  as  every 
now  and  then  visits  every  community,  came 
upon  his  section.  He  had  invested  in  lands, 
which  now  would  not  sell  for  enough  to  pay 
his  debts.  He  scraped  together  what  money 
he  could,  gave  all  to  his  creditors,  except  a 
few  hundred  dollars,  placed  his  son  in  a  .school 
in  Vincennes.  and  struck  out  for  "parts  un- 
known." not  even  letting  his  family  know  his 
purpose.  He  went  to  the  City  of  Mexico, 
where  he  was  a  stranger  in  a  strange  land. 
He  studied  the  civil  law  and  the  Spanish  lan- 
guage, was  taken  sick,  could  get  nothing  to  do. 
and  after  a  stay  of  a  few  months,  went  to 
Vera  Cruz,  which  he  reached  with  $2  in  his 
pocket.  He  risked  this  little  balance  at  monte. 
and  won  $50,  with  which  he  went  to  New 
Orleans,  thence  to  Natchitoches.  There  he 
resumed  his  true  name  of  Jessup  and  con- 
tinued the  study  of  the  civil  law,  which  was 
in  vogue  in  that  state,  and  the  Louisiana  code. 
After  a  year  he  went  to  New  Orleans  and  ap- 
plied for  admission  to  practice  in  the  higher 
courts  of  Louisiana.  He  passed  the  examina- 
tion, but  just  as  the  oath  was  about  to  be  ad- 
ministered to  him  he  saw  in  the  courtroom  the 
man  who  had  sued  him  and  caused  his  bed  to 
be  sold  under  execution.  Before  he  left  In- 
dana  he  had  availed  himself  of  several  oppor- 
tunities to  wreak  his  vengeance  upon  this  man, 
and  now.  fearing  that  his  old  enemy  would 
expose  his  change  of  name,  he  left  the  room 
without  taking  the  attorney's  oath.  A  few 
days  later  a  prominent  Indiana  lawyer  met 
him  on  the  street  in  New  Orleans,  very  in- 
elegantly clad.  He  asked  a  loan  of  $20  to 
redeem  his  trunk.    The  Indianan  proffered  $10 


— all  he  had  on  hand.  Lockwood  declined  it, 
saying  it  was  of  no  consequence.  The  same 
day  he  enlisted  as  a  United  States  soldier,  re- 
ceived $20  bounty,  and  was  sent  into  Arkan- 
sas. Edward  A.  Hannegan,  then  United  States 
senator  from  Indiana,  who  had  formerly 
known  Lockwood,  heard  of  the  latter's  latest 
freak,  and  sent  him  an  order  of  discharge, 
signed  by  President  Tyler.  He  also  remitted 
1(1  liini  $100,  and  urged  him  to  go  home  to  his 
family.  Lockwood  did  .so.  and  resumed  law 
practice  at  Lafayette.  His  lands  had  been 
making  money  for  him  in  his  long  absence 
by  largely  appreciating  in  value,  and  he  soon 
paid  ofif  the  balance  of  debt  he  had  left  be- 
hind three  years  before. 

In  1849  Lockwood  lost  an  important  will 
contest.  He  thoroughly  believed  that  the  al- 
leged will  should  not  be  admitted  to  probate, 
and.  moreover,  being  a  strong  hater,  and 
one  of  tiie  principal  legatees  named  in  the 
proposed  document,  having  provoked  his 
wratli  some  time  before,  he  went  into  the 
trial  with  a  determination  unparalleled.  He 
addressed  the  jury  during  the  whole  session 
of  the  court  for  three  days.  The  verdict  was 
against  him,  and  when  he  heard  it,  he  struck 
liis  fist  violently  on  the  table,  declared  that 
he  would  never  try  another  case  in  that  court, 
and  left  the   room   in  great   excitement. 

Then  lie  turned  his  e\'es  toward  California. 
A  friend.  Air.  E.  L.  Beard,  was  also  look- 
ing this  way.  The  two  came — Beard  through 
Mexico ;  Lockwood  around  the  Horn.  It 
would  seem  that  when  Lockwood  first  thought 
of  emigrating  to  California  the  disgust  which 
he  felt  over  his  defeat,  just  mentioned,  made 
him  despise  his  profession;  for,  instead  of 
l)acking  his  law  l)ooks,  he  determined  to  bring 
a  large  stock  of  iicjuor  in  small  I)ottlcs  and 
retail  it  to  miners.  He  abandoned  this  no- 
tion, however.  His  strange  record  has  not 
this  blemish.  Beard  settled  at  a  fine  spot, 
the  Mission  San  Jose,  in  the  southern  end  of 
.\lanieda    county. 

He  had  established  a  comfortable  home,  and 
Lockwood  found  him  there.  Lockwood  looked 
as  if  he  needed  hospitable  shelter.  He  was 
dirty,  tired,  hungry,  wet  and  sick.  He  had 
got  lost  on  the  Alameda  nuid  flats,  and  had 
tramped  all   night  long. 

Lockwood  went  to  San  Francisco.  On  the 
ocean  voyage  he  had  studied  medicine,  and 
tried  to  forget  the  law.  He  did  not,  however, 
ask  for  a  diploma.  He  treated  himself  at  his 
friend  Beard's  house,  the  day  he  arrived  there. 


History  of  the  Bench  and  Bar  of  California. 


579 


He  uied  himself,  and  found  relief,  after  a 
regular  physician  had  told  him  that  if  he  did 
so.  in  his  then  condition,  it  would  be  certain 
death. 

In  San  Francisco  he  went  into  the  law  of- 
fice of  the  eccentric  Horace  Hawes,  and  asked 
for  a  clerkship.  He  was  thirty-nine  years 
old.  a  great  genius  of  the  law,  and  he  wanted 
a  clerkship !  He  got  it.  Hawes  examined 
him.  but  not  very  exhaustively — he  soon  made 
a  discovery.  It  was  agreed  that  Lockwood 
should  perform  the  double  office  of  clerk  and 
janitor — time,  six  months;  terms,  ten  dollars 
per  day.  to  be  paid  daily.  Those  were  flush 
times,  be  it  remembered.  Here  was  an  as- 
sociation to  make  man  wonder,  if  not  weep. 
Eccentricity  was  the  only  peculiarity  common 
to  both.  Hawes  was  rich ;  Lockwood  was 
in  rags.  Hawes  was  supremely  thoughtful  of 
self;  Lockwood  supremely  negligent.  Hawes 
was  an  iceberg;  Lockwood  a  pillar  of  fire. 

Lockwood  gambled  ofif  his  daily  wages,  but 
faithfully  performed  his  duties,  and  when 
six  months  were  passed,  he  was  offered  a 
partnership.  He  refused  promptly,  and,  in 
language  not  heard  before  by  his  employer, 
he  expressed  his  disgust  with  his  experience  in 
that  office.  Bv  this  time  Lockwood  had  come 
to  be  well  known  to  the  bar,  and  concluded 
to  re-enter  the  ranks.  He  soon  revealed  him- 
self. In  the  summer  of  1851  he  formed  a  part- 
nership with  Frank  Tilford  and  Edmund  Ran- 
dolph. Randolph  was  from  Virginia,  by  way 
of  Louisiana.  Tilford  came  direct  from  Ken- 
tucky. They  were  able  lawyers  and  knightly 
men. 

These  three  men  made  as  powerful  an  alli- 
ance as  was  ever  effected  at  that  bar.  It  was 
the  leading  firm  for  a  time,  but  its  time  was 
short.  While  it  held  together,  it  brought  the 
most  important  suit  instituted  in  the  State 
for  many  year.s — Metcalf  vs.  Argenti  and  oth- 
ers. The  defendants  were  members  of  the 
Vigilance  Committee  of  1851.  and,  deputed 
by  that  body,  had  searched  the  premises  of 
the  plaintiff.  The  latter  asked  $50,000  dam- 
ages. The  legality  and  propriety  of  the  organ- 
ization and  acts  of  the  committee  were  in- 
volved, and  as  the  vast  majority  of  the  citizens 
either  belonged  to  or  sympathized  with  the 
committee,  the  trial  of  this  cause  was  watched 
with   universal   interest. 

The  first  trial  of  the  case  was  commenced 
on  Saturday,  August  15,  1851.  On  Tuesday 
the  trial  was  interrupted  and  suspended  by 
the  tumult  consequent  on  the  rescue  of  Whit- 


taker  and  ]\IcKenzie  by  the  Governor  and 
sheriff  from  the  Vigilance  Committee,  which 
afterwards  retook  the  men  and  hanged  them. 
The  evidence  was  closed  on  Thursday  even- 
ing, and  on  Friday  the  jury  was  addressed  by 
Mr.  Randolph  for  the  plaintiff,  and  Isaac  E. 
Holmes  for  the  defendants.  On  Saturday 
morning,  August  2^,  Lockwood  closed  the  ar- 
gument for  the  plaintiff  in  a  speech  of  four 
hours.  The  jury  disagreed,  as  they  also  did 
upon  a  second  trial. 

At  the  close  of  this  short  partnership  with 
Tilford  and  Randolph,  which  he  abruptly  ter- 
minated, Lockwood  took  one  of  the  strangest 
steps  of  his  strange  life.  Just  as  he  had  put 
himself  at  the  head  of  the  profession  here, 
and  his  fame  had  spread  over  the  State,  he 
walked  out  of  the  law  office  and  went  to  the 
water  front,  where  for  several  weeks  he 
worked  as  a  longshoreman.  A  client  who 
needed  his  professional  service  persuaded  him 
to  quit  this  new  emploj^ment,  Lockwood  in- 
sisting that  his  fee  should  be  in  the  shape 
of  daily  wages.  Shortly  thereafter  he  became 
the  regular  counsel  for  the  great  banking  and 
real  estate  firm  of  Palmer,  Cook  &  Co.,  and 
obtained  a  large  practice.  His  receipts  for 
a  j'ear  or  more  were  very  large,  but  they  went 
to  the  gambling  table.  It  is  said,  however, 
that  about  this  time  he  sent  ten  thousand  dol- 
lars to  Senator  Hannegan  of  Indiana,  in  re- 
turn for  the  one  hundred  dollars  that  gen- 
tieinan  presented  him  a  few  years  before,  when 
he  had  been  discharged  from  the  army. 

In  the  summer  of  1853  Lockwood  took  a 
new  departure — for  Australia.  He  knew  no 
one  there,  and  did  not  take  a  dollar  with 
him.  He  remained  about  two  years.  He  could 
not  practice  his  profession  because  of  a  law 
requiring  seven  years'  residence.  He  acted  as 
a  lawyer's  clerk,  a  merchant's  bookkeeper, 
and  a  herder  of.  sheep !  From  the  first  named 
occupation  he  was  discharged  for  not  copying 
into  a  Ijrief  a  paragraph  which  he  said  was  not 
law. 

On  his  return  here  in  1855  he  said  his  trip 
to  .\ustralia  was  the  sanest  act  of  his  life; 
tliat  he  wanted  to  do  some  great  penance  for 
his  sins  and  follies  and  to  put  a  great  gulf 
Iietwecn  him  and  the  past.  Indeed,  a  change 
for  the  better  was  noticeable  in  him.  He 
stopped  the  habit  of  gambling,  and  was  calmer 
in  thought  and  manner.  His  high  sense  of 
professional  honor  was  strikingly  illustrated 
by  his  refusal  to  take  a  large  fee  to  defend 
tile    famous    "Peter    Smith    Titles."    owing   to 


580 


History  of  the  Bench  and  Bar  of  California. 


the  fact  that  he  had  once  expressed  the  opin- 
io .   that  these   titles  were  invahd. 

In  the  fall  of  1855  Lockwood  went  to  Wash- 
inton,  and  in  December  of  that  year  he  made 
a  long  argument  in  the  United  States  Su- 
preme Court  in  the  case  of  Field  vs.  Sea- 
bury. 

The  facts  for  this  sketch  are  found  in  a 
most  interesting  and  finely  written  notice  of 
Lockwood,  contributed  by  Hon.  Newton  Booth 
to  the  Overland  Monthly  in  1870,  and  copied 
by  the  Albany  (N.  Y.)  Lazv  Journal.  Therein 
is  presented  this  picture  of  Lockwood's  per- 
sonal appearance  in   1855 : 

"Height,  above  medium;  figure,  large  and 
ungainly  ;  movements,  awkward ;  complexion, 
sallow  and  tobacco-smoked ;  eyes,  dark  and 
deep,  with  dilating  pupils  edged  with  yellow — 
cat  eyes  in  the  dark;  hair,  dark  brown,  sprin- 
kled with  gray ;  nead.  feet  and  hands,  large — 
left  hand  web-fingered;  features  not  irregu- 
lar, but  without  play  or  mobility,  with  a  fixed 
expression  of  weariness ;  dress,  careless,  al- 
most slovenly ;  age,  fifty  years,  bearing  the  bur- 
den of  fourscore. 

This  view  of  Lockwood  in  the  argument  of 
the  case  of  Field  vs.  Seabury,  in  the  United 
States  Supreme  Court,  is  from  the  article  re- 
ferred to,  which  was  written  about  two  years 
before  the  author  became  Governor  of  Califor- 
nia. 

"More  tlian  the  usual  number  of  spectators 
were  present,  and  there  was  something  more 
than  curiosity  to  hear  this  lawyer,  who  had 
often  been  heard  of,  but  never  before  heard  in 
that  court.  The  consciousness  of  this  curiosity 
and  expectation  embarrassed  him  in  the  open- 
ing of  his  speech,  but  his  mind  fairly  in  mo- 
tion soon  worked  itself  free  and  his  phleg- 
matic temperament  glowed  to  its  core  with 
flameless  heat.  For  two  hours  he  held  the 
undivided  attention  of  the  court  in  an  argu- 
ment that  was  pure  law.  He  had  that  pre- 
cision of  statement,  skill  and  nicety  in  the 
handling  of  legal  terms,  wliicli  modulate  the 
very  tones  of  the  voice,  and  by  which  lawyers 
instinctively  measure  a  lawyer — that  readiness 
which  reveals  intellectual  training  that  has 
become  a  second  nature — that  self-contained 
confidence  that  is  based  on  the  broadest  prep- 
aration— that  logical  arrangement  which  gives 
the  assurance  that  back  of  every  proposition  is 
a  solid  column  to  support  it  if  attacked — and 
that  strength  and  symmetry  of  expression 
which  carry  the  conviction  that  behind  utter- 
ance   there    is    a    fullness    of    knowledge    that 


floods  every  sentence  with  meaning,  and  an 
unconscious  reserve  of  power  which  gives  to 
every  word  a  vital   force." 

On  the  steamship  Central  America,  in  the 
fall  of  1857,  his  troubled  life  was  ended.  He 
was  going  from  San  Francisco  to  New  York. 
A  friend  in  San  Francisco  who  knew  his  dis- 
order and  who  believed  the  proposed  trip 
was  suggested  by  eccentricity,  rather  than  by 
the  demands  of  business  or  health,  urged 
him  not  to  go.  "I  will  stay  if  you  insist," 
he  answered,  "but  I  feel  that  I  shall  go  mad  if 
I  do."  When  the  tempest  was  toying  with  the 
vessel,  and  the  passengers  were  at  the  pumps, 
he.  after  doing  duty  some  time,  stopped  and 
went  up  to  the  cabin.  An  officer  ordered  him 
back.  He  replied  :  "Sir,  I  will  work  no  more." 
He  died  as  he  had  lived,  an  enigma.  Enter- 
ing his  stateroom  he  closed  the  door  upon  the 
scene,  shut  his  eyes  upon  the  light  of  life, 
and  went  down  with  the  wreck. 


CREED  HAYMOND. 


Mr.  Haymond  was  born  in  Beverly,  Ran- 
dolph county,  Virginia  (now  West  Virginia), 
April  22,  1836.  He  came  to  California  in 
1852. 

The  Haymonds  are  extremely  few  in  num- 
ber. Though  one  ancestor  is  reported  to  have 
had  thirty-one  children,  twenty-eight  of  whom 
lived  to  be  married,  they  were  on  the  mater- 
nal side  of  the  family,  and  did  not  perpetuate 
the  name. 

Mr.  Haymond's  famil}-  on  both  sides  had  re- 
sided in  Virginia  since  long  before  the  Revo- 
lution, and  many  members  of  it  had  been 
prominent  in  her  political  afi^airs.  His  father, 
Hon.  W.  C.  Haymond,  was  distinguished  at 
the  bar.  and  tlirougli  him  the  son  was  inspired 
by  a  love  for  the  law  that  was  unusually  in- 
tense, receiving  his  first  impressions  imder 
very  peculiar  circumstances.  The  courts  of 
Virginia  were  in  those  days  itinerant — that  is 
to  say,  the  Circuit  Judge,  accompanied  by  the 
local  bar,  rode  from  town  to  town  to  hold 
court.  Mr.  Haymond's  father  rode  circuit 
with  the  rest,  always  taking  with  him  Creed, 
after  the  latter  had  reached  a  suitable  age. 
The  boy  rode  astride  of  the  saddle  in  front. 
This  was  before  young  Haymond  had  reached 
the  age  of  sixteen.  His  early  life  was,  there- 
fore, spent  in  an  'atmosphere  very  unlike  that 
which    surrounds    the    ordinary   boy. 

I'he  writer  often  heard  Mr.  Haymond  speak 
of  those  old  days,  of  the  uncommon  relations 


History  of  the  Bench  and  Bar  of  California. 


581 


existing  between  his  father  and  himself,  the 
rare  lessons  he  received  during  moments  of 
leisure,  when,  seated  upon  mother  earth,  they 
took  their  lunch  at  noon ;  of  the  long  rides 
between  broad  plantations,  down  dusty  roads, 
across  babbling  brooks,  sometimes  alone  with 
his  father,  sometimes  forming  a  part  of  a  gay 
cavalcade,  embracing  the  brains  and  wit  of  all 
the   country-side. 

Often,  on  a  rough-hewn  bench  in  the  primi- 
tive Virginia  court-room,  throughout  the  long 
summer  day  and  away  into  the  twilight,  when 
the  flickering  candle  was  brought  in  to  empha- 
size the  darkness,  the  lad  sat,  listening  in  boy- 
ish wonder  to  the  intellectual  contests  of  the 
great  men  of  his  county,  with  an  interest  that 
grew  with  his  own  growth.  Bare-foot  village 
lads,  drawn  by  curiosity  or  weary  with  play, 
peeping  into  the  court-room,  and  emboldened 
by  the  sight  of  one  as  young  as  they,  would 
sometimes  enter  and  sit  beside  the  slender, 
pale-faced  boy,  and,  staring  at  him,  wonder 
who  and  what  he  was ;  but  in  a  little  while — 
wearied  by  the  nice,  sharp  quillets  of  the  law — 
they  would  hurry  to  resume  their  sports,  leav- 
ing the  strange  boy  to  himself  again. 

This  experience  left  its  mark.  It  made  the 
young  student  manly,  self-reliant,  and  inde- 
pendent; gave  to  him  the  breadth  of  view  that 
characterized  him  as  a  man  ;  gave  to  his  physi- 
cal nature  bravery,  to  his  mental  nature  bold- 
ness of  thought. 

At  the  age  of  seventeen,  of  his  own  choice, 
he  left  his  Virginia  home  with  a  party  of 
friends,  boys  like  himself,  no  one  of  them 
being  over  twenty,  and  crossed  the  plains  to 
try  his  fortune  in  California.  They  traveled 
fast  for  those  days,  carrying  water  in  kegs 
and  looking  only  for  grass  for  their  animals ; 
but  it  seemed  like  a  strange  dream  to  go 
through  almost  the  same  region  long  after- 
wards, at  more  than  thirty  times  their  best 
speed  then. 

Soon  after  arriving  in  this  State,  in  1852, 
being  possessed  of  some  means,  he  engaged  in 
mining,  packing,  merchandising  and  ditching, 
on  a  large  scale,  in  the  northern  part  of  Sierra 
county.  For  a  year  and  a  half  he  carried 
Wells.  Fargo  &  Co.'s  mails.  Mr.  T.  H.  Merry, 
in  his  story  of  "Sandy's  Vindication,"  intro- 
duced Mr.  Raymond  under  the  name  of 
"Creath  Hatland,"  as  a  mail  rider  and  conduc- 
tor of  the  saddle  train,  "who  would  fight  at 
the  drop  of  the  hat,  so  that  no  one  ever  dared 
to  stop  the  train  or  roh  the  express  while  he 
was  in  charge." 


"The  finest  i)ody  of  men  ever  gathered  to- 
gether in  the  world's  history— men  for  the 
most  part  of  wealth,  social  standing,  educa- 
tion and  great  ability,"  was  Mr.  Raymond's 
opinion  of  his  old  associates  who  came  first  to 
the  mining  regions  of  California.  Time  only 
intensified  his  admiration  for  them,  and  while 
appreciating  the  genius  of  Bret  Rarte,  he  al- 
ways regretted  that  his  stories  of  California 
life  were  so  out  of  drawing,  and  said  that  the 
unfavorable  impression  of  Californians  which 
they  created  abroad  would  not  soon  be  effaced. 

He  continued  in  business  until  1859,  when 
he  entered  into  the  study  and  practice  of  the 
law  with  Ron.  James  A.  Johnson,  afterwards 
Lieutenant  Governor  of  this  State,  and  Judge 
Alexander  W.  Baldwin,  afterwards  United 
States  District  Judge  of  Nevada.  In  the  legal 
profession  his  upward  flight  was  remarkable, 
carrying  him  to  the  highest  point  then  achiev- 
able within  the  first  year  of  his  new  life.  The 
position  thus  early  gained  he  never  lost.  Ris 
reputation  widened  as  time  passed  by,  until  it 
became  more  than  national.  His  later  argu- 
ments, especially,  dealing  as  most  of  them  did 
with  the  broadest  questions  of  constitutional 
law,  engaged  the  study  of  lawyers  and  states- 
men in  every  part  of  the  world. 

Mr.  Raymond  was  for  a  long  time  Colonel 
of  the  First  Artillery  regiment.  National 
Guard  of  California.  He  was  Captain  of  the 
Sierra  Greys,  a  Sierra  county  militia  company, 
and  took  his  command  into  service  in  the 
spring  of  i860,  under  Colonel  Jack  Rays, 
against  the  Indians  of  Nevada,  after  the  Pyra- 
mid Lake  massacre.  In  this  campaign  against 
the  Indians,  Captain  Raymond  was  lightly 
wounded.  Two  severe  battles  were  fought; 
one  on  the  Truckee,  and  the  other  on  the  Car- 
son, below  Wadsworth.  This  broke  the  power 
of  Chief  W'inncnnicca. 

Mr.  Raymond  was  appointed  tide-land  com- 
missioner by  Governor  Raight,  to  settle  ques- 
tions as  to  the  tide  lands  of  San  Francisco, 
but  did  not  serve,  and  L.  L.  Bullock  was  ap- 
pointed in  his  stead.  Re  served  two  sessions 
in  the  State  senate,  being  elected  in  1875  from 
Sacramento  comity.  In  that  body  he  achieved 
(lislinctinu  ;is  ;i  speaker  and  worker.  Re  de- 
clined a  riMKiniination.  .ilti'i-  serving  four  years. 

In    1880  Mr.  Raymond  was  sent  to  the  Re- 
publican   National    Convention,    which    nomi 
natcd  Garfield. 

In  1881  began  a  new  phase  of  Mr.  Ray- 
mond's professional  career.  In  that  year  the 
Central     Pacific    Railroad    Company    tendered 


582 


History  of  the  Bench  and  Bar  of  California. 


liiin  tlic  position  of  associate  solicitor  of  that 
company. 

The  name  of  Haj'mond  will  always  be  linked 
to  that  of  the  Leland  Stanford.  Jr.,  University. 
He,  with  Governor  Stanford,  drew  the  act  and 
formulated  the  provisions  under  which  this 
university  was  to  be  founded  and  perpetuated, 
and  to  him  was  assigned  the  preparation  of  the 
Articles  of  Endowment  signed  by  Leland  Stan- 
ford and  his  wife,  whereby  their  immense  for- 
tune was  bequeathed  to  the  cause  of  educa- 
tion. 

Upon  his  promotion  to  the  position  of  gen- 
eral solicitor  of  the  Central  Pacific  Railroad. 
he  found  more  than  five  hundred  cases  pend- 
ing against  that  company — involving  in  the 
aggregate  millions  of  dollars.  Much  preju- 
dice existed  against  the  corporation  among 
the  people  of  the  State.  In  two  years  he  re- 
duced the  number  of  cases  to  thirty,  and 
wrought  a  great  change  in  public  sentiment 
toward  the  corporation.  All  claims  for  dam- 
ages were  thoroughly  tried  before  Mr.  Hay- 
mond.  and  impartially  judged  by  him,  almost 
before  a  claimant  was  permitted  to  sue. 

He  married  in  1872  Miss  Alice  Crawford,  an 
accomplished  and  beautiful  young  lady,  a  na- 
tive of  the  town  of  Auburn,  Placer  county, 
California,  who  during  her  life  shared  his  vic- 
tories and  achievements.  He  once  said  to  a 
friend  that  he  could  distinctly  remember  the 
ringing  of  bells  and  the  jollification  that  fol- 
lowed the  birth  of  his  destined  wife,  one  of 
the  first  children  born  in  Auburn,  for  the  birth 
of  a  baby  was  an  important  event  in  those  days 
and  in  that  region.  She  died  at  San  Fran- 
cisco in  November,  1887,  leaving  him  witliout 
issue.     Mr.  Haymond  died  in  1893. 


J.\.\IES  W.  COFFROTH. 

"Tuolumne's  Favorite  Son"  was  born  in 
Franklin  county,  Pennsylvania,  in  the  year 
1829.  His  great-grandfather  emigrated  to  that 
state  from  Germany,  where  the  name  was 
Kaufrath.  James  W.  came  honestly  by  his 
predilection  for  politics,  his  father  having 
dabbled  in  the  pool  all  his  life.  The  old  man 
found  it  unprofitable,  although  he  won  the 
shrievalty  of  his  county  for  one  term.  He  was 
poor,  and  his  sons  had  to  commence  battling 
with  adversity  at  early  ages.  James,  with 
little  learning,  went  to  Philadelphia  to  make 
himself  a  printer.  He  learned  the  printer's 
trade  and  followed  it  for  several  years,  de- 
voting  his    spare   hours   to   profitable   reading. 


He  made  many  contributions,  prose  and  verse, 
to  the  press,  the  first  appearing  in  his  seven- 
teenth year.     He  also  took  the  platform  early. 

He  set  type  all  day,  and  at  night  he  was  in 
some  lodge  or  at  some  political  meeting.  He 
did  most  of  the  talking — both  because  he  liked 
it  and  because  his  style  was  so  happy  that  he 
could  not  get  out  of  it.  His  presence  was 
sunshine,  and  his  speech  full  of  charm.  In 
1846  he  became  associate  editor  of  the  Spirit 
of  the  Times.  In  February,  1850,  he  purchased 
a  half  interest  in  that  journal,  and  became 
chief  editor.  In  the  same  year  James  W. 
Cofifroth  &  Co.  issued  The  Sunday  Paper,  the 
second  Sunday  journal  established  in  Phila- 
delphia. In  the  first  issue  Mr.  Cofifroth  called 
the  attention  of  religious  people  to  the  fact 
tliat  the  only  Sunda}'  work  done  on  a  Sunday 
paper  is  the  simple  distribution  of  the  paper; 
whereas,  on  a  Monday  paper  all  the  work  but 
tlie   distribution   is   done  on   Sunday. 

True  to  his  German  extraction,  the  young 
man  was  full  of  sentiment.  If  there  is  "Noth- 
ing half  so  sweet  in  life  as  love's  young 
dream."  he  must  have  had  many  moments  of 
supreme  happiness  in  Philadelphia.  While  his 
poetical  efifusions  embraced  such  themes  as 
death,  and  heaven,  and  hope,  they  were  mostly 
erotic.  He  worshiped  the  beautiful,  especially 
as  revealed  in  woman. 

One  critic  observed  that  young  Cofifroth 
was  "the  ugliest  man  and  the  best  judge  of 
beauty  in  Philadelphia."  The  antithesis  was 
not  wholly  justified.  CofTroth,  while  not  hand- 
some, was  far  from  l)eing  ugly.  His  genial 
spirit  constantly  lit  up  his  face,  and,  aided  by 
his  winning  speech  and  bearing,  attracted  men 
and  women  alike. 

Late  in  1850  Mr.  Cofifroth  sold  out  his  in- 
terest in  his  paper  and  struck  out  westward. 

He  made  a  short  stay  in  Indiana,  and  an- 
other in  Texas.  In  Indiana  he  had  a  brother, 
John  Randolph  Cofifroth,  a  successful  lawyer 
and  popular  speaker,  and  who  attained  later 
to  the  Supreme  bench  of  that  state.  Cofifroth 
arrived  in  California  in  1851.  and  located  in 
.Sonora.  Tuolumne  county.  He  came  with  a 
view  to  work  in  the  mines,  and  settled  at  a 
most  inviting  spot  in  the  midst  of  stirring 
scenes.  He  was  but  twenty-two  years  old.  In 
June,  1851,  he  is  found  in  the  editorial  room 
of  the  Sonora  Herald,  having  for  a  few  weeks 
previous  set  type  on  that  paper. 

While  connected  with  the  Herald  Mr.  Cof- 
froth  resumed  writing  verses,  which  appeared 
from  time  to  time  in  that  paper.     He  delivered 


History  of  the  Bench  and  Bar  of  California. 


583 


the  Fourth  of  July  oration  in  Sonora,  in  1851. 
It  was  a  happy  effort,  and  the  miners  gathered 
in  a  large  mass  from  the  country  round  about. 
He  amused,  entertained  and  thrilled  thcni,  and 
that  hour  he  became  what  he  was  ever  after- 
wards called — "Tuolumne's  Favorite  Son." 

Just  about  that  time  a  certain  ditch  mo- 
nopoly, which  supplied  all  the  miners  of  that 
region  with  water,  had  become  so  unpopular, 
on  account  of  extortionate  charges,  that  the 
victims  of  its  rapacity  were  compelled  to  or- 
ganize for  self-protection.  Coffroth  joined 
the  movement  and  fired  it  with  his  own  en- 
thusiasm. It  was  resolved  to  make  an  oppo- 
sition ditch.  Nearl}^  everybody  subscribed, 
and  scrip  was  issued  to  the  subscribers,  to  be 
called  in  and  paid  for  out  of  the  receipts  from 
the  ditch.  It  took  several  thousand  men  a 
month  or  so  to  complete  the  work.  Coffroth's 
was  the  animating,  all-pervading  spirit.  He 
worked  himself,  shovel  in  hand,  but  did  more 
effective  service  by  his  eloquent  speeches,  his 
stories  and  witticisms,  which  kept  the  army 
of  workmen  in  good  humor  until  their  task 
was   done. 

When  the  Democratic  state  convention  met 
in  the  fall  of  1851,  Mr.  Coffroth  was  a  dele- 
gate froin  Tuolumne  county,  the  youngest 
member  of  the  body.  He  looked  as  mature 
as  some  delegates  at  thirty,  being  six  feet 
high,  with  broad  shoulders  and  massive  head 
and  frame.  The  ticket  nominated  by  that  con- 
vention was  elected,  and  at  the  same  time  Mr. 
Coffroth  was  chosen  by  his  county  to  repre- 
sent  it   in   the   assembly. 

Coffroth  was  State  senator  from  Tuolumne 
at  the  sessions  of  1853,  1854,  1856,  and  1857. 
His  last  election  was  by  the  Native  Ameri- 
can or  Knownothing  party.  He  was  leader 
in  the  councils  of  that  party.  The  Know- 
nothing  State  convention  met  in  Sacramento 
in  1855  to  nominate  State  officers.  It  was  a 
splendid  body  of  men.  Coffroth  was  the  most 
conspicuous  and  trusted  leader.  He  was  only 
twenty-six  years  old,  but  he  had  made  him- 
self prominent  in  the  senate.  He  was  known 
throughout  the  State,  and  he  was  the  idol  of 
his  own  county.  The  nomination  for  Governor 
was  tendered  him  with  one  spontaneous  ac- 
claim. He  declined.  He  felt  certain  that  the 
new  party  would  sweep  the  State,  as  it  did. 
He  was  certain  that  it  would  have  the  legisla- 
ture, as  it  did.  He  was  confident  that  he 
would  be  sent  to  the  United  States  senate,  not 
at  that  session,  because  he  was  not  old  enough, 
but  later,  and  he  reasoned  that  he  would  have 


more  strength  in  his  fight  for  the  senate  if 
he  declined  the  Governorship.  He  lost  both 
places. 

Had  he  accepted  the  nomination  tendered 
him  his  name  would  be  enrolled  on  the  list  of 
our  Chief  Magistrates,  for  Hon.  J.  Neely  John- 
son, who  was  nominated,  was  elected  by  5,000 
majority. 

The  end  of  this  interesting  man  came  sud- 
denly, and  too  soon,  but  it  is  pleasant  to  record 
that  it  was  free  from  pain.  At  a  quarter  to 
nine  o'clock,  on  the  morning  of  October  9, 
1872,  at  his  residence  in  Sacramento,  while 
seated  on  a  sofa,  at  a  front  window,  await- 
ing a  street  car  to  talvc  him  to  his  office,  he 
fell  to  the  floor  and  expired  instantly.  The 
capital  city  mourned  as  it  had  rarely  done, 
and  all  the  people  bowed  around  his  grave. 
At  the  bar  meeting,  besides  the  speech  of  his 
fellow-partisan.  General  Jo  Hamilton,  his  old 
political  foes,  but  steadfast  friends,  Judge  T. 
B.  McFarland,  Judge  Samuel  Cross  and  Hon. 
D.  W.  Welty,  spoke  with  deep  feeling.  Gen- 
eral Hamilton  declared :  "If  I  were  in  a 
position  where  I  needed  the  cool,  clear,  care- 
ful judgment  of  one  who  would  protect  my 
honor  and  keep  me  to  duty ;  if  I  wanted  a 
man  to  stand  by  me  in  a  strong,  stern  strug- 
gle that  called  for  manhood  and  intellect,  and 
true  friendship,  to  James  W.  Coffroth  would 
I  have  gone,  above  all  men." 

"He  was  the  most  pleasant  man  I  ever  met," 
said  Judge  McFarland;  "let  us  resolve  that 
his  memory  shall  not  perish." 

"He  never  stopped  to  speculate  out  of  his 
misfortunes,"  said  Judge  Cross;  "he  scorned 
to  do  it.  In  many  instances  I  knew  he  could 
have  done  it,  but  he  never  did.  I  knew  his 
personal  worth,  and  for  this  more  than  once 
I  voted  for  him  against  my  party  candidate." 

"He  was  a  sound  lawyer,  a  close  reasoner, 
a  good  man,"  said  Mr.  Welty.  "I  have  ob- 
served his  character  and  career;  the  whole 
Pacific  coast  knew  him  :  he  was  one  of  the 
strongest   men  of  our  nation." 

Expressions  of  tender  eloquence  like  these 
fell  from  the  lips  of  all  classes  of  men,  from 
Portland  to  San  Diego.  Known  so  well  and 
widely,    he    was   bitterly    lamented   by   a   great 

penpK'. 


lOHN  R.  TARBOE. 


John  Rodolpli  Jarhoe  was  born  at  Ellicott's 
Mills,  in  Anne  Arundel  county,  Maryland,  on 
the  i6th  day  of  February,  1836,  and  died  in 
the  city  of   San   Francisco,   California,  on  the 


584 


History  of  the  Bencli  and  Bar  of  California. 


4th  day  of  July.  1893.  aged  57  years.  4  months 
and  18  days.  He  was  the  eldest  of  a  family 
consisting  of  four  sons  and  four  daughters. 
As  the  eldest  son  and  in  accordance  with  the 
time-honored  family  tradition,  he  inherited  his 
father's  and  forefather's  Christian  name  of 
John  Rodolph,  likewise  inheriting  an  exceed- 
ingly delicate,  if  not  fragile  physique  to  the 
extent  that  in  his  boyhood  years  he  was  fre- 
quently, and  at  times  for  protracted  periods 
confined  to  his  room,  often  bedridden  :  this  in- 
firmity, however,  in  no  wise  was  permitted 
by  him  to  serve  as  a  damper  to  his  love  of 
study,  or  an  impediment  to  the  acquisition  of 
knowledge,  the  desire  for  which  had  become 
manifest  in  him  to  an  unusual  degree  at  a  very 
early  age ;  during  these  critical  years  of  his 
earlier  life,  his  studies  were  under  the  super- 
vision of.  and  at  times  conducted  by  his  father, 
who  at  this  time  and  for  many  years  prior 
and  subsequent  was  the  principal  of  one  of 
the  leading  educational  institutions  for  young 
ladies  in  the  United  States,  known  as  the 
Baltimore  Collegiate  Institute,  located  in  Bal- 
timore. 

Having  mastered  the  branches  of  studies 
requisite  therefor,  Jarboe  at  an  early  age  was 
n^airiculated  a  student  of  Yale  College,  from 
which  institution  of  learning  he  graduated 
sixth  in  a  numerous  class  early  in  the  year 
1855.  His  record  in  mathematics  and  the  study 
of  cognate  subjects  while  attending  Yale  was 
a  brilliant  one.  attracting  the  attention  and 
commanding  the  respect  of  the  faculty  of  that 
instittition  to  such  an  extent  that  upon  his 
graduation,  two  positions  were  offered  him. 
one  that  of  tutor  in  mathematics  with  the  view 
of  his  subsequently  becoming  professor  of  that 
branch  of  science  in  the  very  university  where 
he  bad  so  distinguished  himself,  and  the  other 
as  a  member  of  the  mathematical  corps  of 
Dr.  Kane's  farnous  North  Pole  expedition,  at 
that  time  making  preparations  for  its  departure 
to  the  Arctic  regions ;  tempting  and  fascinat- 
ing as  both  of  these  offers  were  to  a  mind 
apparently  so  felicitously  endowed  as  his  was 
for  either,  yet  after  mature  deliberation  and 
for  potent  reasons,  both  w-ere  declined,  and 
after  receiving  his  diploma  from  his  Alma 
Mater,  and  spending  a  few  months  at  his  home 
in  Baltimore,  early  in  the  year  1856  Jarboe 
turned  his  steps  w'here  his  thoughts  had  al- 
ready preceded  him,  to  the  then  young  State 
of  California,  the  psychical  magnet  which  had 
already  attracted,  and  was  still  attracting  so 
many  of  the  young,  the  enterprising  and  the 
ambitious  to  its   shores  to  be  colaborers  and 


architects  in  the  building  up  of  the  future  em- 
pire on  the  Pacific  Slope,  from  whose  hith- 
erto unexplored  mountain  fastnesses  there  had 
then  but  recently  gushed  forth  a  generous  vi- 
talizing golden  stream,  which  had  already 
(lowed  into  and  stimulated  every  artery  of  the 
world's  commerce,  fertilizing  every  avenue  of 
enterprise,  developed  energies  and  promoted 
activities  fraught  with  influences  affecting  the 
destinies  of  the  race,  and  causing  the  great 
heart  of  human  industries  to  throb  with  a 
pulsation  hitherto  unknown. 

Young  Jarboe's  object  in  coming  to  Cali- 
fornia was  the  establishment  of  an  educa- 
tional institute  somewhere  in  the  State  on  lines 
similar  to  the  one  in  Baltimore,  of  which  his 
father  was  principal,  and  in  which  capacity 
the  latter's  life's  services  had  been  devoted ;  in 
the  carrying  out  of  this  idea,  he  was  not  only 
encouraged  and  sustained  by  the  judgment 
of  his  father,  but  was  also  financially  backed 
by  his  purse,  the  latter  being  at  all  times  an 
enthusiast  in  all  matters  tending  to  promote 
educational  advancement.  Shortly  after  his 
arrival  in  California,  in  1856,  young  Jarboe 
settled  in  Alameda  county,  where  he  was  em- 
ploj'ed  as  a  teacher  in  one  of  the  private 
schools.  After  having  gone  so  far  as  to  se- 
lect and  purchase  a  tract  of  land  in  that  county 
upon  which  to  found  his  proposed  institute, 
he,  upon  more  mature  judgment,  became  con- 
vinced that  owing  to  the  conditions  then  ex- 
isting and  the  paucity  of  population,  the  build- 
ing and  establishment  of  such  an  institute 
upon  the  lines  projected  were  premature,  hence 
the  undertaking  was  reluctantly  abandoned, 
and  while  still  teaching  school,  and  with  the 
same  restless  assiduity  and  tireless  applica- 
tion which  had  hitherto  marked  his  career  in 
the  prosecution  of  his  previous  studies,  Jar- 
boe applied  himself  to  the  study  of  the  law, 
with  a  view  of  becoming  a  member  of  the  legal 
profession,  and  in  the  month  of  December. 
1858.  he  went  to  Sacramento,  the  capital  of 
the  State,  and  the  only  place  where  the  Su- 
preme Court  was  convened,  with  the  view 
of  "passing  his  examination"  before  that  au- 
gust tribunal,  preliminary  and  necessary  be- 
fore being  enrolled  as  a  member  of  the  pro- 
fession. In  those  days  the  usual,  if  not  the 
only,  course  pursued  in  cases  of  applicants 
for  admission,  who  had  not  the  certificate  of 
the  Supreme  Court  of  some  sister  state,  was 
upon  motion  made  and  an  examination  had, 
as  to  the  applicant's  qualifications ;  such  exam- 
inations being  made  by  a  committee  of  three 
members  of  the  bar  appointed  by  the  court 
at  the  time  of  the  making  of  the  motion.     At 


>*^5?*a».-A.,;) 


5^ 


John  R.  Jarboe 


History  of  the  Bench  and  Bar  of  California. 


587 


this  time  the  Sunreme  Court  of  the  State  con- 
sisted of  David  S.  Terry,  chief  justice,  with 
Stephen  J.  Field  and  Jo.  G.  Baldwin,  asso- 
ciate justices.  Upon  the  making  of  the  mo- 
tion for  young  Jarboe's  admission  in  open 
court,  the  chief  justice  appointed  three  of  the 
most  distinguished  leaders  of  the  bar  of  the 
State,  and  who  were  then  present  in  court 
to  conduct  the  examination,  consisting  of  Jo- 
seph P.  Hoge,  ex-Supreme  Judge  Solomon 
Heydenfeldt,  and  a  third  equally  prominent, 
whose  name  the  writer  cannot  now  recall ; 
whereupon  two  of  the  committee  withdrew 
with  the  applicant  into  an  office  adjoining 
the  court  room,  and  the  examination,  as  was 
customarj',  was  at  once  commenced.  The  two 
members  of  the  committee  had  asked  onlj 
some  four  or  five  questions  on  the  subject  of 
the  common  law  of  England,  and  the  law  of 
tenure  and  entailment  under  the  feudal  S3's- 
teni,  when  the  absent  member  of  the  commit- 
tee entered  the  room,  and,  after  listening  to 
some  one  or  two  more  of  the  questions  and 
answers,  interrupted  the  proceedings  by  say- 
ing, "What's  the  use  of  wasting  your  time 
by  asking  such  questions  and  showing  your 
ignorance  on  subjects  that  the  applicant  is 
fresher,  on  and  better  posted  than  both  of  you? 
Let  me  ask  him  some  pertinent  questions  as 
to  his  qualifications."  Then  turning  to  the  ap- 
plicant, "Mr.  Jarboe,"  he  asked,  "did  you  ever 
drink  a  brandy  punch?"  "Yes,  sir,"  replied 
Jarboe.  "Do  you  know  how  to  make  one  ?" 
asked  the  examiner.  "I  do  not,"  replied  Jar- 
boe, "but  I  have  discovered  that  they  make 
a  very  fine  one  at  the  'Sazerac'  (a  saloon 
across  the  street),  and  would  be  pleased  if 
the  learned  committee  would  join  me  in  test- 
ing one."  Which  invitation  was  at  once  ac- 
cepted and  acted  upon.  After  the  test,  the 
committee  having  found  the  applicant's  judg- 
ment to  be  good,  and  the  reputation  of  the 
"Sazerac"  deserved,  went  direct  to  the  court, 
still  in  session,  and  announced  to  that  tribunal 
"That,  after  having  subjected  Mr.  Jarboe  to 
a  most  thorough  examination,  and  being  en- 
tirely satisfied  as  to  his  qualifications,  your 
committee  unanimously  recommend  that  the 
motion  be  granted,  and  the  ai)plicant  be  per- 
mitted to  practice  at  the  bar,"  which  was  done, 
and  thus  (borrowing  the  language  of  the  cer- 
tificate issued  under  the  seal  of  the  court), 
"Be  it  remembered:  That  John  R.  Jarboe 
was  on  motion  first  made  to  the  court  in  this 
behalf,  and  after  examination,  had  duly  ad- 
mitted and  licensed  as  an  attorney  and  coun- 
sellor of  the  Supreme  Court  of  the  State  of 
California   on    the    I4tli    day   of   December,    in 


the  year  of  our  Lord  One  thousand  and  eight 
hundred  and  fifty-eight,  and  of  the  Independ- 
ence of  the  United  States  of  America  the 
eighty-second."  After  obtaining  his  license, 
Jarboe  moved  to  the  city  of  San  Francisco, 
and  at  once  entered  upon  the  practice  of  his 
chosen  profession.  Shortly  thereafter  entering 
the  office  of  the  then  prominent  firm  of  Shat- 
tuck,  Spencer  &  Reichert,  in  the  capacity  of 
an  assistant,  and  upon  the  withdrawal  of 
Judge  D.  O.  Shattuck,  the  senior  member, 
from  said  firm  in  the  year  1861,  the  firm  was 
reorganized  with  Jarboe  as  the  junior  member, 
under  the  name  and  style  of  Spencer,  Reich- 
ert &  Jarboe,  the  practice  of  which  during 
its  duration  was  one  of  the  most  extensive 
and  lucrative  in  San  Francisco.  By  the  with- 
drawal of  Reichert  in  the  year  1865  and  the 
sudden  death  of  Spencer  in  the  spring  of 
1866  the  labor  of  the  vast,  extensive  and  ever- 
growing business  of  the  firm  devolved  upon 
the  shoulders  of  the  junior  member,  to  which 
he  applied  himself  day  and  night,  with  an 
application  unceasing,  such  as  would  have 
overtaxed  a  stronger  frame  than  his.  Find- 
ing that  the  strain  on  his  physique  was  too 
great,  and  if  continued,  that  he  would  break 
down  beneath  it,  he,  in  the  fall  of  the  year 
1867,  associated  with  him  his  friend.  Ralph 
C.  Harrison,  under  the  firm  name  of  Jarboe 
&  Harrison,  than  which  few,  if  any,  firms 
were  thereafter  better  known  on  the  Pacific 
Coast.  The  firm's  name  continued  unchanged 
down  to  the  vear  1890,  except  during  the 
years  1870  and  1873,  when  C.  P.  Robinson  was 
the  junior  member,  and  the  years  1885  to 
1890.  when  W.  S.  Goodfellow  was  a  member 
of  the  firm.  From  1890  to  1893  Mr.  Jarboe's 
son,  Paul  R.,  was  associated  with  him.  the 
firm's  name  being  Jarboe  &  Jarboe,  and  so 
continuing  until  the  death  of  the  senior  mem- 
ber on  the  4th  of  July,  of  the  latter  year. 

For  the  first  fifteen  years  of  his  professional 
career,  Jarboe's  time  was  very  largely  occu- 
pied in  IJU'  prep.iration  and  conducting  of 
trial  cases  before  the  various  tribunals  of  the 
State,  both  court  and  jury  cases.  To  the  trial 
of  a  cause  he  went  fully  <'quipped.  thoroughly 
prei)ared.  and  once  in  the  court  room,  he  rel- 
ished (lie  keen  encounter  and  intellectual  con- 
tlict  with  his  brother  attorneys,  but  this  was 
not  to  last,  for  his  reputation  as  a  safe  coun- 
sellor ;ind  adviser  and  as  the  highest  and  best 
;uilIioi-ity  u|)on  llie  (|uestions  affecting  realty 
titles,  which  in  tlu'  then  early  years  of  the 
Slate's  history  were  both  complicated  and 
unsettlefl,  had  fast  become  such  that  he  was 
gradually  coniiielled.  much  against  his  own  de- 


588 


History  of  the  Bench  and  Bar  of  California. 


sire,  to  confine  himself  almost  exclusively  to 
the  requirements  of  his  office  practice.  It  is 
within  the  bounds  to  say  that  Jarboe  passed 
upon  more  land  titles  than  any  other  lawyer 
in  the  State  of  California.  An  opinon  from 
him  as  to  any  questions  affecting  title  to  realty 
was  considered  as  tantamount  to  res  adjudi- 
cata  by  an  appellate  court,  and  often  respected 
more. 

Jarboe  was  married  on  the  25th  day  of  Oc- 
tober, i860,  to  Mary  H.  Thomas,  whom  he  had 
first  known  as  a  pupil  attending  the  school 
where  he  was  teacher.  Mrs.  Jarboe  was  the 
daughter  of  the  Rev.  Eleazer  Thomas,  whose 
tragic  death  on  the  nth  day  of  April,  1873, 
at  the  hands  of  the  treacherous  Modoc  In- 
dians, then  at  war  with  the  United  States, 
and  while  he  was  serving  as  peace  commis- 
sioner on  behalf  of  the  government,  produced 
such  a  profound  sensation  through  the  whole 
length  and  breadth  of  the  land. 

A  great  lover  of  books,  ever  an  ardent  stu- 
dent of  literature  and  history,  of  philosophy 
and  science,  Jarboe  during  the  whole  course 
of  his  manhood's  career  had  been  continu- 
ously gathering  together  and  acquiring,  until 
he  possessed  one  of  the  rarest,  most  exten- 
sive and  treasured  private  libraries  in  the 
land,  and  to  it,  as  an  humble  student,  a  de- 
voted enthusiast,  would  he  daily  and  nightly 
dedicate  such  portions  of  time  as  could  be 
spared  from  his  professional  labors ;  he  rev- 
elled in  it.  It  might  almost  correctly  be  called 
his  only  dissipation. 

In  his  residence  in  San  Francisco,  sur- 
rounded by  the  treasured  tomes  of  his  rare 
and  extensive  library,  with  wife  and  chil- 
dren about  him,  was  Jarboe  indeed  "at  home," 
and  there  ever  was  he  to  be  found  when  the 
exactions  of  professional  toil  permitted.  His 
home  life  was  ever  a  tranquil,  ideally  happy, 
almost  a  perfect  one;  within  his  household  was 
seldom,  if  ever,  heard  the  sound  of  discord; 
and  while  Jarboe  was  a  man  of  strong  con- 
victions, he  seemed  ever  to  be  the  personifica- 
tion of  gentleness  itself,  never  a  harsh  word 
fell  from  his  lios.  His  home  was  sacred, 
within  its  precincts  loving  indulgence  and 
thoughtful  kindness  ever  marked  the  routine 
of  daily  life,  and  no  intelligent,  appreciative 
mind  was  ever  beneath  Jarboe's  roof  but  felt 
the  refining  and  elevating  influence  which  ever 
seemed  to  pervade  the  very  atmosphere  of 
that  model  home.  It  was  the  intention  of 
Mr.  Jarboe  to  have  withdrawn  entirely  from 
the  arduous  labors  of  the  legal  profession,  and 
to  have  devoted  his  latter  years  exclusively  to 
literary  pursuits,  and  he  had  already  marked 


out  the  outline  and  commenced  upon  the  first 
literary  work  of  magnitude,  a  favorite  sub- 
ject with  him,  and  to  which  he  had  already 
devoted  a  great  deal  of  thought  and  study, 
A  History  of  the  French  Revolution,  when 
the  Fiat  of  July  4  came,  and  the  unit  of  his 
life  was  forever  withdrawn  from  the  sum  of 
human  existence. 

Jarboe  left  him  surviving,  and  who  still 
survive,  his  wife,  Mrs.  Mary  H.  Jarboe,  and 
a  daughter,  Kathryn,  who  was  subsequently 
married  to  Mr.  Jerome  Case  Bull,  and  his  son, 
Paul  R.,  who  was  his  father's  partner  at  the 
time  of  his  decease.  An  elder  son,  a  youth 
of  great  promise,  and  his  father's  namesake, 
died  on  May  4.  1872,  aged  eleven  years,  in- 
flicting a  blow  upon  the  parent  the  effects 
of   which    were    never   obliterated. 

In  politics,  Jarboe  was  a  consistent,  life- 
long Democrat.  For  the  latter  twenty  years 
of  his  life  he  took  no  active  part  in  the  par- 
ty's management  or  organization ;  prior  to 
that,  however,  and  during  all  of  his  residence 
in  San  Francisco  previous  to  1872,  few,  if 
any.  Democratic  state  or  county  conventions 
of  his  State  or  county  were  held  where  his 
name  did  not  appear  upon  the  roll  of  mem- 
bership, and  where  his  was  not  a  familiar 
name  and   his   a   familiar   figure. 

\X  the  time  of  his  death  Jarboe  was  a  mem- 
Ix-r  of  Oriental  Lodge  No.  144,  of  Free  and 
Accepted  Masons,  a  member  of  San  Fran- 
cisco Chapter  No.  i.  Royal  Arch  Masons;  a 
member  of  California  Commandery  No.  1  ; 
also  a  member  of  Islam  Shrine,  besides  be- 
ing a  thirty-second  in  the  Scottish  Rite.  The 
degree  of  Master  Mason  was  conferred  on  him 
in  Alameda  countv.  Shortly  after  he  had 
reached  the  age  of  majority,  and  since  No- 
vember 3,  i860,  he  had  been  continuously  a 
member  of  Oriental  Lodge.  The  Royal  Arch 
degree  was  conferred  upon  him  by  San  Fran- 
cisco Chapter  No.  i,  on  May  23,  1859,  since 
which  date  he  continued  to  be  a  member, 
and  of  which  chapter  he  was  high  priest 
during  the  year  1867.  The  temple  degree 
was  conferred  on  him  by  California  Com- 
manderv  on  the  6th  day  of  June,  1868. 

On  the  23d  day  of  August,  1881,  Mr.  Jar- 
boe delivered  the  address  before  the  L'niver- 
sity  of  California  on  the  occasion  of  the  inau- 
guration of  William  T.  Ried  as  President  of 
that  institution,  and  in  the  course  of  his  re- 
marks, with  reference  to  education,  indulged 
in  the  following  apposite  simile : 

"The  teacher  who,  like  Prometheus,  has 
striven  to  bring  down  the  sacred  light  to  the 
altars    of   his    fellowmen,    has   too   often,    like 


History  of  the  Bench  and  Bar  of  California. 


589 


Proniftlieus,  endured  the  pangs  oi  martyr- 
dom; and  from  the  period  when  the  founder 
of  the  Platonic  school — sneered  at  bj'  the 
golden  youth  of  Athens,  led  on  by  the  greatest 
mocker  of  his  age — was  put  to  death  by  the 
rulers  of  his  city,  until  the  present,  when  Si- 
berian exiles  and  the  groans  of  i)risoners 
attest  the  penalty  imposed  on  free  thought  by 
Russian  despotism,  the  conflict  between  the 
conserv-atism  of  the  old  .system  and  the  wants 
and  aspirations  of  the  people  has  been  too 
painfully  manifest. 

But  with  a  newer  and  broader  civilization 
for  its  inspiration,  the  university  of  modern 
times  has  assumed  for  itself,  its  professors, 
students  and  purposes,  a  wider,  more  elevated 
and  a   more   humane  position." 

The  writer  will  close  this  brief  sketch  by 
quoting  v^erbatim  "A  Friend's  Tribute,"  which 
appeared  in  The  San  Francisco  Laiv  Journal 
on  July  10,  1893,  less  than  a  week  subsequent 
to  his  death. 

"To  look  back  upon  the  history  of  the 
world,  or  even  of  a  state,  for  a  generation, 
to  recall  thirty-five  crowded  years  in  an  in- 
dividual life,  are  educational  experiences  of 
the  highest  efficacy.  These  were  the  leading 
reflections  forced  upon  my  mind  when  I  left 
the  noisy  thoroughfares  of  the  city  to  gaze 
upon  the  well-known  features  of  John  R.  Jar- 
boe,  still  and  calm  in  death.  How  well  I 
remember  him  in  his  early  manhood !  How 
clearly  I  can  recall  his  professional  advance- 
ment, year  by  year,  down  to  his  payment  of 
the  great  debt,  and  the  translation  of  his 
spirit  !  There,  on  his  expressive  face,  I  could 
discern  the  token  of  that  great  peace  and  con- 
tentment that  come  to  all  whose  lives  have 
been  at  once  pure  and  intelligent.  Gone  from 
him  forever  the  deej)  lines  of  perplexity,  the 
realization  of  knottv  problems,  the  nice  pois- 
ing of  opinion,  reminiscences  of  hard  contro- 
versies, involving  fraud,  treachery,  falsehood, 
violence,  which  he.  perhaps,  more  than  any 
surviving  lawyer  at  his  bar,  had  extracted 
from  many  liundrrds  of  records  in  which  the 
history  of  land  titles  is  written.  The  ])r()se 
of  life  ended — the  harmony  of  eternity  reached 
— the  poetry  of  tiie  futm-e  louching  with  mys- 
tic beauty  the  closed  page  of  the  iiast,  Ihese 
are  the  revelations  which  the  face  nf  Jdhn  R. 
Jarboe  made  to  one  of  his  old  associates. 
His  was  a  clean,  strong,  healthy,  fruit ftd  in- 
fluence upon  all  who  were  within  lii^  circle. 
pers(jnal,  social  of  professional,  and  il  flowed 
over  into  the  conmumity  beyond.  l-'rail  in 
iiody,  ui)on  his  mind  was  impressed  the  genius 
of    order    and    enerey.      Literal    in    his    percep- 


tion of  facts,  coldly  logical  in  his  application 
of  precedents,  his  imagination  shone  with  bril- 
liancy in  the  presence  of  the  great  masters  of 
literature,  in  whose  thoughts  and  feelings  he 
reveled,  and  his  heart  responded  with  consti- 
tutional integrity  and  sweetness  to  every  lofty 
conception  and  to  every  natural  and  delicate 
sentiment.  The  prosperity  of  households  and 
of  institutions,  the  freedom  from  anxieties 
and  from  contention,  the  healing  of  wounds 
and  the  closing  up  of  gaps  in  the  sequences 
of  descents,  distributions,  and  transfer,  are 
the  imperishable  record  of  his  fidelity  to  his 
clients,  to  the  law  and  to  justice.  His  accu- 
mulation of  books,  through  which  the  mighty 
voices  of  all  ages  speak  to  man,  is  a  monu- 
ment of  his  taste  and  of  his  acquisitions.  The 
hearts  of  his  relatives  and  of  his  friends  glow 
with  luminous  recollections  of  his  gracious 
character  and  gentle  ministrations.  And  the 
universal  feeling  of  all  who  had  touched  the 
man  is  that  a  rare  and  noble  life  has  finished 
its  earthly  work  and  gone  to  a  higher  sphere 
of  usefulness." 


J.  P.  TREADWELL. 


James  P.  Treadwell  enjoyed  a  fine  practice 
in  San  Francisco  in  the  early  days,  and  be- 
came possessed  of  a  large  fortune  as  the  result 
of  investment  in  real  estate,  water  stock,  etc. 
After  1870  he  was  hardly  ever  seen  in  court, 
and  the  majority  of  the  bar  were  not  only  ig- 
norant of  his  abilities,  hut  of  his  existence, 
also.     He  died  Decenfljer  2j.   1884. 

John  B.  Felton  said  to  Hall  .McAllister  and 
others  in  a  talk  one  day  that  Treadwell  was 
the  ablest  lawyer  in  the  State:  thai  wlieii  he 
(I'-elton)  had  examined  a  question  and  felt 
certain  of  liis  case,  he  was  not  content  until 
he  had  laid  it  before  'i'readwell.  and  had  a 
tussle  with  him  over  it.  Hon.  John  Currey 
had  ihe  same  exalted  t)pinion  of  Treadwell  as 
a  lawyer,  (leorge  Hudson  told  us  one  day 
th;il  lie  heard  Judge  t'urrey  say  that  Tread- 
well h;id  more  lh;in  ( leorge  W.  Tyler's  self- 
reliance,  wilhonl  Tyler's  .uidacily  ;  that  he 
(Judge  Currey)  wnuld  risk  anxiiiiug  on 
Treadweli's  judgment.  rt.';u-hed  at'ior  a  careful 
examination   of  a   law   ipieslion. 

Tniulwell  inariied  Mal)el  McXaughlon.  l>y 
whom  In-  had  live  children.  Me  left  to  them, 
in  ecpial  sh;iri,'s.  an  t'stale  which  was  ai)praised 
;tl  nearly  one  million  dollars,  and  named  his 
wile  as  executrix,  wilboul  bonds.  Mr.  Hud- 
son. In'fore  named,  tiled  the  will  as  attorne\". 
■  iml    had    U'lters    issued    to   the    widow,   but    she 


590 


History  of  flic  Bench  and  Bur  of  California. 


almost  immediately  discharged  him.  and  em- 
ployed William  Matthews.  Mr.  Matthews 
had  removed  to  San  Francisco  not  long  be- 
fore from  San  Jose,  where  he  had  won  celeb- 
rity in  great  land  cases.  He  was  a  man  who 
was  exceptionally  deliberate  in  the  prepara- 
tion and  trial  of  cases.  He  liked  the  weight- 
iest legal  controversies,  and  would  devote  a 
year  to  the  study  of  a  single  case.  He  was  a 
Virginian,  and  truly  high-toned  as  a  gentle- 
man, and  capable  as  a  lawyer.  He  accumu- 
lated a  fortune. 

Hon.  James  V.  Coffey.  Superidr  Judge,  to 
whose  department  the  Treadwell  estate  was 
assigned  in  probate,  appointed  an  attorney  to 
represent  absent  and  minor  heirs.  Mrs.  Tread- 
well  complained  of  this,  and  also  objected  to 
the  appraisers  appointed  by  the  court,  insist- 
ing on  naming  them  herself.  In  company 
with  her  half-brother,  she  visited  the  Judge  in 
his  chambers,  and  was  by  the  Judge  rebuked. 
The  lady,  who  was  a  child  in  contrast  with 
her  venerable  husband,  survived  him  nine 
years.  Her  estate  was  appraised  at  $83,500, 
in  money,  real  estate  and  Spring  Valley  Wa- 
ter stock. 

In  the  early  case  of  Treadwell  vs.  Payne 
&  Dewey  (15  Cal.  496),  in  which  Mr.  Tread- 
well was  appellant  and  his  own  attorney,  he 
took  the  position  that  a  person  in  possession 
of  real  property,  although  not  owning  title, 
could  maintain  an  action  to  enjoin  purchasers 
and  owners  thereof  from  enforcing  their  title, 
where  such  title  had  been  fraudulently  ac- 
quired of  a  third  person,  who  did  not  complain. 
But  the  then  three  Supreme  Court  judges, 
Baldwin,  Field  and  Cope,  were  unanimous 
against  him,  Judge  Baldwin  writing  the  opin- 
ion. Mr.  Treadwell  rested  his  contention  on 
the  ground  of  public  policy. 

Mr.  Treadwell  died  of  rheumatic  gout,  in  his 
sixty-third  year.  He  was  a  native  of  Massa- 
chusetts, and  came  to  California  in  1852.  His 
father  was  a  master  mariner.  Besides  being 
an  able  lawyer,  Treadwell  was  a  fine  scholar. 
He  was  learned  in  history,  and  was  a  mathema- 
tician. He  was  a  graduate  of  Harvard  Uni- 
versity. Physically  he  was  six  feet  high,  but  lost 
a  leg  by  a  gunshot  wound  when  a  boy.  His 
face  was  clean-cut.  He  had  bright  blue  eyes, 
light  hair,  and  a  prominent  nose.  He  was  of 
rather  quick  temper.  He  had  a  good  deal  of 
mechanical  talent,  and  in  a  room  adjoining  his 
law-office  he  had  a  carpenter  shop,  where  he 
and  a  carpenter  sometimes  worked  together  in 
making  a  wooden  leg  which  Treadwell  had 
invented.    He  was  a  money-making  man.    The 


astute  lawyer  was  also  a  natural  trader.     He       i- 
would  buy  a   large   stock  of  goods  and   store 
them,  and  sell  at  the  right  time. 

Judge  E.  W.  F.  Sloan  had  a  high  estimation 
of  Treadwell  as  a  lawyer — and  there  was  no 
more  capable  judge  than  Sloan.  Judge  Currey 
says  he  never  knew  a  man  who  had  in  mind 
so  perfect  a  chronological  history  of  the  acts 
of  parliament  as  Treadwell,  and  who  so  well 
understood,  therefore,  the  effects  of  such  acts 
of  parliament  in  modifj-ing  the  rules  of  the 
common  law,  and  their  enlargement  in  some 
cases  of  the  powers  of  the  court  of  chancery. 
He  was  very  learned,  possessed  of  great  intel- 
ligence, was  a  close  and  cogent  debater,  and, 
as  an  advocate,  he  spoke  in  clear  soprano  voice, 
with  earnestness  and  directness. 


GEORGE  B.  TINGLEY.* 

Colonel  George  Brown  Tingley,  who  was 
prominently  identified  with  the  early  history 
of  California,  was  born  in  Ohio,  August  8, 
1814,  on  a  farm  adjoining  that  of  General 
Grant's  father.  It  was  about  this  time  that 
Colonel  Tingley's  father  was  serving  as  an 
officer  in  the  War  of  1812.  On  his  father's 
side  he  came  from  New  Jersey  and  Manhat- 
tan stock,  a  far-back  grandfather  being  burgo- 
master and  holding  the  power  of  three  magis- 
trates. His  grandfather  and  father  served 
through  the  Revolutionary  War,  and  a  thou- 
sand pounds  was  a  standing  offer  from  the 
British  for  the  head  of  the  former.  A  mem- 
ber of  his  mother's  family  was  of  the  first 
constitutional  convention  and  a  member  of 
congress  under  Washington's  administration. 
The  grandfather  and  great  grandfather  Brown 
served  in  the  Revolution  to  the  surrender  of 
Cornwallis — both  being  present  at  that  memor- 
able event.  At  the  expiration  of  his  first  serv- 
ice the  former  went  back  to  Virginia  and 
organized  a  company  of  all  the  available  whites 
and  blacks  he  could  find  and  rejoined  Wash- 
ington, proving  a  valuable  addition  to  the 
army  in  its  final  struggle.  On  this  side  it  is 
claimed  that  the  family  is  of  the  same  blood 
as  that  of  Washington,  the  great  great  grand- 
mother and  Mary  Ball  being  cousins.  The 
family  which  holds  honorable  papers  signed 
by  Governor  Patrick  Henry  and  Governor 
William  Henry  Harrison  of  Virginia,  emi- 
grated from  that  state  to  Kentucky,  and  years 


*This  sketch  was  prepared  too  late  for  in- 
sertion in  "Men  of  the  First  Era,"  where 
otherwise  it  would  have  been  more  appro- 
priately placed. — Editor. 


History  of  the  Bench  and  Bar  of  California. 


591 


afterwards  to  Ohio,  the  women  heroically  shar- 
ing with  the  men  the  hardships  and  dangers 
of  pioneer  life.  In  additon  to  daily  cares, 
some  of  those  noble  mothers  sat  up  at 
night  and  kept  diligent  watch  for  the  Indians, 
while  the  white  and  black  men,  exhausted 
from  the  day's  work,  took  their  rest.  As  a 
boy,  Colonel  Tingley  worked  on  the  farm  in 
summer  and  attended  the  log-cabin  school  in 
winter.  He  was  a  diligent  student  and  eagerly 
read  and  imbibed  knowledge  howsoever  he 
could.  His  father,  who  was  a  superior  man, 
inspired  the  lad  with  the  belief  that  he  could 
reach  any  height  for  which  he  earnestly 
aimed. 

Eighteen  years  of  age  found  the  young  man 
prepared  to  go  to  Judge  Fishback  of  Batavia, 
and  enter  upon  the  study  of  the  law,  which  he 
regarded  as  the  most  elevating  of  all  profes- 
sions. He  was  cordially  welcomed  and  be- 
came a  member  of  that  distinguished  jurist's 
home,  with  its  culture  and  rare  social  and 
public  opportunities.  Here  he  had  access  to 
libraries,  and  with  a  retentive  memory  and  the 
ability  to  read  and  concentrate  his  thoughts 
under  any  condition,  he  improved  every  pre- 
cious hour. 

Personally,  he  was  tall  and  well  propor- 
tioned, handsome  and  magnetic  and  with  a 
strong,  pleasing,  flexible  voice  that  was  to  serve 
him  well  as  an  orator.  At  the  close  of  his 
study  he  joined  his  uncle,  the  Hon.  William 
J.  Brown,  who  served  in  congress  and  was 
father  of  Hon.  Austin  H.  Brown,  and  of  Ad- 
miral George  Brown,  and  who  was  then  prac- 
ticing law  with  Governor  Biggers  in  Rush- 
ville,  Indiana.  On  his  merit  the  promising 
young  lawyer  was  soon  admitted  to  the  firm 
as  junior  partner.  Here,  politically,  and  in 
the  practice  of  the  law.  he  came  in  intimate 
contact  with  men  some  of  whom  reached 
the  President's  Cabinet,  and  others  who 
achieved  national  reputation  in  the  United 
States  senate,  and  in  diplomatic  relations.  In 
his  visits  to  Washington  he  was  brought  into 
relations  with  the  President,  and  that  galaxy 
of  fine  minds  that  included  Clay,  Webster  and 
Calhoun.  Stimulated  by  such  masterful  in- 
tellects he  rapidly  rose  in  his  profession  and 
in  the  confidence  of  the  people  whn  elected 
him  to  positions  of  trust. 

He  took  rank  as  an  orator  as  well,  and 
many  came  from  afar  to  hear  liiin  in  oration, 
and  when  conducting  important  cases.  He 
married  Miss  Nancy  Walker,  a  blue  grass 
belle  of  Kentucky,  the  youngest  daughter  of 
Major    William    Walker    of    the    Revolution, 


and  of  the  War  of  1812.  Her  family  was 
closely  related  to  the  Breckenridges,  McClel- 
lans  and  Carters,  and  to  Hon.  James  G.  Blaine 
and  President  Buchanan. 

Colonel  Tingley  served  in  the  Mexican  War 
with  honorable  mention,  and  during  that  time 
was  correspondent  for  the  Indianapolis  Sen- 
tinel, and  other  journals.  Upon  return  home 
he  was  again  elected  to  the  legislature.  At  the 
close  of  the  session  he  determined  to  go  to 
the  gold  fields.  Coming  from  such  stock  and 
with  his  own  fruitful  experience,  he  was  well 
fitted  to  face  the  perilous  si.x  months'  journey 
across  the  plains,  and  to  render  valuable  service 
as  one  of  the  makers  of  this  great  State.  With 
a  party,  he  started  in  April,  1849,  for  Califor- 
nia. Among  the  number  was  Colonel  Thomas 
J.  Henley,  for  twelve  years  a  member  of  con- 
gress from  Indiana,  and  who  also  became 
identified  with  California  history.  Like  Colonel 
Tingley,  Colonel  Henley  had  a  passion  for 
hunting,  and  the  two,  when  oflf  on  one  of  these 
jaunts,  became  lost  from  the  train.  Subsisting 
on  what  they  could  shoot  and  gather,  they 
made  the  rest  of  the  dangerous  journey  alone, 
arriving  at  Sacramento  earh'  in  September, 
ragged  and  famished. 

There  John  McDougal  of  Indianapolis  (soon 
afterwards  Governor)  found  them  and  joyfully 
embraced  them.  To  Colonel  Tingley  this  gen- 
tleman said  :  "George,  you  are  the  very  man 
we  want  for  the  legislature  on  tlie  Whig 
ticket.  There  will  be  a  big  meeting  here  to- 
night, and  you  must  electrify  the  crowd." 
"But,  look  at  my  rags,  John!"  rejoined  Ting- 
ley. "O,  clothes,  be  d d !"  exclaimed  Mc- 
Dougal ;  "by  tomorrow  you  may  be  able  to 
find  some  that  will  fit  your  gigantic  propor- 
tions." So,  in  tattered,  red  flannel  shirt,  brim- 
less  hat,  and  toes  out  of  boots,  Colonel  Ting- 
ley mounted  a  barrel  at  the  appointed  hour, 
and  happily  and  effectively  addressed  the  won- 
derful audience. 

Next  day,  equipped  with  a  new  flannel  shirt 
and  other  appropriate  garments,  and  pork  and 
beans,  and  pick,  pan  and  shovel,  he  went  to 
Feather  River,  where  he  painied  out  fifty 
dollars  a  day.  In  due  time  he  was  elected  to 
the  first  legislatiue,  of  whom  it  is  said  never 
a  handsomer  nor  a  more  intelligeiU  hody  of 
men  convened  to  establish  a  State.  He  paid 
fifty  dollars  for  a  pair  of  boots  and  a  small 
fortune  for  a  suit  of  broadcloth  to  wear  to 
the  cai)ital.  where  for  several  nights,  at  ex- 
orbitaiU  i)rice,  he  slept  soundly  on  the  dining 
table,  "there  being  no  room  in  the  inn."  The 
stage   fare   from    San    Francisco   to    San   Jose, 


5<)2 


History  of  the  Bench  and  Bar  of  California. 


the  capital,  was  fifty  dollars.  Colonel  Ting- 
ley's  ability  was  at  once  recognized,  and  he 
was  made  speaker  pro  tern,  and  placed  on  im- 
portant committees.  Among  his  work  there 
he  formulated  the  criminal  laws  of  the  State 
and  the  school  and  homestead  laws,  and  when 
at  his  death  the  courts  adjourned  in  respect 
to  his  memory,  one  judge  spoke  of  the  last- 
ing ability  with  which  those  laws  were  con- 
structed, and  another  judge  said  that  he  re- 
garded Colonel  Tingley  as  the  most  reliable 
and  the  most  courteous  mcm])cr  of  the  San 
Francisco  bar. 

In  1850  he  was  sent  to  tlu-  senate  and  was 
prominently  put  forward  as  a  candidate  for 
the  next  Governorship,  but  gave  way  to  Ma- 
jor Reading,  who,  because  of  his  longer  resi- 
dence, might  perhaps  poll  a  larger  Spanish 
vote.  He  al.so  received  votes  for  the  United 
States  senate.  In  the  dividing  of  the  State 
he  named  El  Dorado  county.  For  a  time  he 
practiced  law  in  San  Jose  with  Hon.  E.  O. 
Crosby,  one  of  the  members  of  the  consti- 
tutional convention.  .\niong  Colonel  Ting- 
ley's  clients  were  many  of  the  old  Spanish 
Dons,  who  owned  principalities,  and  who,  with 
the  advent  of  the  grasping,  enterprising  Amer- 
icans, became  involved  in  litigation.  He  ac- 
quired valuable  properties,  among  which  was 
the  Mission  of  San  Jose,  which,  together  with 
Beard  and  Horner,  he  purchased  in  1851.  As 
senator  he  followed  the  "Legislature  on 
Wheels,"  from  San  Jose  tc  Vallejo.  to  Bene- 
cia,  back  to  San  Jose,  and  to  Sacramento.  He 
was  placed  on  the  Whig  ticket  for  congress  to 
represent  the  southern  district,  there  being 
hut  two  at  that  time.  In  the  canvass  he  as- 
sured the  people  that  a  transcontinental  rail- 
road was  practicable,  and  that  within  twenty 
years  they  would  be  able  to  reach  New  York 
inside  of  a  week's  time.  While  his  listeners 
enjoyed  his  enthusiasm  they  did  not  believe 
that  his  prophecy  would  be  fulfilled.  He  polled 
the  highest  Whig  vote  ever  cast  in  the  State, 
miming  far  ahead  of  his  ticket,  and  it  was 
claimed  by  the  Whigs  and  even  by  some  con- 
scientious Democrats,  that  he  was  elected  and 
counted  out.  I'ut  the  district  was  so  large 
and  with  no  means  of  conveyance  but  horse- 
l)ack.  that  it  was  not  thought  worth  the  trou- 
ble  to  attempt   a   recount. 

Colonel  Tingley  then  establislud  himself  in 
San  Francisco,  where  he  stood  among  the 
leaders  of  the  bar,  and  his  strong  genial  per- 
sonality made  him  hosts  of  friends.  He  gave 
much  time  to  land  and  criminal  practice.  He 
had  charge  of  the  noted  murder  cases  of  that 
(lav,  and   not  one  of  his  clients  was  sentenced 


in  the  first  degree.  It  was  declared  impossible 
to  defeat  his  skill  or  for  a  jury  to  resist  the 
eloquence  and  pathos  of  his  appeals. 

In  1854  when  he  had  charge  of  a  famous 
murder  case  with  Colonel  E.  D.  Baker  assist- 
ing him,  as  the  trial  progressed  he  felt  that 
the  judge  was  making  rulings  against  him.  and 
at  one  point,  arising,  he  exclaimed :  "That 
is  as  false  as  hell !"  "Fine  the  gentleman 
one  hundred  dollars,  not  only  for  contempt 
of  the  court,  but  for  contempt  of  the  Al- 
mighty in  asserting  that  there  is  no  hell !" 
cried  the  judge.  Colonel  Tingley  ran  his 
hand  down  into  his  trousers  pocket,  and  bring- 
ing out  a  couple  of  slugs,  placed  them  upon 
the  table.  Thtn  Colonel  Baker,  arrayed  in 
his  characteristic  dress  of  blue  cloth  and  brass 
buttons,  arose  and  with  mellifluous  voice,  said, 
"I  quite  agree  with  Colonel  Tingley  in  his 
estimate  of  the  situation."  "Send  him  to  jail !" 
roared  the  irate  judge,  and  to  jail  he  went. 

It  was  said  of  Colonel  Tingley  that  he  never 
was  known  to  carry  a  purse,  his  trowsers  and 
vest  pockets  being  handier,  and  that  no  one 
ever  made  an  appeal  to  him  for  aid  without  a 
generous  response.  If  at  times  he  was  hard 
pressed  it  was  because  of  this,  and  that  he 
would  not  press  his  debtors  hard,  and  not  for 
lack  of  bountiful  income.  Politics  was  his 
forte  and  the  fascination  of  statesmanship  was 
so  great  that  it  interfered  with  his  law  busi- 
ness. Often  when  he  had  gone  through  the 
drudeery  of  a  dit^cult  case  and  by  his  genius 
was  bringing  it  to  successful  issue,  he  passed 
it  over  to  some  other  lawyer  who  gathered  in 
the  larger  share  of  the  fee,  while  he  responded 
to  an  urgent  call  and  went  out  to  serve  his 
party  at  a  time  when  the  able  workers  were 
few.  A  politician  in  the  higher  sense,  he 
could  not  descend  to  the  lower  levels  and  vul- 
gar methods.  If  recognition  of  his  ability 
and  worth  were  not  given  without  his  calling 
attention  to  it,  or  asking  for  reward,  he  kept 
to  his  high  ideals  while  the  less  noble  and 
the  underserving  often  rushed  in  and  secured 
high  official  position,  such  as  opportunity  made 
possible  because  of  the'  intelligent  working  of 
his  brain  and  of  the  integrity  and  fineness  of 
his  nature.  Again  others,  without  his  pro- 
phetic insight,  appropriated  his  valuable  sug- 
gestions and  carried  them  out  to  their  own 
glorification.  He  was  chief  organizer  and  plat- 
t'onn  builder  of  the  Republican  party  in  Cali- 
fornia and  was  on  the  ticket  as  presidential 
elector.  He  neglected  a  lucrative  law  practice 
to  go  out  and  stump  and  work  for  the  young 
jiarty.      Although    the    outlook    was    not    very 


History  of  the  Bench  and  Bar  of  California. 


593 


encouraging,  he  determined  to  do  his  part 
towards  its  success,  and  at  any  rate,  to  assist 
in  putting  it  in  a  position  of  assurance  that 
it  had  come  to  stay.  His  aid  was  invaluable  in 
planning  the  campaign  of  i860.  The  State 
central  committee  then  asked  him  to  go  out 
in  the  districts  where  there  were  the  greatest 
previous  majorities  to  overcome,  and  it  was 
conceded  that  no  man  did  more  effective  work 
toward  carrying  the  State  for  the  first  time 
for  the  Republican  party. 

With  his  zealous  watchfulness  and  far- 
sightedness he  discovered  a  plan  in  embryo 
which  if  allowed  to  mature  might  mean  dis- 
aster to  California.  Without  delay  he  in- 
formed the  authorities  at  Washington  with 
the  result  that  General  Sumner  quickly  and 
unexpectedly  appeared  upon  the  scene  and 
superseded  General  Albert  Sydney  Johnson  in 
command  of  the  Pacific  Division,  and  saved 
California  from  the  possibility  of  being  turned 
over  to  the  Southern  Confederacy. 

He  was  the  first  man  to  conceive  and  pro- 
pose the  plan  of  establishing  a  "Union  party" 
in  California,  with  a  platform  so  conciliating 
as  to  hold  the  Republicans  and  bring  over  the 
Douglas  wing  of  the  Democracy.  He  met 
with  much  opposition  and  denunciation  from 
his  own  party — some  members  of  the  State 
central  committee  even  coming  to  his  home  and 
arguing  against  the  change  of  name  and  any 
concession  whatever.  He  had  worked  in  Stan- 
ford's campaign  in  1859,  and  had  seen  him 
completely  snowed  under;  and  now  if  Stan- 
ford was  to  win  barriers  were  to  be  broken 
and  much  persuasive,  conciliating  argument 
used.  With  Stanford  he  went  on  the  stump 
and  accomplished  effective  work.  He  wrote 
a  Union  address  and  submitted  it  to  a  com- 
mittee of  whom  the  late  Benjamin  P.  Avery, 
since  United  States  minister  to  China,  was  the 
head.  It  was  pronounced  so  complete  as  to 
need  no  amendment.  The  next  legislature  passed 
Union  resolutions  introduced  by  Hon.  Walter 
Van  Dyke,  and  this  gentleman  and  Colonel 
Tingley  were  delegates  to  the  ■  first  Union 
convention  called  in  the  State,  and  that  con- 
vened the  following  Jiuie  at  Sacrament n,  and 
we  know  the  long  years  in  which  that  i)arty 
remained  in  unbroken  power.  Without  ask- 
ing or  seeking.  Colonel  Tingley  was  appointed 
to  office  by  Lincoln.  Lincoln's  favorite  cab- 
inet officer,  Hon.  Caleb  R.  Smith,  had  prac- 
ticed law  with  Colonel  Tingley  in  Indiana, 
and  now  both  he  and  the  president  sent  per- 
sonal letters  to  Colonel  Tingley  requesting  him 
to  come  on  to  Washington,  and  assuring  him 


that  wiiatever  he  desired  should  be  accorded 
him.  This  coming  from  the  great  president 
who  had  known  him  and  understood  him  well, 
gave  him  his  last  great  pleasure.  He  was  pre- 
paring to  start  for  the  capital  when  his  sud- 
den death  occurred — and  the  world  was  poorer 
for  the  loss  of  a  gentleman  of  the  old  school. 

Of  his  family  his  wife  is  still  living,  and  two 
daughters — Margaret  Manorah,  who  married 
Colonel  Thomas  B.  Ludlum,  and  has  a  daugh- 
ter, Alice  May,  and  Mary  Viola,  who  mar- 
ried Senator  James  Henry  Lawrence,  and  has 
a  daughter,  Constance  Violet. 


W.  W.  HAWKS. 


W.  W.  Hawks,  a  brilliant  spokesman  of  the 
old  Whig  party ;  an  able  lawyer  and  debater ; 
State  senator,  1855-56 :  died  at  Honolulu,  of 
consumption,  a  year  or  two  later.  He  was  a 
native  of  New  York  and  was  a  son  of  Bishop 
Hawks.  His  oration  on  Henry  Clay  is  in 
The   Whig  of  August  11,   1852. 


W.  W.  PENDEGAST. 


William  Wirt  Pendegast  grew  up  in  Yolo 
county,  where  his  father  was  a  well-to-do 
farmer,  and  also  a  clergyman  of  the  Christian 
denomination.  'J  he  son  was,  as  a  youth,  tall 
and  well  built,  with  a  large,  well-shaped  head, 
and  walked  erect.  He  received  an  excellent 
education.  Upon  being  admitted  to  the  bar 
he  went  to  Virginia  City,  Nevada,  to  prac- 
tice, in  1864,  but  remained  only  a  short  time. 
Returning,  he  settled  at  Napa.  He  soon  be- 
came a  prominent  figure  at  the  bar.  His 
powers  of  mind  were  of  a  high  order.  He  was 
very  learned.  In  argument  he  was  clear  and 
logical,  and  exhaustive,  his  expression  at  once 
chaste  and  terse.  His  manner,  free  from  af- 
fectation,  was  easy  and  pleasing. 

Mr.  Pendegast  was  elected  to  the  Slate 
senate  from  Na])a  county  in  i8()7.  and  re- 
elected in  1871,  serving  at  four  sessions,  the 
first  beginning  December  2,  1867,  and  the  last 
ending  March  30.  1874.  He  was  an  interest- 
ing and  skillful  debater.  In  committee  he  was 
full  of  wise  suggestions.  No  senator  exerted 
a  greater  or  a  cleaner  influence,  his  party  be- 
ing dominanl  in  lliat  luxly  a1  all  the  ses- 
sions he  atteniK'd  rxcrpt  the  first.  .\l  the  last 
session,  the  t whuI iet h.  when  Charles  Sunmer's 
death  was  annoiniced.  he,  although  a  zealous 
Democrat,  offered  resolutions  of  regret  and 
eidogy.  which  were  adopted.  He  was  chair- 
man of  the  senate  judiciary  committee  at  that 
session.      He    was   author   of   the   act    making 


594 


History  of  the  Bench  and  Bar  of  California. 


women  eligible  to  educational  offices,  which 
was  approved  by  Governor  Booth,  March  13, 
1874.  He  was  also  author  of  the  local  option 
act  of  March  19,  1874,  which  the  Supreme 
Court  declared  unconstitutional  in  ex  parte 
Wall.      (48  Cal.  323-) 

When  the  code  of  civil  procedure  and  the 
civil  and  penal  codes  were  presented  to  the 
legislature  at  the  session  of  1871-72,  they  were 
only  adopted  after  favorable  reports  from  a 
joint  committee  of  the  two  houses.  Mr.  Pen- 
degast  was  the  chairman  of  this  important 
committee.     (See  page  192  of  this  History.) 

This  talented  man  died  on  the  ist  of  March, 
1876.  He  was  buried  at  Woodland,  where 
his  father  was  still  living.  He  was  not  then 
a  member  of  the  legislature,  but  both  houses 
passed  resolutions  of  profound  respect  for  his 
memory,  and,  more  than  this,  they  did  some- 
thing without  precedent— they  attended  the 
funeral  in  another  county,  adjourning  from 
Friday.  March  3,  to  Monday,  Alarch  6. 

Mr.  Pendegast  was  born  in  Monroe  county, 
Kentucky.  February  8,  1842,  so  that  he  at- 
tained only  the  age  of  34  years.  He  came  to 
California  with  his  parents  in  1854,  was  raised 
and  educated  at  Woodland,  and  was  admitted 
to  the  bar  by  the  Supreme  Court  in  1863.  He 
was  twice  married,  but  both  wives  are  dead. 
He  left  a  son  and  two  daughters,  all  of  whom 
are  living.  His  father  has  been  dead  more 
than  twenty  years,  but  his  mother  is  still  re- 
siding on  the  same  spot  in  Yolo  county,  where 
they  settled  forty-five  years  ago.  His  brother, 
R.  W.  Pendegast.  lives  at  Woodland. 


JOHN    G.    McCULLOUGH. 

General  John  G.  McCullough,  who  has  now 
for  many  years  been  a  resident  of  Vermont, 
once  held  a  distinguished  place  at  the  bar 
and  in  public  life  in  California.  He  was  a 
member  of  the  assembly  from  Mariposa  coun- 
ty in  1862.  On  April  nth  of  that  year  he 
and  H.  G.  Worthington,  by  order  of  the  as- 
sembly, went  to  the  bar  of  the  senate  and  an- 
nounced the  impeachment  of  James  H.  Hardy, 
Judge  for  the  Sixteenth  Judicial  District,  com- 
prising .Amador  and  Calaveras  counties.  The 
other  managers  chosen  by  the  assembly  to 
conduct  the  impeachment  procedings  were 
William  Higby,  Thos.  B.  Shannon,  and  Thos. 
N.  Machin.  There  were  twenty-two  arti- 
cles of  impeachment,  and  the  accused  was 
found  guilty  on  one  charge,  by  a  vote  of  24 
to  12.  and  was  removed  from  office.  The 
charge    sustained    was   that    of   using   treason- 


able language  against  the  United  States  Gov- 
ernment. The  country  was  then  passing 
through  the  Civil  War. 

General  McCullough  was  State  senator  in 
1863.  He  signed  the  report  to  unseat  Senator 
Leander  Quint,  of  Tuolumne  and  Mono, 
and  to  seat  Jas.  M.  Cavis,  which  report  was 
adopted.  His  senatorial  term  was  interrupted 
by  his  election  as  attorney-general.  He  was 
attorney-general  from  December,  1863.  to  De- 
cember, 1867.  A  Republican  in  politics,  he 
was  defeated  for  re-election  when  the  Demo- 
crats  swept   the   State  in    1867. 

California  has  been  generally  fortunate  in 
her  chief  law-officers,  and,  of  the  nineteen  men 
who  have  thus  far  filled  the  office  of  attorney- 
general,  John  G.  McCullough  is  to  be  placed 
in  the  first  rank — so  far,  at  least,  as  regards 
an  able  and  faithful  administration  of  that 
office — by  the  side  of  James  A.  McDougall, 
John  R.  McConncll.  William  T.  Wallace,  and 
Jo.  Hamilton. 

In  his  official  report  of  November  6.  1865, 
he  argued  against  any  attempt  to  codify  the 
laws,  unless  it  be  done  under  the  supervision 
of  the  best  talent ;  and  declared  that  "the  es- 
cheat laws  of  this  State  are  very  lame  in 
many  provisions."  In  1867,  he  recommended 
that  if  any  changes  be  made  in  the  Crimes 
Act.  or  the  Criminal  Practice  Act,  the  New 
York  codes  be  adopted  almost  as  a  whole. 
He  therein  stated  that  he  was  the  author  of 
the  law  admitting  the  testimony  of  parties  to 
the  record  and  in  interest,  and  that  he  was  in 
favor  of  negro  testimony ;  and  he  asked  that 
other  disabilities  of  persons  to  testify  be  re- 
moved. Governor  Low  in  his  biennial  mes- 
-sage  of  December  4,  1867,  paid  a  strong  trib- 
ute to  Attorney-General  McCullough's  able 
and  faithful  service. 

On  leaving  the  attorney  general's  office.  Gen. 
McCullough  located  at  San  Francisco,  and 
formed  a  partnership  with  James  T.  Boyd,  in 
the  practice  of  law  which  lasted  from  the 
()l)ening  of  the  year  1868  until  1873. 

During  this  period,  in  1871,  General  Mc- 
Cullough on  a  visit  to  the  East,  married  Miss 
Eliza  Hall  Park,  daughter  of  the  pioneer  bar 
leader  and  capitalist,  Trenor  W.  Park,  and 
two  years  later  he  removed  to  Vermont,  where 
Mr.  Park  had  settled  a  few  years  before. 

General  McCullough  was  born  in  Newark, 
Delaware,  and  is  of  Scotch-Welsh  descent. 
He  was  early  left  an  orphan,  his  father  dying 
when  he  was  three  years  of  age.  and  his 
mother  wlien  he  was  seven.     His  earlv  advan- 


i 


■;■<■ 
9 


.^..„.    ,, 


History  of  the  BencJi  and  Bar  of  California. 


595 


tages  were  few ;  but  he  had  an  eager  desire 
to  learn,  and  an  indomitable  spirit,  and  suc- 
ceeded in  graduating  from  Delaware  Col- 
lege with  the  highest  honors  before  reaching 
his  twentieth  year.  He  then  entered  the  law 
office  of  St.  George  Tucker  Campbell,  of 
Philadolijliia.  dividing  his  time  between  a 
course  of  study  in  the  law  school  of  the  Uni- 
versity of  Pennsylvania,  and  practical  work 
in  the  office.  He  secured  from  the  University 
the  degree  of  LL.  B.  In  1859  he  was  admitted 
to  the  bar  of  the  Supreme  Court  of  Pennsyl- 
vania. 

bnortly  after  his  admission  to  the  bar,  Gen- 
eral McCullough  came  to  California.  He  made 
a  short  stay  at  Sacramento,  where  he  was  ad- 
mitted to  the  bar  of  the  Supreme  Court,  and 
then  located  at  Mariposa.  To  our  glance  at 
his  career  in  California,  we  may  add  that  since 
he  left  us  he  has  always  been  the  same  active 
and  influential  force  that  he  was  in  this  State, 
only  his  sphere  has  generally  been  outside  of 
the  legal  profession.  He  is  now  a  member  of 
the  Vermont  senate,  and  president  pro  ton.  oi 
that  body.  His  business  interests  require  him 
to  spend  several  months  of  the  year  in  New- 
York  city.  He  is  president  of  the  Chicago 
and  Erie  Railroad  Company  and  has  been  such 
since  the  opening  of  that  division  of  the  great 
Erie  Railroad.  He  is  president  also  of  the 
Bennington  and  Rutland  Railroad  Company, 
and  a  director  of  several  banks  and  insur- 
ance companies  of  the  first  importance.  In 
1900  Middlebury  College  conferred  upon  him 
the  degree  of  LL.  D.     He  has  a  large  fortune. 


and  personally  is  universally  well  liked,  having 
a  fine  presence  and  an  animated,  engaging  ad- 
dress. 

We  requested  Hon.  James  T.  Boyd  to  give 
us  something  of  his  own  to  add  to  or  incor- 
porate with,  the  foregoing  notice  of  General 
McCullough,  and  received  from  him  a  letter 
as   follows  : 

"S.\N  Francisco,  Nov.  i,  1900. 
-My    Dear   Mr.    Shuck: 

"You  say  you  assume  that  my  former  law 
partner  and  I  are  still  friends.  It  has  been 
my  good  fortune,  both  in  business  partnerships 
and  in  my  clientage,  to  come  in  contact  with 
many  lovable  men.  Not  least  among  them  is 
my  old  friend  and  partner  of  whom  you  speak, 
and  who  I  am  sure  has  the  same  high  regard 
for  me  that  I  have  for  him.  But  telling,'  for 
publication,  of  those  qualities  of  mind  and 
heart  which  made  our  intercourse  so  pleasant, 
and  which  keeps  the  memory  so  fresh  and  so 
enduring,  is  another  proposition. 

"The  General  left  our  profession  when  (piite 
a  young  man.  He  gave  promise  at  that  time 
of  reaching  its  highest  honors.  The  profes- 
sion can  ill  afford  to  spare  such  a  rrian.  But 
from  all  I  hear  of  his  career  in  the  business 
world,  the  distinction  that  would  have  honored 
the  lawyer  has  deservedly  fallen  upon  the 
shoulders  of  the  business  man  and  statesman. 

"I    am   very   truly   yours. 

"Jamf.s   T.    Bovii." 

General  McCullough  took  an  active  interest 
in  the  presidential  campaign  of  1900.  He  was 
chairman  of  the  Vermont  delegation  to  the 
Republican  National  Convention  that  met  :it 
Philadelphia. 

77//:  HI)/ TOR. 


The  ADVENTUROUS  CAREER  of  L.  A.  NORTON 


"What  constitutes  a  state?"  asked  a  great 
linguist  and  lawyer,  in  stirring  verse.  And 
he  finely  answered  his  own  question: 

"     •     ■     ■     Men.  high-minded  nieji ; 
Men   who  their  duties  know, 
But  know  their  rights,  and  knowing,  dare 
maintain." 

it  would  be  a  robust  state  made  up  of  Nor- 
tons.  We  are  to  speak  of  an  exceptional  char- 
acter; a  man  strong  in  mind  and  body,  of 
rugged  honesty,  of  independent  and  dttc-r- 
mined  nature,  straightforward,  never  court- 
ing a  quarrel,  but  always  refusing  to  get  out 
of  the  way  of  peril — dauntless  among  men, 
gentle  with  children,  knightly  to  women.     His 


courage,  both  moral  and  physical,  was  jilie- 
nomenal.  ;ind  his  deeds  of  prowess,  generally 
episodes  of  liis  professional  praeiioe,  give  him 
an   altogether    uni(|ue   pl;ice    in    our    History. 

I'-.\peetant  reader,  you  are  not  to  lie  ush- 
ired  into  the  realm  of  romance,  but  shall  see 
ibi'  paiioiam.i  inifold  of  a  real  life.  .And, 
wlun  ,ill  b.is  1n'en  presented,  yon  will  .isk 
involuiu.irily,  t^mld  novrlisi  ])roduce  a  par- 
allri:-' 

i  lu'  Colonil  ]iulilislir(l  liu-  strange  story,  a 
few  years  bet'oii-  Ins  life  endetl,  as  .in  inter- 
esting record  for  his  children  and  friends. 
And  indeed,  it  will  ever  be  of  deep  concern 
to  all   minds,  ";is  showing,"  to  cpiote  his  own 


596 


History  of  the  Bench  and  Bar  of  California. 


words,  "what  one  waif  cast  out  upon  the 
stormy  billows  of  life,  has  accomplished ;  or, 
in  other  words,  what  a  determined  spirit,  pos- 
sessed of  energy  and  perseverance,  may 
achieve." 

Of  the  most  remarkable  of  the  scenes  and 
events  which  he  recorded,  there  were  still 
many  living  witnesses.  Of  others,  hardly  less 
strange,  he  omitted  mention.  He  had  writ- 
ten in  one  place  that  at  the  ancient  city  of 
Pueblo  Viejo  he  once  lay  in  the  shade  of  a 
castor-bean  tree  over  thirty  feet  high  and 
over  eighteen  inches  at  the  butt  and  over 
thirty  years  old. 

"1  struck  it  out,"  he  said,  "and  yet  when 
any  of  my  readers  go  to  Los  Angeles,  if  they 
will  visit  the  old  Spanish  part  of  the  city ; 
they  will  find  a  castor-bean  root  with  four 
branches  coming  from  it,  either  of  which  is 
over  six  inches  through  and  any  one  who 
will  go  to  Anaheim,  Los  Angeles  county,  and 
travel  a  mile  northeast  of  that  place,  can  credit 
my  cactus  story." 

Colonel  Norton's  father,  of  English  descent, 
was  born  in  Connecticut  and  was  a  farmer. 
His  mother  was  of  German  extraction,  and  w^as 
born  and  raised  in  Pennsylvania.  The  father 
was  a  volunteer  soldier  from  New  York  in  the 
War  of  1812.  Colonel  Norton,  the  fifth  child 
of  a  family  of  nine,  was  born  in  Chautauqua, 
Franklin  county,  New  York,  in  the  year  1819. 
His  parents  were  poor,  and  our  subject  set 
out  to  earn  his  own  living  at  the  age  of  eleven 
years.  "1  tied  my  worldly  possessions  in  a 
pocket  handkerchief,"  he  said,  "strung  it  over 
my  shoulder,  and,  like  a  quail  with  a  shell  on 
its  back,  I  left  the  nest  with  twenty-five  cents 
in  my  pocket  and  dug  out  on  foot.  The  second 
day  I  arrived  at  the  Read  Mill,  St.  Lawrence 
county.  New  York,  where  I  hired  to  a  man  by 
the  name  of  Tibbits,  at  four  dollars  per  month, 
and  I  worked  four  months.  At  the  end  of  that 
time  I  again  shouldered  my  pack,  with  my 
sixteen  dollars,  and  went  to  Ogdensburg,  where 
I  crossed  the  St.  Lawrence  river  and  took  a 
Canadian  steamer  to  Queenstown,  en  route  to 
Upper  Canada,  now  known  as  Canada  West, 
where  I  had  uncles  residing.  I  then  walked  to 
Niagara  Falls,  and  after  visiting  the  Falls, 
went  up  the  Niagara  river  and  crossed  to  Black 
Rock,  thence  to  Buffalo,  and,  after  a  couple  of 
days  at  Buffalo,  I  found  a  schooner  going  up 
Lake  Erie,  and  soon  made  arrangements  to 
work  my  passage  on  board  of  it  up  the  lake. 

"It  was  claimed  that  the  vessel  was  loaded 
with  brick ;   I  have  since  been  of  the  opinion 


liiat  it  was  a  smuggler.  On  our  way  up  we 
encountered  a  heavy  gale,  but  at  length  we 
landed  in  the  woods  at  an  anchorage  called 
Nanticoke.  I  went  on  shore  in  the  schooner's 
boat,  and  again,  with  my  pack  on  my  back,  I 
threaded  the  Canada  shore  of  Lake  Erie  for 
several  miles  through  the  woods  before  I  came 
to  any  settlement ;  but  at  length,  after  a  day's 
hard  traveling,  I  reached  Long  Point,  where 
the  farmers  were  not  yet  through  their  har- 
vest. Hands  were  scarce,  and  I  soon  con- 
tracted for  fifty  cents  per  day  (half  a  man's 
wages).  I  worked  twenty  days  and  got  ten 
dollars,  and  again  pursued  my  journey." 

He  cannot  be  followed  in  his  wanderings 
over  the  continent,  but  he  early  interrupts  his 
narrative  to  declare  that,  "during  all  my  per- 
ambulations, I  never  lost  an  opportunity  in 
learn  to  read  and  write." 

At  the  age  of  seventeen  he  was  in  Canada, 
and  turned  out  with  the  Patriot  forces  in  rebel- 
lion against  the  British  government  (1837). 
He  was  wounded  and  taken  prisoner.  Strange 
adventures  attended  him  even  in  his  prison  life, 
and  in  hospital.  He  and  his  companions  were 
sentenced  to  banishment,  and  each  being  asked, 
"Do  you  accept  the  sentence,  young  Norton 
answered  in  his  turn,  "Would  a  man  refuse  to 
be  banished   from  hell  to  heaven  ?" 

He  struck  Chicago  when  it  had  not  more 
than  fifteen  liundred  inhabitants — but  his  ex- 
periences in  Illinois  and  in  Michigan,  must  be 
passed  over.  He  enlisted  for  the  War  with 
Mexico,  in  the  Twenty-second  Illinois  Volun- 
teers, his  company  being  from  Kane  count  /. 
He  raised  the  company,  but  refused  to  be 
elected  Captain,  as  he  had  been  promised  the 
position  of  Quartermaster  for  the  regiment. 

Before  New  Orleans  was  reached  he  had  a 
serious  attack  of  measles,  and  his  Colonel  or- 
dered that  he  be  left  in  hospital.  He  prevailed 
on  the  Colonel  to  countermand  this  order. 
The  surgeon  told  him  that  if  he  sailed  with 
the  regiment  they  would  have  to  bury  him  at 
sea. 

"I  could  not  see  it  in  that  light,,"  said  Colo- 
nel Norton,  "but  told  the  doctor  that  I  was 
going,  and  if  I  died  on  the  passage  I  wanted 
them  to  bury  me  on  the  Mexican  shore,  and 
not  at  sea,  for  I  had  started  for  Mexico,  and 
to  Mexico  1  was  going !  I  gave  my  servant 
twenty  dollars  for  the  woman  who  had 
nursed  me,  and  told  the  boys  to  prepare  the 
litter,  for  I  intended  to  keep  my  promise  with 
them ;  but  instead  of  the  litter  they  mounted 
me  on  the  Colonel's  horse,  with  a  man  walk- 


History  of  the  Bencli  and  Bar  of  California. 


597 


ing  t-ach   sidt-  to   steady  nie.  and   in   that    way 
transported   nic   to   the   ship." 

He  served  through  the  Mexican  War,  and 
the  exciting  scenes  in  which  he  was  the  chief 
actor  were  many.  "Captain  Harvey."  he 
writes,  "was  nominally  in  command  of  our 
company,  but  as  soon  as  we  landed  in  lam- 
pico,  he  called  upon  the  alcalde,  was  a  willing 
recipient  of  his  bounties,  and  imbibed  in  copi- 
ous libations  of  mescal  and  aguardicnta.  Ow- 
ing to  his  immense  capacity,  he  was  carrying 
the  load  of  two  ordinary  men.  and  the  com- 
mand devolved  first  upon  myself,  and  sec- 
ond upon  Lieutenant  Conkling.  Conkling 
and  myself  had  made  our  arrangements  thus: 
We  were  to  establish  a  local  guard  in  the 
town.  I  was  to  take  command  of  a  small 
scouting  party,  and  under  cover  of  night,  ad- 
vance on  the  road  to  Tampico  el  Alto,  while 
Conkling  held  charge  of  the  balance  of  the 
command.  The  local  guard  was  stationed ; 
among  them  was  a  boy  i)y  the  name  of 
Spalding  Lewis;  he  was  a  tall  lad  of  six- 
teen, and  was  determined  to  go  to  Mexico 
with  us  from  St.  Charles.  His  mother  was  a 
widow,  and  1  think  Conkling,  as  well  as 
myself,  promised  the  mother  that  we  would, 
as  far  as  possible,  protect  and  guard  her  son 
from  all  harm.  Well,  when  Spalding  was 
placed  on  guard,  I  directed  him  to  challenge 
all  who  approached  him,  and  stop  them.  But 
said  he,  if  they  will  not  stop,  what  then?  I 
replied,   you  know  your  duty,  stop   them. 

"'Fhc  guard  had  been  .stationed  half  an 
hour.  1  had  my  scouting  party  all  in  line, 
when  I  heard  the  report  of  a  musket.  I  or- 
dered the  scouting  party  on  a  double-quick, 
and  we  soon  reached  tiie  spot  from  wlience 
the  report  proceeded.  There  I  saw  Lewis 
deliberately  ramming  home  his  cartridge.  I 
said.  "SiJal..  what  arc  you  shooting  at?"  He 
quietly  ijoinled  down  the  street,  remarking, 
"That  fellow  came  up:  I  challenged  twice, 
when  he  started  to  run.  and  I  slapped  it  to 
him."  I  looked  in  tin-  direction,  and  .saw  a 
Mexican  lying  on  his  face,  making  some 
feeble  attempts  to  raise  himself.  I  approached 
him.  and  found  that  he  was  shot  through  the 
heart,  and  in  less  than  two  minutes  he  was 
(luite  dead.  1  lianded  him  over  to  the  alcalde, 
assuring  liini  that  unless  he  took  more  i)auis 
and  kept  his  men  within  their  jjroper  limits, 
more  of  them  would  share  a  like  fate.  '1  he 
victim  was  soon  recognized  by  the  police,  and 
the  alcalde  said  it  was  no  loss,  as  (he  fellow 
was  a  notorious  thief  and  cut-throat." 
"On   our   return   to   camp.    T    fnund    Captain 


Harvey,  who  immediately  assumed  command 
of  the  company,  and  wanted  to  know  what 
1  was  going  to  do  with  so  many  men.  I  in- 
formed him  that  I  was  about  complying  with 
the  orders  of  General  Gates,  by  throwing  a 
scouting  party  out  on  the  road  to  Tampico 
el  Alto.  I  had  intended  to  take  thirty  men, 
but  he  blustered  around,  and  said  he  could 
not  spare  so  many  men  from  the  command, 
as  it  would  endanger  its  safety.  But  the  gal- 
lant Captain  had  forgotten  that  I  was  placing 
myself  between  him  and  all  danger.  After 
considerable  wrangling,  it  was  agreed  that  I 
might  take  twenty,  and  1  was  to  select  my 
men.  (  But  my  young  blood  was  up.  and  I 
cursed  him.  and  called  him  a  drunken  cow- 
ard.)" 

He  tells  of  his  critical  meeting  with  a  man 
afterwards  conspicuous  in  California,  in  law 
and  politics  : 

"On  our  arrival  in  Vera  Cruz,  one  of  my 
wagon  masters  came  riding  up  to  me.  bare- 
headed, with  a  deep  sword-cut  in  his  fore- 
head, the  blood  running  down  his  face  and 
neck.  He  saluted,  and  said,  'This,  Captain, 
is  what  I  got  for  obeying  your  orders.'  I 
asked  him  to  explain,  when  he  said  that  he 
was  taking  his  train  of  wagons  to  the  custom 
house  for  distribution,  according  to  my  or- 
ders, when  Captain  Harvey  Lee  rode  up  and 
ordered  the  driver  of  his  company  wagon  to 
l)rcak  the  line  and  drive  immediately  to  his 
(juartcrs.  and  when  the  wagon  master  re- 
sisted his  order,  he  drew  his  sword  and  gave 
him  the  wound  (which  was  a  very  serious 
one).  On  hearing  this  recital.  1  put  spurs 
to  my  hor.se  and  rode  off  in  pursuit  of  Lee.  I 
soon  foimd  him.  and  at  once  denounced  him 
as  ;i  (l.istard  ami  a  coward.  We  both  drew 
and  would  have  settled  the  matter  right 
llure.  l)Ut  for  the  interference  of  a  number 
of  officers  present.  1  then  rode  off  ami  pre- 
ferred charges  against  Lee.  Hut  the  yellow 
fever  had  just  broken  out  in  \'era  Crliz.  and 
the  army  was  n-ady  and  anxious  to  embark 
for  home,  and  the  charges  would  necessarily 
involve  a  trial  which  would  detain  us  and 
other  ofHcers  for  several  days,  and  at  the 
e.irnest  solicitation  of  (he  officers.  1  withdrew 
the  charges  and  allowed  Lee  to  be  discharged 
from  arrest  :  which  was  done  wi(h  great  rc- 
IiKM.nice  on  my  ii.iri.  :is  it  was  ;i  dastardly 
act  on  the  i)art  of  the  C.ipCiin.  1  have  never 
-.ince  heard  of  (he  poor  wounded  wagon 
master,  but  if  he  is  still  alive,  and  (his  should 
liv    chance    meet     his    eye.    he    will     see    that. 


598 


History  of  the  Bench  and  Bar  of  California. 


though  from  the  condition  of  things  I  could 
not  avenge  his  wrongs,  at  least  I  have  not 
forgotten  them.  And  as  to  Captain  Harvey 
Lee,  1  never  saw  him  again  until  I  had  been 
several  years  in  California,  practicing  my  pro- 
fession as  an  attorney,  when  to  my  surprise, 
I  found  that  he  and  myself  were  employed  on 
the  opposite  sides  of  a  case.  I  learned  from 
him  that  he  had  been  practicing  law  in  Beni- 
cia;  and  in  justice  to  the  dead,  I  will  here  say 
that  when  I  called  him  a  coward,  I  did  not 
believe  it  myself.  1  think  he  was  a  brave 
man,  but  with  much  of  the  tyrant  in  his  com- 
position." 

This  is  what  occurred  on  the  march  from 
Contreras  to  Churubusco: 

"I  saw  a  command  of  from  five  hundred  to 
six  hundred  lancers  coming  up  on  a  brisk 
trot,  and  their  leader  bravely  riding  in  advance 
of  the  column.  In  fact,  he  was  so  far  in  ad- 
vance that  I  thought  he  wanted  a  parley.  I 
rode  out  towards  him,  when  he  immediately 
drew  and  charged  out  to  meet  me.  I  drew 
my  saber  and  we  met  about- midway  between 
our  commands,  and,  as  we  advanced,  I  sup- 
pose that  we  were  each  measuring  our  man. 
At  least  I  was  measuring  mine.  He  was  a 
compactly  built  man  of  less  length  of  limb, 
but  rather  higher  than  myself.  He  was 
mounted  on  a  splendid  (and  speaking  com- 
paratively) large  mustang.  I  was  mounted 
on  an  active  American  horse.  We  met.  I  at 
once  discovered  that  our  horses  were  about 
equally  trained,  but,  with  all  my  boasted  skill 
(having  been  trained  in  cavalry  saber  exercise 
by  Lesser  Lebenstein,  the  Pole),  my  antago- 
nist was  the  better  swordsman  of  the  two. 

"His  first  attempt  was  to  cut  my  rein.  Find- 
ing that  I  was  no  novice  in  the  art,  and  I, 
about  the  same  time,  discovering  that  I  had 
more  in  my  man  than  I  had  bargained  for, 
business  commenced  in  earnest.  We  both  held 
ourselves  close  on  our  guard,  while  we  rapidly 
plied  our  cuts  and  parried  with  all  our  skill. 
I  pinked  him  a  little  in  the  right  side  by  an 
interpoint  that  he  had  not  fully  parried,  when 
he  rose  in  his  stirrups,  dealt  me  an  over-hand 
cut,  which  I  had  not  found  laid  down  in  our 
tactics  V hence  I  claimed  it  out).  I  tried  to 
parry,  but  his  blade  followed  mine  down  to 
the  hilt,  severing  my  guards  like  straws,  and 
buried  his  blade  deep  in  my  wrist  and  palm, 
severing  the  cords  and  pulsating  arteries  of 
the  palm,  and  being  heated  by  my  exertions 
in  the  fight,  the  blood  spurted  for  many  feet, 
and  full  in  the  face  of  my  adversary ;  but,  un- 


fortunately for  him,  he  had  buried  his  blade 
so  deep  in  my  guards  that  he  could  not  im- 
mediately withdraw  it,  and  by  suddenly  turn- 
ing my  arm  and  bv  a  rapid  motion  of  my  left 
hand,  retaining  my  rein,  I  seized  my  revolver 
and  opened  fire.  When  I  had  discharged  four 
shots  in  rapid  succession,  such  had  been  his 
exertions  that  he  had  withdrawn  his  blade  to 
within  six  inches  of  the  point.  During  the 
contest,  there  had  been  no  advance,  nor  was 
one  shot  fired  by  either  command;  but  when 
they  saw  his  saddle  empty  a  most  deafening 
shout  went  up  from  my  men.  I  wheeled  my 
horse,  ordered  an  advance,  and  rode  through 
the  lines  to  the  rear.  The  first  volley  from  our 
carbineers  was  at  point-blank  range.  Still  ad- 
vancing and  drawing  their  holster  pistols,  they 
literallj'  fired  into  the  enemies'  faces,  while 
they  were  blazing  away  with  their  old  esco- 
pets  with  but  slight  damage  to  my  command, 
and  by  the  time  we  came  to  the  saber,  the  foe 
was  in  rapid  but  demoralized  retreat.  My 
boys  would  have  pursued  their  advantage  fur- 
ther but  I  did  not  allow  them  to  do  so,  as  my 
duty  only  extended  to  the  protection  of  my 
train.  As  it  was,  I  never  saw  as  many  men 
Iwrs  du  combat  for  the  length  of  time  and 
numbers  engaged,  the  whole  afifair  after  their 
leader  fell,  not  occupying  more  than  ten  min- 
utes ;  but  I  could  no  longer  keep  my  saddle, 
and  was  borne  to  the  rear,  when  it  was  dis- 
covered, from  the  great  loss  of  blood,  that 
they  could  not  take  up  the  arteries,  and  the 
surgeon  was  compelled  to  give  me  alcohol 
to  raise  a  pulse  so  as  to  enable  him  to  take 
them  up.  It  was  found  on  exammation  that 
twenty-seven  of  the  enemy  were  dead  on  the 
field,  besides  fifty-two  wounded  prisoners. 
And  thus  ended  the  hottest  little  time  I  ever 
experienced  in  Mexico." 

But  his  experiences  were  diversified,  and 
now  "grim-visaged  war  hath  smoothed  his 
wrinkled  front,  .  .  and  capers  nimbly  in  a 
lady's  chamber  to  the  lascivious  pleadings  of 
a  lute."  Across  the  street  from  the  Captain's 
quarters  in  the  city  of  Puebla,  lived  an  aristo- 
cratic Castillian,  Queretaro,  President  of  the 
Mexican  senate,  absent  on  official  business. 
His  son  Edwardo,  fourteen  years  old,  became 
attached  to  the  bold  American  officer: 

He  was  very  expert  witli  the  lasso,  and 
we  amused  ourselves  hours  at  a  time  by  his 
throwing  the  lasso  and  by  attempting  to  guard 
against  it  with  my  saber ;  but  I  must  say  I 
found  it  impossible  to  parry  and  i)rotect  my- 
self against  his  skill.  He  would  sometimes 
catch  me  around  my  neck,  and  if  I  happened 


History  of  the  Bench  and  Bar  of  California. 


59'.) 


to  step,  perhaps  he  would  catch  me  by  the 
foot ;  and.  when  all  other  parts  were  guarded, 
he  would  frequently  catch  me  by  the  sword- 
arm. 

"Things  continued  in  this  way  about  three 
weeks,  only  Edwardo  became  so  attached  to 
me  that  he  was  with  me  two-thirds  of  the 
time.  At  length  he  became  very  solicitous  that 
I  should  visit  him.  I  assured  him  that  I  could 
not  on  his  invitation,  as  I  was  an  entire 
stranger  to  his  family;  but  before  this  time 
he  had  told  me  the  family  at  home  was  com- 
posed of  his  mother,  a  sister  nine  years  old, 
and  his  Aunt  Amelia,  who  was  twenty  years 
old.  In  three  or  four  days  after  this,  Ed- 
wardo told  me  his  aunt  wished  me  to  visit 
them.  1  told  him  if  1  visited  their  house  the 
invitation  must  come  from  his  mother.  The 
next  day  he  informed  me  that  his  mother 
wished  me  to  visit  them.  Consequently  I  re- 
solved to  do  so,  as  I  could  not  doubt  that  they 
were  ladies  and  moved  in  the  best  society.  I 
took  my  interpreter  and  went  over,  and  was 
introduced  by  the  bo}'  to  his  mother  and  aunt, 
as  his  friend.  I  remained  an  hour  and  was 
delighted  with  the  ladies :  but  it  was  hard  to 
tell  who  were  the  most  disgusted  with  my 
interpreter,  the  ladies  or  myself.  He  all  the 
time  indulged  in  a  twaddle  about  himself,  and 
failed  to  interpret  one-half  of  what  we  wished 
to  say  to  each  other.  When  the  time  came 
for  leave-taking,  they  warmly  insisted  on  my 
coming  again,  and  in  these  words,  that  the 
house  was  mine.  In  return,  I  assured  them 
that  I  would  avail  myself  of  their  kind  invi- 
tation, and  that  I  should  bring  no  interpreter, 
but  that  they  should  all  act  as  my  interpreter. 

"In  the  first  interview  they  asked  me  if  I 
was  married,  and  I  assured  them  that  I  was. 
But  the  next  day  Edwardo  asked  the  same 
question  of  Lieutenant  Conkling  and  of  other 
officers ;  they,  supposing  that  they  were  play- 
ing into  my  hand,  assured  him  that  I  was  not 
married,  and  was  onlv  joking  with  them  when 
I  pretended  to  be  married.  So  when  I  called 
again,  several  days  afterwards,  I  was  warmly 
received  by  the  whole  family,  and  more  espe- 
cially so  by  Miss  Amelia,  who  took  upon  her- 
self the  task  of  teaching  me  to  speak  their 
language,  and  no  one  ever  had  a  more  zealous 
teacher.  I  would  frequently  get  off  some 
Mexican  phrases,  when  she  would  check  me 
and  say,  "Este  no  hiissiia;  csfc  lingua  lotros 
indii."  Time  rolled  on,  and  somehow  when 
not  on  duty  I  found  myself  with  my  friends 
most  of  the  time.  I  was  not  slow  to  learn 
that  my  little  Amelia  was  becoming  very  fond 


of  mc,  and,  in  fact,  loo  fond  for  her  own  peace 
of  mind.  I  often  said  to  her,  'You  must  not 
be  too  fond  of  me,  for  I  have  a  wife  at  home.' 
She  only  laughed  at  me,  and  said  that  she  had 
caught  me  at  my  trick;  that  I  was  not  mar- 
ried; for  all  the  officers  said  so;  that  I  was 
only  fooling  her.  I  found  it  impossible  to 
convince  the  poor  girl  against  her  will ;  there- 
fore things  went  along  in  their  own  way. 

"Amelia  was  pretty.  She  was  of  medium 
height,  well  formed,  w^ilh  a  light  and  elastic 
step.  In  complexion  she  was  a  blonde,  with 
a  full,  deep  blue  eye,  and  as  fair  as  a  lily ;  but 
I  do  not  pretend  to  dwell  on  her  perfection 
further  than  to  aistinguish  her  from  the 
"greaser"  horde.  I  had  introduced  her  to  a 
few  superior  officers,  and  it  was  amusing  to 
me  to  hear  Amelia's  perfections  set  forth  by 
them.  The  Spanish  are  a  very  jealous  race, 
and  she  seemed  to  think  I  would  be  of  the 
same  organization ;  for  she  would  pass  the 
open  window  or  step  to  the  blinds  every  min- 
ute during  her  call,  for  fear  I  might  be  jealou.s 
of  her.  During  our  acquaintance  I  fell  ill. 
When  they  heard  the  fact  they  sent  Edwardo 
over  to  my  quarters  and  insisted  that  I  should 
come  to  their  house,  where  I  could  have  better 
attention  than  I  could  at  my  own  quarters.  I 
finally  complied  with  their  wishes,  and  was 
with  them  for  over  three  weeks,  and  though 
Amelia  was  waited  upon  by  her  own  servants, 
she  would  not  allow  a  servant  to  wait  upon 
me.  Everything  that  I  needed  came  from  her 
own  hand. 

"As  I  convalesced,  one  morning  I  took  a 
walk  in  the  Passo,  and  had  a  little  chat  with 
an  early  walker,  who,  as  well  as  myself,  was 
out  to  take  the  air.  She  was  a  young  Mexican 
girl  of  the  better  class.  She  arranged  a  but- 
ton-hole bouquet  and  pinned  it  on  the  breast 
of  my  uniform.  On  my  return  I  met  Amelia, 
and  as  soon  as  she  saw  the  flowers  her  eyes 
flashed  with  fury.  She  sprang  to  my  breast 
like  a  tigress,  seized  the  flowers,  dashed 
them  to  the  floor,  stamped  them  beneath 
her  little  feet,  and  exclaimed  in  her  own 
language,  'You  have  no  love  for  me.'  She 
seized  her  diamond-headed  stiletto,  passed  it 
lo  me  and  exclaimed,  ■Jlero  ;  kill  me  ;  I  have 
nothing  to  live  for.'  I  finally  got  her  quieted 
down  and  asked  her  what  she  meant ;  that  I 
was  not  conscious  of  having  done  anything  to 
offend  her  or  any  injustice  to  her.  She  said 
that  a  woman  had  placed  those  flowers  on  my 
breast.  I  admitted  it,  but  assured  her  that  I 
gave  the  matter  no  consideration,  and  did  not 
know  that  it  meant  anything  more  than  a  little 


600 


History  of  the  Bench  and  Bar  of  California. 


coquetry.  But  I  then,  for  the  first  tune,  learned 
that  the  Spanish  language  of  flowers  is  more 
read  and  better  understood  than  ours. 

"After  1  had  quite  recovered  my  health,  and 
was  about  to  return  to  my  own  quarters,  1  told 
her  tliat  they  had  been  at  a  large  outlay  for 
me.  and  1  wished  to  compensate  them  for  my 
trouble  and  expense  while  there.  Amelia 
treated  my  offer  with  contempt  and  scorn  at 
first,  but  soon  changed  to  a  flood  of  tears,  and 
assured  me  that  money  was  the  least  of  her 
care :  that  she  had  plenty  of  money  ;  she  threw 
me  her  keys,  saying,  'Here  are  the  keys  to 
my  cofl'er  :  if  you  want  money,  help  yourself: 
1  do  not  want  yours;  I  did  not  take  care  of 
you  for  money.'  She  was  an  heiress ;  she  and 
her  brother  owned  three  large  haciendas,  and 
one  fine  day  she  asked  me  to  visit  one  of  them 
with  her.  I  entered  one  of  their  clumsy  car- 
riages, and  we  drove  out  there.  1  was  anuised 
and  yet  perplexed  at  her.  for  all  that  was  to 
be  seen  or  enjoyed  was  us  and  ours.  The 
place  was  a  lovely  one;  the  buildings  were 
magnificent,  situated  upon  a  lovely  plateau  of 
about  one  thousand  acres.  They  were  of 
adobe,  ccmtaining  an  inner  court  with  plats 
of  grass  and  fountains  inside.  The  whole  was 
inclosed  with  a  high  adobe  wall,  with  broken 
glass  cemented  in  the  top.  which  all  the  way 
around  inclosed  the  premises.  This  was  for 
])rotection  against  the  assaults  of  ladrones  and 
guerrillas.  It  was  just  the  place  where  a  man. 
with  that  beautiful  creature,  might  content 
himself  to  while  away  a  life-time.  She  wished 
me  to  visit  her  other  two  liacicncias;  but  1 
never  went  out  to  see  them.  The  whole  fam- 
ily were  good  and  kind  people  to  me,  and  at 
the  close  of  the  war,  when  the  order  came 
for  us  to  take  up  our  line  of  march,  I  hardly 
knew  how  to  break  the  news  to  \melia ;  for 
the  four  months  of  our  acciuainlance  seemed 
to  her.  so  she  told  me.  to  be  as  one  bright  vis- 
ion. But  alas!  the  parting  had  to  come.  I 
left  my  Amelia  in  her  sister-in-law's  arms,  in 
a  swoon,  and  have  never  seen  nor  heard  of 
her  from  that  day  to  this;  but  think  not  that 
I  left  her  without  a  pang  of  retnorse.  not  for 
any  perfidy  on  my  part,  for  I  never  deceived 
her.  but  my  principal  regret  was  that  she  loved 
me  so  fondly." 

We  will  let  this  (k-lightful  but  pathetic  scene, 
so  well  pictured,  curtain  our  hero's  after  w^ar- 
fare.  But  when  the  war  ended,  and  he  re- 
turned to  his  home  in  Illinois,  he  very  soon 
had  as  stubborn  a  fight  and  as  close  a  call  as 
any  he  had  experienced  in  Mexico  or  Canada. 
Let   him   tell   it: 


"l  made  the  accjuaintance  of  a  young  fellow 
by  the  name  of  Frederick  Lord,  a  son  of  Dr. 
Lord:  1  think  I  was  about  one  year  his  se- 
nior. It  was  the  custom  of  that  country  every 
Saturday  afternoon  to  meet  on  the  common 
and  wrestle,  and  all  who  ever  knew  me  in  my 
younger  days  can  testify  that  1  was  an  expert 
wrestler:  in  fact.  1  threw  all  the  young  men 
in  tiiat  vicinity.  1  was  light,  but  tall  and  very 
active.  On  the  other  hand,  Fred  Lord  was  a 
powerfully  built  young  fellow,  but  with  my 
skill  and  action  1  could  always  handle  him. 
Our  acquaintance  extended  over  a  period  of 
more  than  ten  years.  When  Fred  had  matured 
he  was  a  perfect  giant,  standing  si.x  feet  six 
inches  and  weighing  two  hundred  and  sixty 
pounds  ;  and  for  about  tour  or  five  j-ears  be- 
fore the  Mexican  War  he  had  been  bullying 
Iiis  way  through  the  world  to  that  extent  that 
lie  had  become  the  terror  of  several  counties. 

"After  I  had  taken  my  departure  for  the  seat 
of  war.  Fred  volunteered  and  went  out  as  :i 
private  :  and  owing  to  his  natural  insubordina- 
tion, he  had  been  frequently  ptinished.  and 
had  imbibed  such  a  hatred  to  army  oflicers 
that  when  he  returned  home  he  declared  that 
he  had  whipped  every  officer  of  the  army  in 
]\Iexico  that  he  had  met  after  the  disbanding 
of  the  troops,  and  he  intended  to  whip  Nor- 
ton and  Conkling  (one  of  my  Lieutenants, 
who  lived  in  St.  Charles),  and  then  he  would 
be  satisfied ;  Fred  and  I  had  always  been 
friendly,  and  there  was  no  cause  for  the  threat. 
But  when  it  was  reported  to  me,  I  sent  him 
word  that  he  had  better  commence  on  me.  as 
1  was  the  smaller  of  the  two.  and  perhaps 
when  he  had  whipped  me  he  might  not  want 
to  attack  the  other. 

"It  was  Monday  morning,  and  the  Circuit 
Court  of  Kane  county  was  to  commence  its 
session  that  day.  The  Geneva  Hotel  was 
packed  with  ])eo])le,  and  about  8  o'clock  1 
walked  over  to  the  hotel  to  get  my  morning 
•cocktail.'  1  met  J.  Y.  Scammonds  (author 
oi  "Scammonds"  Reports")  and  an  eminent 
attorney  from  Chicago,  by  the  name  of  Brown. 
.\fter  some  conversation,  Scammonds  asked 
nie    if    I    made    the    acquaintance    of    General 

Taylor  ( the  men  were  canvassing  for  Tay- 
lor). 1  informed  them  that  I  had.  They 
a>ked  me  when  I  had  last  seen  him.  I  replied 
tiiat   1  left  Taylor  at  the  St.  Charles  Hotel  in 

Xew  Orleans,  on  the  29th  of  June  last.  Just 
as  I  made  the  reply.  Fred  Lord  stepped  out 
of  the  parlor,  where  he  had  been  carrying  on 
a  flirtation  with  some  girls,  and  said,  "Where 


History  of  the  Bench  and  Bar  of  California. 


601 


do  you  say  you  saw  General  Taylor  last .'''  I 
repeated,  'In  New  Orleans,  on  the  29th  of 
June  last.'  He  said,  'General  Taylor  was  not 
in  New  Orleans  on  the  29th  of  June  last.'  I 
replied,  'Permit  me  to  tell  you,  you  are  a  liar, 
sir!'  At  this  he  sprang  upon  me  and  struck 
at  me. 

"I  attempted  to  fend  the  blow,  and  at  the 
same  time  threw  my  foot  back  to  kick  him ; 
but  his  arm  was  so  heavy  and  the  blow  so 
powerful  that  I  did  not  entirely  escape.  He 
struck  the  upper  part  of  my  forehead,  my  head 
striking  some  one  in  the  crowd.  Bringing 
my  foot  back  to  kick  him  threw  me  from  my 
balance  and  made  it  a  very  pretty  knock-down. 
But  it  was  of  such  a  nature  that  it  did  not 
in  the  least  stun  me.  He  knew  that  if  he 
whipped  me  he  must  work  lively,  and  at  once 
bent  over  me.  and,  thrusting  his  liand  in  my 
face,  attempted  to  gouge  my  eye  out.  His 
thumb  nail  missed  my  eye,  but  cut  my  eye- 
brow. At  this  I  grabbed  his  neck-tie  with  my 
left  hand,  took  a  twist  and  sprang  up,  raising 
him  with  me,  and  when  we  struck  the  floor 
again  it  was  fourteen  feet  (by  measurement^ 
distant  through  the  crowd. 

"I  retained  my  grip  on  his  throat,  coming 
on  top  of  him;  but  he  had  thrown  his  immense 
legs  tight  about  my  loins,  and  had  clutched 
both  hands  tight  in  my  hair,  where  he  held 
me  as  in  a  vise,  while  my  right  hand  was  at 
liberty  until  it  was  all  stove  up.  (I  remember 
they  applied  oil  of  wormwood  after  the  light, 
to  take  the  swelling  out.)  Finally  I  thought 
to  myself,  I  can't  get  to  strike  your  face  to 
spoil  that,  but  1  will  mark  you  anyway.  So 
I  reached  up  and  clawed  down  his  face  a 
couple  of  times.  It  looked  very  badly  for  a 
while.  At  this  stage  of  the  game  1  found  his 
hands  getting  very  loose  in  my  hair,  and  some 
one  in  the  crowd  said,  'Take  Norton  off ;  see 
how  black  Fred  is  in  the  face,'  when  a  man 
by  the  name  of  McMear  cauglit  a  fire-poker 
and  declared  that  he  would  kill  the  first  man 
who  interfered ;  that  Norton  could  whale  Fred 
the  best  day  he  ever  saw.  (Fred  had  once 
pounded  McMear  very  badly.)  I  continued  to 
choke  him ;  his  hands  and  legs  had  become 
quite  loose,  and  T  was  about  to.  spring  from 
him  and  stamp  him  to  ])icces.  when  old  Uncle 
Jimmie  Brown,  the  landlurd  (wlioni  no  one 
would  strike),  exclaimed.  "Take  liim  olT,  he 
is  killing  the  man.' 

"At  this  the  crowd  concluded  to  release 
Fred.  They  caught  hold  of  me  and  in  at- 
tempting to  pull  me  off  they  pulled  Fred  up 


to  a  sitting  posture,  but  could  not  get  my  hand 
free  from  his  neck-tie ;  so  they  procured  a 
knife  and  cut  the  tie,  and  after  throwing  a  few 
pails  of  water  over  him,  he  came  to,  and 
evinced  himself  satisfied.  Though  a  powerful 
man  myself,  I  look  upon  my  victory  as  a  mere 
accident,  as  I  could  not  compare  with  him  in 
physical  powers.  But  the  accident  had  its 
effect.  I  have  many  times  been  in  a  crowd 
and  have  heard  men  say,  "That  is  the  man 
who  whipped  Fred  Lord.' 

"In  this  connection  1  may  add  that,  after  a 
time,  Fred  made  his  way  out  to  the  Missouri 
river,  and,  at  Traders'  Point,  married  a  French 
lady  who  was  possessed  of  quite  a  fortune ; 
but  he  soon  went  through  with  that,  and  when 
I  was  on  my  way  to  California  I  stopped  a 
few  days  with  my  brother,  who  lived  but  a 
short  distance  from  Traders'  Point,  and  he 
and  Fred  were  very  good  friends.  My  brother 
told  me  that  Fred  was  at  the  Point,  and  was 
in  company  with  a  big  half-breed  Indian  burn- 
ing lime ;  that  he  had  often  expressed  a  desire 
to  see  me.  saying  that  I  had  served  him  right, 
for  he  had  no  cause  of  quarrel  with  me.  So 
I  finally  decided  to  go  down  to  the  Point  with 
my  brother  and  call  on  Fred. 

"When  we  arrived  at  the  Point  and  inciuired 
for  him.  some  of  his  crowd  said  he  had  been 
gambling  the  night  before  and  was  across  the 
street  taking  a  sleep.  I  went  over,  the  crowd 
following  me.  (I  suppose  my  brother  had 
told  them  al)out  the  affair.)  I  found  him  fast 
asleep,  and  as  I  walked  up  to  him.  he  looked 
like  a  great  giant.  He  was  dressed  in  buck- 
skin, in  regular  frontiersman  style,  with  a  re- 
volver and  knife  in  his  belt.  I  .shook  him  and 
called  out,  'Fred.'  He  awoke,  looked  me  full 
in  the  face  and  exclaimed.  "Lew  Norton,  l)y 
G — d !'  He  sprang  to  his  feet,  took  me  by 
tlie  Iiand.  and  said.  'Here.  boys,  is  the  only 
man  tliai  ever  whaled  me;  and  no  man  ever 
deserved  il  more  llian  1  did:  let's  go  and  take 
a   drink." 

"I  pursued  my  journey  to  California,  l)ul 
not  more  tli.m  lliree  weeks  after  tlie  occur- 
rence ;il)ove  narrated.  i'"red  got  into  a  (|uarrel 
with  and  whipped  his  half-breed  partner.  The 
next  day  afterward,  as  he  was  hauling  lime- 
stone to  ilu-  kiln,  tlie  lialf-breed  secreted  him- 
self in  the  brush  ne.ir  the  road,  with  an  old- 
fashioned  \'ager,  and  when  Fred  had  got  past 
hini  he  tired,  tearing  an  enormous  hole 
through  the  vit;tls  of  iiis  vieiini.  Fred  turned 
his  head  and  exclaimed,  "U— n  you,  I  would 
make  you  pay  for  that  if  I  could  live  an  Iiour.' 


602 


History  of  the  Bench  and  Bar  of  California. 


He  then  fell  over  on  his  load  and  expired  in  n 
few    minutes." 

Pending  the  seltlenicnl  of  his  accounts  as 
quartermaster  with  the  government,  Captain 
Norton  entered  on  the  study  of  law  in  the 
office  of  W.  D.  Barry,  iisq.,  at  St.  Charles, 
Illinois.  He  was  admitted  to  the  bar  of  the 
Supreme  Court  of  tliat  State,  in  due  course 
and  shortly  afterwards  set  out  with  a  parly 
bound  fnr  California  across  the  plains,  he 
being  in  command.  He  reached  Placerville 
in  September,  1852.  After  mining  for  some 
months,  with  a  good  deal  of  success,  he  went 
to  San  Francisco,  bought  a  law  library  (Colo- 
nel E.  D.  Baker  and  Judge  J.  B.  Crockett  as- 
sisting him  in  the  selection),  and  began  the 
practice  at  Placerville.     It  was  1853. 

In  the  summer  of  1855,  when  that  part  of 
Utah  Territory,  which  is  now  Nevada,  was 
organized  into  a  judicial  district,  with  W.  W. 
Drummond  as  United  States  Judge,  and  Or- 
son Hyde,  the  Mormon  elder,  as  Probate 
Judge,  the  last-named,  a  cultured  man  of  some 
fine  qualities,  crossed  over  the  Sierra  to  Pla- 
cerville and  prevailed  on  Captain  Norton  to 
accept  the  office  of  district  attorney  of  the 
new  settlement. 

On  the  5th  of  July,  while  he  was  arguing  a 
cause  before  Judge  Drummond,  some  one  in- 
terrupted him  to  say  that  Placerville  had  been 
wiped  out  by  fire.  He  owned  an  entire  block 
of  buildings  and  a  residence  in  that  city,  and 
only  the  residence  was  saved.  His  wife,  who 
had  remained  in  Placerville,  rescued  his 
librar}-.  He  rebuilt,  but  soon  became  satisfied, 
to  employ  his  own  words,  "that  every  blov 
struck  in  a  mining  county  helped  to  exhaust 
the  native  wealth  of  the  county,  while  each 
blow  struck  in  an  agricultural  county,  helped 
to  increase  its  wealth." 

In  the  fall  of  1857.  he  settled  at  Healdsburg. 
Sonoma  county.  There  he  passed  the  length- 
ened span  of  his  subsequent  career,  and  he 
often  wrote  in  panegyric  of  the  natural  beau- 
ties and  unfailing  productiveness  of  that  re- 
gion. We  will  let  him  tell  of  his  first  case 
there  ;  of  the  good  fortune  that  it  led  to,  and 
personal  perils  that  continued  to  follow  him. 

"The  first  case  in  which  I  w^as  engaged  was, 
The  People  of  the  State  of  California  vs. 
Charles  P.  McPherson,  charged  with  an  as- 
sault with  a  deadly  weapon.  I  was  employed 
on  the  defense,  and  one  James  Reynolds  (now 
dead)  was  prosecutor.  The  justice,  instead 
of  sitting  as  a  committing  magistrate,  took 
jurisdiction  of  the  case  to  try  it.     I   did  not 


demur  to  the  jurisdiction  of  the  court.  The 
evidence  disclosed  the  fact  tiiat  my  client  had, 
in  the  town  of  Geyserville,  struck  the  com- 
plaining witness  with  a  small  stick,  about  one 
inch  in  diameter;  but,  unfortunately,  there 
was  a  large-sized  splitting  chisel  at  one  end 
of  it.  used  for  splitting  iron  in  a  blacksmith 
siio]).  I  convinced  the  jury  that  it  was  not 
among  the  deadly  weapons  described  in  the 
statute,  and  my  man  was  acquitted  on  that 
charge,  but,  under  the  advice  of  his  counsel, 
McPherson  pleaded  guilty  to  an  assault  and 
battery.  Receipts  of  first  month's  practice, 
thirty  dollars. 

"About  this  time  a  gentleman  stepped  into 
the  office  and  introduced  himself  as  Egbert 
Judson,  of  San  Francisco,  and  said:  T  am 
part  owner  and  agent  of  the  new  Sotoyome 
Rancho.  The  ranch  is  covered  with  redwood 
limber,  and  is  only  valuable  for  the  timber, 
and  I  am  being  robbed  by  more  than  a  hun- 
dred trespassers,  who  arc  cutting  down  and 
carrj'ing  away  my  limber  in  lumber,  pickets, 
shakes,  rails,  and  for  other  uses.  The  entire 
valley  has  been  and  is  being  fenced  from  my 
land.  I  started  up  here  to  see  if  I  could  do 
anything  to  save  it.  I  staled  my  object  to 
Colonel  S.  H.  Fitch,  on  the  boat  coming  up, 
and  told  him  that  I  was  going  to  see  if  I  could 
employ  some  attorney  in  Santa  Rosa  who 
would  try  and  save  my  property.  He  replied 
that  the  man  I  wanted  was  in  Healdsburg, 
that  he  knew  you  well,  having  served  through 
the  Mexican  War  with  you,  and  if  you  under- 
took it  you  would  accomplish  it  or  die  try- 
ing. He  at  the  same  time  remarked  that  the 
sfjualters  were  a  set  of  desperate  men,  and 
that  he  expected  they  would  kill  any  one  who 
should  attempt  to  stop  their  trespassing.  I 
told  him  that  his  assurances  were  truly  re- 
freshing, nevertheless,  for  a  reasonable  con- 
sideration. I  would  undertake  it.  After  hav- 
ing fixed  on  a  compen.sation,  I  said:  'Go  back 
to  San  Francisco;  you  are  afraid  of  these  men, 
and  within  two  weeks  you  will  find  your 
worse  fears  realized,  or  I  will  be  in  posses- 
sion of  your  land." 

"Judson  returned  to  San  Francisco,  and  I 
was  in  somewhat  of  a  quandary  how  to  com- 
mence my  task,  being  fullj^  alive  to  the  magni- 
tude of  the  undertaking;  I  was  aware  that 
about  a  month  before  my  arrival  in  Healds- 
l)urg,  a  mob  had  taken  and  destroyed  the  field 
notes  of  Surveyor-General  Tracy,  gave  him 
four  hours  to  leave  or  hang,  and  that  a  like 
mob   had   chased   Dr.    L.    C.   Frisbie,   he   only 


History  of  tJic  Bench  and  Bar  of  California. 


603 


escaping  by  being  mounted  on  a  fleet  horse, 
and  from  the  known  character  of  some  with 
whom  I  had  to  deal,  I  could  scarcely  hope  to 
come  out  of  the  contest  alive.  First,  I  thought 
I  had  better  commence  in  the  district  court 
and  call  to  my  aid  a  sheriff's  posse  comitatus, 
and  again  I  feared  that  that  course  would  in- 
duce the  trespassers  to  think  that  I  was  per- 
sonally afraid  of  them;  but  a  notice  from 
them  two  days  after  my  appointment,  decided 
my  course  of  action. 

"The  notice  which  I  received  informed  me 
ihal.  if  I  dared  to  show  mj'self  in  the  red- 
woods, I  should  be  hanged  to  the  first  tree. 
Accordingly,  next  day,  I  loaded  myself  down 
with  iron  and  steel,  got  a  horse,  and  started 
for  the  redwoods  alone,  having  previously 
learned  that  their  leader  was  a  six-foot-and-a- 
half  Irishman,  a  perfect  giant,  by  the  name  of 
of  McCabe,  who  would  sally  forth  from  his 
mountain  hiding-place,  come  to  Healdsburg, 
get  half  drunk,  whip  out  the  town,  and  return 
to  the  redwoods,  where  he  had  his  family. 
On  my  approach  to  the  redwoods,  I  inquired 
for  McCabe's  shanty,  and  on  reaching  it  I 
found  him  seated  on  his  shaving-horse  making 
shingles.  I  dismounted,  hitched  my  horse, 
advanced  toward  him,  and  said,  "Is  your  name 
McCabe?'  He  replied  in  the  affirmative.  I 
added,  'Fighting  McCabe?'  'They  call  me  so 
sometimes.'  I  then  said,  'Well,  sir,  I  am  that 
detested  Judson's  agent  that  you  propose  to 
hang  to  the  nearest  limb,  and  have  come  to 
surrender  myself  for  execution ;  my  name  is 
Norton.'  He  dallied  a  moment  with  his  draw- 
ing knife,  and  then  said,  'Suppose  we  carry 
our  threat  into  execution?'  I  made  answer 
that  no  doubt  they  had  force  enough  in  the 
woods  to  do  it,  but  there  would  be  some  of 
them  that  would  not  be  worth  hanging  by  the 
time  it  was  done.  He  then  queried,  'Well, 
Norton,  what  do  you  propose  to  do  with  us?' 
I  replied,  'Mack,  I  intend  to  put  every  devil 
of  you  out  of  the  woods,  unless  you  carry 
your  threat  into  execution.'  He  was  silent 
for  a  minute,  then  said:  'Well,  you  look  and 
act  as  if  you  meant  all  you  say.'  I  answered, 
'I  mean  every  word  of  it.'  'Well,'  said  he,  'in 
case  I  leave,  how  long  will  you  give  a  fellow 
to  get  off  with  his  stealings?'  I  said,  'How 
long  do  you  want.  Mack?'  He  replied,  'A 
week  or  ten  days.'  I  asked,  'Is  two  weeks 
sufficient?'  He  replied,  'It  is.'  'Will  you  leave 
at  that  time?'  'I  will.'  I  said,  'That  is  enough 
between  gentlemen.'  Mack  left  according  to 
agreement. 

"I  then  went  out  into  the  woods  where  the 


axes  were  cracking  on  every  side,  some  chop- 
ping, some  splitting  rails,  others  sawing  bolts : 
in  fact,  it  was  a  busy  place.  When  I  ap- 
proached them  I  asked  what  they  thought 
they  were  doing  there,  if  they  did  not  know 
they  were  trespassers?  They  wanted  to  know 
who  I  was  and  what  business  I  had  there.  I 
answered,  'I  am  the  agent  of  Egbert  Judson, 
the  owner  of  this  land  and  timber,  and  I  for- 
bid you  to  cut  another  stick,  and  intend  to 
make  you  pay  for  the  trespass  already  com 
mitted.  They  commenced  to  gather  around 
me.  using  the  most  insulting  language;  one  of 
them,  pointing  to  a  large  limb  on  a  spreading 
oak,  said,  'We  will  give  you  just  two  minutes 
to  get  out  of  this,  and,  unless  you  are  gone 
by  that  time,  we  will  string  you  up  to  that 
limb.'  I  drew  a  revolver  and  cocked  it,  and 
told  them  to  keep  their  distance,  that  I  would 
kill  the  first  one  that  attempted  to  advance.  I 
then  asked  them  to  give  me  their  names,  as  I 
intended  to  prosecute  them,  each  and  every 
devil.  They  gave  me  a  laughable  list,  which  I 
will  not  attempt  to  copy  here.  After  inform- 
ing them  that  they  were  a  set  of  cowardly 
scoundrels  and  not  a  gentleman  in  the  crowd, 
I  left  them  and  returned  to  Healdsburg. 

"Johnson  Ireland  was  the  justice  of  the 
peace,  and  a  firm,  positive,  honest  man ;  and 
being  satisfied  that  I  could  trust  him,  I 
brought  about  a  hundred  suits,  using  all  the 
aliases  I  could  think  of,  placed  the  papers  in 
the  hands  of  an  officer,  with  instructions  to 
serve  on  all  he  could  find  in  the  woods,  except 
my  Irish  giant,  and  to  obtain  their  real  names 
if  possible.  The  actions  were  for  trespass 
upon  personal  property,  for  taking  and  carry- 
ing away  posts,  rails,  pickets,  etc.  I  think 
the  officer  got  service  on  sixty-two  persons. 
The  cases  were  set  for  hearing  at  12  o'clock 
noon.  The  parties  did  not  arrive  in  time,  and 
I  took  a  default  against  the  crowd;  but  at  2 
o'clock  in  the  afternoon  of  the  same  day,  as  I 
was  seated  in  my  office  (which  was  on  the 
second  floor  over  a  store  on  West  street),  con- 
versing with  a  friend,  I  heard  some  one  hal- 
looing on  the  street.  I  walked  to  the  balcony 
and  saw  that  the  street  was  crowded  with 
men. 

"Their  spokesman  called  out,  'Well,  old  fel- 
low, there  is  a  friend  of  mine  up  in  the  red- 
woods who  wants  to  compromise  with  you.' 
I  inquired  his  friend's  name.  He  replied : 
'D — n  you,  if  you  want  his  name  find  it  out 
the  way  you  did  ours.'  I  said.  'It  is  very 
unkind  in  you  not  to  give  your  friend's  name, 
but   as   the   business   of  the  day   is  over   with 


604 


History  of  the  Bench  and  Bar  of  California. 


me.  I  will  attend  to  it :  1  think,  however,  you 
are  mistaken  in  your  man ;  it  is  not  Norton 
you  are  hunting ;  it  is  Surveyor-General  Tracy, 
or  Dr.  Frisbie  that  you  are  after;  but  as  you 
will  not  give  me  your  friend's  name.  I  will 
accompany  you,  two  of  you,  or  three  of  you, 
or  I  will  go  with  your  crowd ;  or  I  will  be 
fairer  still.  I  will  agree  to  come  down  there 
and  whale  any  one  of  you  so  blind  that  your 
wife  will  not  know  you  when  you  get  home 
again.  1  know  your  kind  better  than  you  know 
yourselves.'  Instead  of  rushing  for  me,  as 
my  friend  had  anticipated,  they  commenced 
gathering  in  knots,  and  at  the  end  of  an  hour 
there  was  not  one  of  them  on  the  street.  Thus 
ended  their  first  and  last  attempt  to  mob  me. 

"My  next  adventure  was  in  removing  squat- 
ters from  the  east  side  of  Russian  River.  Jud- 
son  had  sent  a  man  by  the  name  of  A.  J.  Soules 
with  a  flock  of  sheep  on  his  own  land  on 
the  Sotoyome  Rancho,  to  pasture.  The  squat- 
ters (numbering  sixteen  families)  went  and 
removed  Soules  and  the  sheep  from  the  grant, 
admonishing  him  that  it  would  not  be  safe 
to  return.  Judgment  in  ejectment  was  ob- 
tained against  those  men  in  the  federal  court 
at  San  Francisco,  but  no  one  had  dared  to 
attempt  to  enforce  it.  Having  been  successful 
in  drivjng  the  trespassers  from  the  redwoods, 
Judson  came  to  the  conclusion  that  perhaps 
I  might  gain  possession  of  his  other  land. 
After  consultation.  I  directed  him  to  send  me 
a  deputy  from  the  United  States  marshal's 
ofiicc,  with  the  writs  of  ejectment,  which  he 
did.  We  went  over  to  the  field  of  our  new 
labors  about  five  o'clock  in  the  evening,  having 
previously  sent  them  notice  of  my  intention 
to  remove  them  unless  they  would  enter  into 
a  lease,  and  recognize  our  title.  We  found 
them  all  at  the  house  where  we  proposed  to 
commence,  all  armed  with  knives  or  pistols. 
Over  an  hour  was  consumed  in  trying  to  get 
the  party  to  sign  a  lease,  but  to  no.  purpose, 
xne  evening  was  chilly,  and  I  could  not  think 
of  throwing  a  woman  and  small  children  out 
at  that  time  of  the  evening.  Accordingly.  I 
told  them  that  I  would  be  there  at  eight  o'clock 
the  following  morning  to  put  them  out.  At 
the  appointed  hour  we  were  on  hand,  ami 
found  them  all  there.  I  again  tendered  the 
lease,  which  was  refused.  I  cocked  my  re- 
volver, took  my  position  in  the  gateway,  and 
directed  the  marshal  to  throw  the  goods  out 
of  the  house,  which  he  proceeded  to  do.  They 
made  a  demonstration  as  though  they  intended 
to  make  a  rush.  I  warned  them  to  keep  back. 
The  marshal  got  all  out  but  the  woman.     He 


came  to  the  door  and  said.  T  cannot  get  this 
woman  out.'  I  told  him  to  take  my  revolver 
and  keep  the  men  back,  and  I  would  attend 
to  her.  I  walked  in,  found  her  seated  in  the 
middle  of  the  floor,  and  said.  'Madam,  it  be- 
comes my  unpleasant  duty  to  remove  you,' 
at  the  same  time  stepping  quickly  to  her  back, 
bending  over  and  putting  my  hands  beneath 
her  to  carry  her  out.  She  sprang  to  her  feet, 
•  exclaiming,  T  guess  I  can  go  out  myself.' 
After  the  woman  had  surrendered  the  citadel, 
the  man  (whose  name,  I  believe,  was  Weber) 
remarked  that,  if  it  was  not  too  late,  he  would 
sign  the  lease.  I  replied  that  it  was  never 
too  late  for  me  to  ameliorate  the  condition  of 
my  fellow-man,  and  handed  him  the  lease, 
which  he  signed.  We  then  went  from  house 
to  house  and  all  the  occupants  signed  leases. 
Thus  Judson  was  restored  to  his  land  on  the 
old  Sotoyome  Rancho." 

The  Russian  River  and  Dry  Creek  valleys 
were  covered  by  Mexican  grants,  which  had 
been  duly  confirmed  by  the  United  States 
land  commission,  and  patents  issued  thereon, 
and  recorded.  "Notwithstanding  all  this,"  the 
Captain's  narrative  proceeds,  "the  squatters  in 
possession  had  their  secret  leagues  all  over  the 
county,  and  forcibly  resisted  all  efforts  to 
dispossess  them,  and  the  law  seemed  to  be 
entirely  a  dead  letter;  actions  in  ejectment 
were  prosecuted  to  judgment;  writs  of  restric- 
tion were  issued  and  placed  in  the  hands  of 
officers,  but  resistance  was  made  by  armed 
force ;  the  military  was  called  out — a  requisi- 
tion for  militia  on  one  side,  and  Captain  For- 
see  mustering  two  thousand  squatters  on  the 
other  side.  Parties  would  be  evicted  one  day, 
and  the  next  morning  would  find  themselves 
in  possession  of  the  same  premises  they  had 
been  ejected  from  the  day  before.  Two  thous- 
and men  had  met  and  confronted  each  other 
in  bloodless  combat ;  both  parties  marched  and 
countermarched  until  the  farce  was  played  out. 
By  express  command  of  the  sheriff  I  was  ex- 
cluded from  these  wars,  and  the  affair  was 
finally  left  where  it  commenced.  Though  the 
fairest  domain  on  which  the  sun  ever  shone, 
yet  people  sinuniod  it.  as  tlu-rc  was  no  title 
or  undisputed  possession. 

"Things  were  in  this  condition  when  Dr.  L. 
C.  Frisbie,  of  Vallejo,  employed  me  to  look 
after  his  interests  in  the  Sotoyome  Rancho.  I 
took  his  business  in  hand,  and  succeeded  in 
making  some  sales  and  getting  along  pretty 
smoothly  for  a  few  months ;  but  it  became  nec- 
essary to  bring  several  suits  in  ejectment, 
which  I  prosecuted  to  judgment.     One  of  them 


History  of  the  Boich  and  Bar  of  California. 


605 


was  against  Riland  Arbuckle,  on  a  portion  of 
ihe  Sotoyome  Rancho.  and  as  he  was  a  boast- 
ful, blowing  fellow.  I  thought  I  would  go  for 
him  first.  The  sheriff  dispossessed  the  party, 
and  levied  upon  a  quantity  of  sacked  barley, 
which  we  removed  to  the  liouse  for  safety. 
The  squatters  said  tlicy  would  not  resist  the 
officer,  but  tiial  Arl)ucklc  should  be  placed 
in  possession  again  before  morning,  and  tlial 
old  Norton  had  better  leave  with  the  ^lu'riff 
if  he  knew  what  was  good  for  him.  1.  how 
ever,  thought  differently.  My  client  was  not 
there,  and  I  had  determined  to  try  strength 
of  nerve  with  them,  and  had  secured  the  serv- 
ices of  seven  young  men  to  aid  me.  We  were 
all  supi)lied  with  double-barreled  shot-guns 
and  plenty  of  ammunition.  The  sheriff  had 
retired,  and  altout  a  dozen  of  the  squatters 
lingered  for  a  time.  I  had  gone  out  to  recon- 
noiter  the  premises,  when  they  commenced 
talking  very  rough  to  the  bo3^s.  telling  them 
that  they  had  better  leave,  as  every  one  of 
them  would  be  killed  before  morning,  etc.  The 
boys  were  telling  them  that  they  were  not 
there  to  fight,  but  merely  to  hold  possession 
under  the  law».  In  the  early  part  of  the  con- 
versation I  had  slipped  up  behind  a  large  oal: 
tree  where  I  could  hear  every  word  that 
passed,  and  at  this  juncture  I  sprang  from  my 
concealment  and  exclaimed,  'You  are  a  bom- 
bastic set  of  cowards  ;  you  have  dared  me  to 
hold  these  premises ;  now  go  home  and  rally 
your  forces  for  your  night  attack;  you  will 
find  "old  Norton"  at  his  post.'  My  boys  all 
bustled  up  and  told  them  to  go  or  they  would 
boot  them,  and  finally  bluffed  the  fellows  from 
the  ground ;  but  on  riding  off  they  called  back 
that  we  would  see  them  again  before  morn- 
ing. 

"We  then  made  breast-works  of  the  sacks 
of  barley  in  the  house,  with  loop-holes  through 
the  thin  siding,  and  before  it  was  quite  dark 
I  placed  patrols  up  and  down  the  road  with 
instructions,  if  they  should  see  the  enemy 
approach  in  force,  to  retreat  to  our  fortifica- 
tion and  notify  us;  but  if  the  enemy  advanced 
too  fast,  they  were  to  fire  a  revolver  as  a  sig- 
nal and  make  good  their  retreat.  About  1 1 
o'clock  I  heard  the  discharge  of  a  revolver, 
and  the  two  outposts  came  rushing  in  and  said 
there  was  a  large  company  of  horsemen  rapidly 
approaching,  i  formed  the  connnand  outside 
of  the  house,  under  a  large  laurel  tree,  where 
it  was  quite  dark.  I  ordered  them  to  drop 
down  upon  their  faces  on  the  ground.  On 
came  the  horsemen,  from  eighty  to  one  hun- 
dred  strong.     When   they   got   opposite   to   us 


and  about  four  rods  distant.  I  ordered.  'Ready!" 
All  the  locks  clicked  audibly.  I  said.  'Reserve 
your  fire  till  they  attempt  to  cross  the  fence.' 
The  horsemen  wavered  for  a  moment,  then 
with  a  right-about-face  made  equally  as  good 
time  in  getting  away  as  they  did  in  coming.  I 
was  satisfied  that  we  had  not  seen  the  last  of 
them,  and  in  consequence  of  this  impression  I 
kept  a  vigilant  watch.  Aljout  2  o'clock  in  the 
morning  one  of  my  sentinels  came  running  in 
.ind  said  there  was  a  large  crowd  creeping 
alone  the  fence.  I  ordered  my  force  to  keep 
perfectly  quiet.  I  took  my  old  rifle  that  I  had 
had  in  camp,  and  skulked  along  the  fence  to 
within  about  a  hundred  yards  of  the  fore- 
most of  the  approaching  part}-,  when  I  slipped 
out  and  fired  a  shot  about  ten  feet  over  their 
heads.  \t  this  there  was  another  general 
stampede,  and  we  were  again  in  peaceable  pos- 
session of  the  Arbuckle  place. 

"I  continued  to  eject  the  squatters  from 
Frisbie's  tracts,  with  greater  or  less  resistance, 
until  I  had  reduced  the  whole  to  possession. 
It  now  seemed  to  be  the  general  opinion  that 
I  was  the  only  one  who  could  successfully 
cope  with  squatters,  and  Joshua  N.  Bailhache. 
as  one  of  the  Fitch  heirs,  or  rather  tenant  by 
courtesy,  having  married  Miss  Josephine  Fitch, 
had  a  large  tract  of  land  covered  by  squatters. 
and  had  made  many  futile  attempts  to  expel 
them.  They  had  become  so  well  organized 
and  so  confident  of  their  ability  to  forcibly 
hold  the  premises,  that  they  actually  paraded 
the  streets  of  Healdsburg.  both  men  and 
women,  with  music  and  banners  waving,  and 
seemed  to  think  that  if  they  could  only  get 
rid  of  Bailhache  they  would  be  secure  in  their 
homes.  In  accordance  with  this  idea,  they 
made  a  raid  on  him  and  forced  him  to  secrete 
himself  in  the  Raney  Hotel.  Seeing  his  dan- 
ger. I  marched  out  with  a  cocked  revolver  in 
each  hand,  meeting  the  mob.  and  persuaded 
them  that  I  was  the  man  they  wanted,  and  not 
Ba'lhache:  but  they  came  to  the  conclusion 
that  they  did  not  want  either  of  us,  and  re- 
tired, still  iiolding  forcil)k'  possession  of  his 
lands.  Mr.  Bailhache  about  this  time  discov- 
ered that  he  had  business  at  Fort  Yuma;  so  he 
moved  his  family  to  Santa  Rosa  and  departed. 

".\  few  months  afterward  I  received  a  letter 
and  i)ower  of  attorney  from  Mr.  Bailhache  at 
lM)rt  Yimia,  giving  me  full  authority  to  enter 
upon  any  and  all  his  lands  in  Sonoma  county, 
;iiid  expel  s(|uatiers,  etc.  1  commenced  opera- 
tions under  this  power,  but  not  until  after 
I  had  convinced  the  sheriff  that  his  was  not 


606 


History  of  the  Bench  and  Bar  of  California. 


much  of  an  office  anyhow,  and  he  had  agreed 
to  turn  it  over  to  his  under-sheriff  in  case  he 
could  furnish  the  necessary  bonds,  which  I 
Ik-Hcvc  were  about  thirty  thousand  dolhirs ; 
and  I  agreed  to  furnish  ten  thousand,  in  con- 
sideration of  having  the  privilege  of  selecting 
my  own  deputy  for  Healdsburg.  This  was 
carried  out,  and  I  chose  J.  D.  Bins,  and  adopted 
a  new  system  of  warfare.  I  put  in  teams  and 
went  to  work  hauling  off  the  fencing  from  the 
farms  on  the  west  side  of  Dry  Creek,  thus 
rendering  the  land  useless  to  the  holders. 
This  drove  them  to  desperation.  The  teams 
had  been  hauling  all  day.  and  at  evening  when 
they  were  coming  in  with  the  last  load  for  the 
day,  as  they  were  approaching  Dry  Creek,  my 
team  being  in  the  rear  with  five  or  six  men 
upon  the  wagon,  my  brother  among  the  num- 
ber, two  shots  from  rifles  were  discharged 
in  rapid  succession,  and  a  bullet  from  one  of 
them  struck  a  Mr.  Ferguson  just  above  the 
knee,  and  running  down  the  leg,  shattered  the 
bones  in  a  terrible  manner ;  it  was  a  death 
shot.  My  brother  drove  him  to  town  as  fast 
as  possible,  but  he  never  rallied  from  the  nerv- 
ous  shock,  and  died   the   next   day. 

"Until  this  murderous  attack.  I  had  not  been 
thoroughly  aroused,  but  after  the  death  and 
burial  of  young  Ferguson,  I  took  a  posse  of 
ten  men,  all  thoroughly  armed,  and  went  with 
them  in  person.  Stationing  a  few  outposts  to 
prevent  any  further  shooting  from  the  brush, 
T  commenced  throwing  out  goods  from  the 
JKJuses  and  burning  the  buildings  to  the 
ground.  In  this  way  I  went  from  house  to 
house,  until  I  burned  down  all  the  dwellings 
on  the  Bailhache  premises  occupied  by  squat- 
ters. They  followed  us  up  en  masse,  and  at 
length  one  of  them  said,  T  would  like  to  know 
who  sets  those  buildings  on  fire ;  I  would 
make  them  smart  legally.'  I  replied,  'What, 
you  appeal  to  the  law,  who  have  so  long 
trampled  law  and  justice  beneath  your  feet! 
You  shall  be  gratified !'  I  said,  'J'm  Brown, 
fire  that  house.'  The  house  was  soon  in 
flames.  I  then  said  to  the  squatters,  'Now 
take  your  legal  remedy.'  Brown  (a  brother 
of  Mayor  Brown,  of  Santa  Rosa)  was  indicted 
but  a  not.  pros,  was  entered  in  the  case,  as 
the  house  was  mine,  and  I  having  authorized 
the  act;  there  being  no  property  of  others  in 
it,  nor  no  living  being,  under  our  statute,  the 
act  was  legal.  Some  of  the  houses  were  good 
two-story  buildings,  but  I  treated  them  as  I 
would  have  done  a  lot  of  rats'  nests ;  under 
the  circumstances  there  was  no  alternative. 

"Although   I   had   reduced  the   dwellings  to 


smouldering  ruins,  the  squatters  continued  to 
hang  around,  like  the  French  soldiers  around 
a  burning  Moscow,  until  the  elements  drove 
them  away  to  the  hills,  where  some  of  them 
rnit  u\)  tenii)orary  abodes  on  the  adjacent  gov- 
ernuKnt  land.  In  our  attempt  to  keep  the 
raiders  from  tlie  different  places,  we  had  only 
been  successful  in  gaining  possession  of  a 
small  portion,  and  in  order  to  perpetuate  my 
possession.  I  commenced  repairing  the  fences, 
and  on  two  or  three  occasions  in  the  night 
they  fired  them.  But  I  was  ever  on  the  alert, 
and  discovered  the  fire  in  time  to  prevent  much 
damage. 

My  next  effort  was  to  find  some  one  who 
would  dare  take  possession  of  some  one  of 
the  places.  At  last  I  found  a  man  by  the  name 
of  Peacock,  a  powerful,  resolute  fellow,  who 
proposed  to  purchase  a  piece  of  the  land  which 
a  man  by  the  name  of  Clark  had  been  claiming, 
and  whose  house  had  been  burned  down.  He 
contracted  and  entered  into  possession,  and 
guarded  a  fine  lot  of  hay,  a  volunteer  crop 
growing  on  the  place.  The  hay  had  matured 
and  he  had  cut  and  cocked  it,  but  in  the  mean- 
time, contrary  to  my  counsel,  he  had  made 
great  friends  with  and  confidents  of  the  squat- 
ters who  had  been  evicted,  and  among  other 
things  told  them  that  he  was  going  to  see  my 
brother  the  next  day,  to  get  his  team  a  bale  of 
hay,  and  should  be  absent  that  night.  I 
strongly  opposed  it,  while  he  assured  me  that 
everything  would  be  safe,  but  did  not  convince 
me.  I  was  on  the  watch,  and  about  2  o'clock 
in  the  morning  I  discovered  a  bright  light 
arising  from  the  neighborhood  of  Peacock's 
hay.  I  rushed  around,  awakened  Bailhache, 
Ransom  Powell,  and  two  or  three  others,  and 
started  for  the  scene  of  the  fire.  We  suc- 
ceeded in  saving  about  one-third  of  the  hay. 

"On  Peacock's  return  it  was  impossible  to 
convince  him  that  the  Prouses  had  any  hand 
in  this,  or  that  they  knew  anything  of  it.  He 
continued  his  former  relations  wtih  them  for 
about  a  month  after  this  time,  having  gone 
to  board  with  them.  One  day  a  dispute  arose 
at  the  dinner  table,  and  the  two  Prouse  broth- 
ers set  upon  him,  one  of  them  armed  with 
something  that  the  evidence  afterwards  dis- 
closed as  being  somewhat  like  a  butcher's 
cleaver.  They  cut  and  hacked  Peacock  up  in 
a  terrible  manner,  so  that  for  a  long  time  his 
life  was  despaired  of.  For  this  offense  I  had 
Daniel  Prouse  sent  to  the  penitentiary,  and 
we  continued  to  hold  possession.  The  land 
being  desirable  farming  land,  others,  seeing 
that  our  title  could  be  maintained,  commenced 


History  of  the  Bench  and  Bar  of  California. 


607 


purchasing ;  and  thus  Bailhacho  was  restored 
to  his  possession,  which  put  an  end  to  the 
squatter  difficuUy  on  the   Sotoyome   Rancho." 

Like  hazards  continued  to  beset  the  intrepid 
attornej'  for  a  long  period.  Once,  while  re- 
turning from  serving  some  notices  on  default- 
ing tenants  of  General  John  B.  Frisbie,  of 
Vallejo,  and  W.  H.  Patterson,  the  San  Fran- 
cisco lawyer,  this  occurred  to  him: 

"While  jogging  along  on  a  gentle  little 
mare,  right  opposite  the  widow  Bell's  old 
place,  where  there  was  an  old  watering  trough 
and  spring  at  a  large  redwood  stump,  sur- 
rounded by  a  dense  growth  of  redwood 
sprouts,  a  shot  was  fired.  I  felt  a  concussion, 
and  at  the  same  instant  my  mare  made  a  jump 
sideways,  nearly  throwing  me  from  my  sad- 
dle.    I  recovered  myself  and  dismounted. 

"I  saw  the  brush  wiggle  and  shake,  and  made 
for  the  point.  The  party  took  to  his  heels, 
running  through  the  thick  brush  and  up  a 
very  steep  hill,  and  I  only  got  a  sight  of  his 
back.  He  wore  a  bluish-gray  coat  and  a  low 
black  hat.  and  was  rather  a  short  man,  and 
that  was  all  I  could  tell  of  my  would-be  assas- 
sin. I  was  unarmed,  and  had  no  wav  of  stop- 
ping him.  On  examination,  I  discovered  that 
the  bullet  had  passed  through  both  sides  of 
my  vest,  having  entered  the  right  side  right 
in  the  breast,  passing  through  my  outer  shirt, 
in  front,  and  out  at  the  left  side.  This  was 
at  a  time  when  strangers  thought  us  a  set  of 
desperadoes  here,  and  there  was  but  little  said 
about  it,  as  I  did  not  wish  to  add  to  our  rep- 
utation in  that  line.  When  I  came  in  I  showed 
it  to  Bailhache,  D.  F.  Spurr,  and,  may  be.  two 
or  three  mohe.  I  still  have  the  vest,  and  if 
this  reaches  the  eye  of  the  perpetrator  of  the 
deed  he  may  congratulate  himself  on  the  fact 
that  I  could  not  recognize  him." 

The  narrative  continues : 

"I  then  wrote  to  Frisbie  and  Patterson,  and 
told  them  that  in  case  I  entered  upon  the  haz- 
ard of  attempting  to  manage  the  squatters, 
they  must  give  me  an  unconditional  power  to 
survey,  segregate,  and  sell  all  the  lands  ui)un 
such  terms  and  time  as  I  should  deem  prober, 
being  accountable  to  no  one  for  my  actions 
in  its  disposition.  They  immediately  sent  me 
the  power,  which  was  communicated  to  the 
settlers  in  a  very  exaggerated  manner,  they 
being  led  to  believe  that  I  would  eject  them 
at  any  price.  Whereupon  their  secret  organ- 
ization met,  I  having  two  trusty  friends  in 
that  organization,  who  hastened  to  me  and 
communicated  to  me  so  much  of  the  proceed- 
ings as   in   their  judgment   was   necessary   to 


preserve  my  life.  1  was  told  by  them  that  it 
was  determined  in  counsel  that  my  death  was 
essential  in  order  to  defeat  the  measures  about 
to  be  carried  into  effect ;  and  they  had  adopted 
a  resolution  that  if  I  ever  showed  myself  upon 
the  Tzabaco  Rancho  I  was  to  be  killed  like  a 
snake  by  whoever  discovered  me;  and  in  addi- 
tion to  this,  they  balloted  to  see  whose  duty 
it  was  to  be  my  special  executioner  and  hunt 
me  out  and  kill  me.  These  men  begged  of  me, 
under  the  circumstances,  not  to  come  onto  the 
grant.  I  fully  comprehended  the  fact  that 
the  settlers  were  in  a  state  of  desperation,  as 
we  held  one  judgment  over  them  in  the  sum 
of  $10,000  obtained  on  injunction  bond,  mak- 
ing a  total  of  $20,000;  together  with  writs  of 
ejectment  against  every  one  of  them. 

"After  due  reflection,  I  resolved  to  "beard 
the  lion  in  his  den,'  and  to  fight  the  devil  with 
fire,  and  when  I  was  all  ready,  I  hitched  my 
pony  to  the  buggy,  and  started  for  the  Tza- 
baco Rancho.  After  placing  a  quart  bottle 
of  old  Bourbon  under  the  buggy  seat,  and 
arming  myself  in  case  of  trouble,  I  drove  to 
the  ranch,  which  is  about  six  miles  from 
Healdsburg,  following  the  Geyserville  road, 
and  adjoining  the  Sotoyome  Rancho  on  the 
west.  I  drove  up  opposite  the  house  of  one 
Captain  Vessor.  then  living  close  to  the  line, 
and  saw  the  old  Captain  in  his  yard  hewing 
out  a  plow-beam.  I  stopped  my  horse,  and 
called  out,  'Captain  Vessor,  will  you  step  this 
way  ?'  He  dropped  his  ax,  and  came  to  the 
road ;  when  about  five  or  six  feet  from  the 
buggy  he  raised  his  spectacles,  and  recogniz- 
ing me,  he  instantly  became  as  black  as  a  thun- 
der-cloud. [  jumped  out  of  the  buggy,  and 
confronting  him,  said,  T  am  informed  that 
you  men  liave  in  solemn  conclave  determined 
to  shoot  and  scalp  me  if  I  ever  came  on  this 
grant,  and  as  shooting  is  a  game  that  two 
may  play  at,  I  will  commence  now,'  at  the 
some  time  running  my  hand  under  the  buggy 
seat  The  old  Captain  threw  up  both  hands 
and  commenced  running  backwards,  exclaim- 
ing, 'Don't,  don't.'  "I'll  be  hanged  if  I  don't  !' 
said  I,  at  the  same  lime  bringing  the  whisky 
bottle  to  bear  upon  him.  .-X.  pleasurable  sen- 
sation, after  the  most  abject  fear,  wrought 
another  change  in  the  Captain,  when  he  laugh 
ingly  exclaimed :  'Oh,  God !  you  might  have 
shot  me  with  that  long  ago.'  I  then  gave  the 
old  man  a  'shot  in  the  neck,'  and  bade  him 
pet  into  the  buggy;  but  I  frankly  told  him 
tiial  1  was  through  joking  and  meant  business; 
that  for  the  present  he  was  my  prisoner,  and 
must  go  with  me.     He  very  reluctantly  com- 


608 


History  of  the  Bench  and  Bar  of  California. 


plied,  and  I  drove  to  Geyserville,  only  holding 
him   hostage   to   insure  my   own   safety. 

"At  this  place  I  met  Dr.  Ely,  who  I  had 
good  reason  to  believe  was  the  brains  and 
managing  man  of  the  squatters,  ho  being  a 
man  of  intellect,  and  a  fair-minded,  reasonable 
man  upon  all  subjects  excepting  the  one  at 
issue.  I  dismissed  Vessor,  'shot'  Ely.  and 
took  him  in  the  buggy,  and  continued  my  jour- 
ney through  the  Tzabaco  Rancbd.  [  informed 
the  doctor  that  I  came  uj)  to  sell  them  iheir 
lands,  antl  that  1  ijroiiosed  to  give  every  man 
a  reasonable  chance  of  paying  for  the  farm  1 
sold  him.  I  was  aware  that  the  lands  had 
been  held  too  high  ;  that  the  owners  were  hon- 
est in  their  convictions  of  the  value  of  the 
land,  but  were  mistaken  ;  and  for  that  reason 
I  had  refused  to  take  the  agency  until  they 
gave  me  carte  hlaiiclic  to  dispose  of  them  ac- 
cording to  my  own  judgment.  "But."  he  said. 
with  apparent  surprise,  'yoti  dn  not  ])ro])ose  to 
sell  me  my  place?'  'Why  not?'  I  asked.  He 
replied,  'I  have  always  heard  that  you  said 
you  would  not  sell  my  place,  but  had  selected 
it  for  j'ourself.'  'That,'  said  I,  'is  just  as  true 
as  many  other  things  you  have  beard  about 
me.  I  am  a  W'estern  man.  and  am  anxious 
to  see  every  man  have  his  home,  and  will  sell 
to  you  just  the  same  as  to  the  rest.'  'But,' 
said  he.  "if  disposed  to  purchase,  how  can  we? 
We  are  bankrupts;  with  the  $20,000  judg- 
ments hanging  over  us,  we  can  do  nothing..' 
I  told  him  that  it  was  not  necessary  to  tell  me 
that  they  were  bankrupts,  for  T  knew  it  ;  and 
cfiMtinned,  'It  is  not  necessar\'  to  tell  me  that 
you  arc  a  set  of  ruined  and  desperate  men  ;  I 
know  it.  It  is  not  necessary  for  you  to  say. 
in  case  I  attempt  to  execute  the  writs  of  eject- 
ment which  I  hold  against  you,  that  these  fair 
domains  will  be  left  blackened  ruins,  and  that 
the  inhabitants  will  retire  to  their  mountain 
fastnesses  and  wage  war  against  human  na- 
ture at  large,  for  I  already  know  it.  and  in 
my  present  action  have  given  due  heed  to  it 
all  :  yet  I  am  going  to  sell  every  man  of  you 
your  farms,  and  as  fast  as  you  purchase  I 
shall  wipe  the  judgment  out  against  the  pur- 
chaser and  again  place  you  in  the  position  of 
freemen.' 

"The  doctor  frankly  admitted  that  if  that 
was  my  intention,  then  I  had  been  greatly 
misrepresented  to  them.  I  told  him  that,  hav- 
ing unlimited  power.  1  intended  to  be  a  bene- 
factor and  not  an  oppressor  of  the  people. 
The  doctor  took  me  at  my  word,  rode  through 
the  settlement  with  me,  and  advised  the  set- 
tlers to  purchase  their  homes,  which  seemed 
to  them  unusual  advice.     I  notified  them  that. 


on  the  following  Thursday,  I  would  be  at  Cap- 
tain Vessor's  for  the  purpose  of  going  with 
them  over  every  man's  place,  and  ti.xing  a  price 
upon  it  per  acre. 

"I  was  there  at  the  time  appointed,  and  met 
the  entire  settlement,  and  went  over  every 
place,  fixing  my  price  upon  the  land  as  I  passed 
over,  and  to  my  surprise  and  satisfaction,  everj' 
one  of  them  thought  that  1  had  put  a  fair  price 
upon  his  neighbor's  land,  but  had  got  his  a 
little  too  hi^li.  The  result  was  that  every  man 
purchased  his  farm  within  the  ensuing  six 
weeks,  jjaying  one-fourth  down  and  getting 
three  years  to  pay  the  lialance,  at  one  per  cent 
per  month  interest.  And  what  was  still  more 
satisfactory,  by  the  enlargement  of  time  of  pay- 
ment, all  succeeded  in  paying  for  their  farms, 
and  thus  ended  the  squatter  war  that  had  been 
ke])t  up  for  (i\er  se\-en  years  in  the  northern 
l)art   of  this  county. 

"But  before  dismissing  the  subject  I  must 
say,  in  Justification  of  these  men,  that  the  most 
of  them,  in  my  judgment,  were  honest  in  their 
convictions  that  the  claimants  had  no  title  to 
their  lands,  or  if  they  had  a  title  it  was  fraud- 
ulent :  and  that  many  of  them  today  are  among 
our  most  respected  and  prominent  citizens.  Our 
feuds  are  now  looked  upon  as  a  feverish  and 
disturbing  dream,  or  treated  as  a  subject  of 
mirth,  and  as  for  myself,  the  most  of  the  men 
who  once  wanted  to  see  my  throat  cut  are 
among  my  warmest  friends." 

How  the  Captain  came  to  be  called  Colonel, 
will  now  be  explained. 

At  the  outbreak  of  the  war  of  the  Rebellion, 
in  1861,  a  regiment  of  volunteers  was  organized 
in  the  Captain's  old  county  (Kane),  in  Illinois, 
where  he  had  long  before  formed  his  company 
for  the  Mexican  War.  After  electing  the  other 
officers,  it  was  unanimously  resolved  that  Cap- 
tain L.  A.  Norton,  then  in  California,  be  elected 
Colonel  of  the  regiment.  On  motion  of  Capt. 
P.  J.  Burchell,  it  was  ordered  that  a  copy  of 
the  record  "be  forwarded  to  Colonel  Norton, 
with  the  request  that  he  come  home  and  take 
charge  of  his  regiment." 

The  Captain  (or  Colonel)  received  the  noti- 
fication, but  ])ressing  duties,  such  as  we  have 
been  contemplating,  stood  in  the  way  of  his 
going  "home." 

In  this  connection  the  "History  of  Sonoma 
County"  has  the  following: 

"We  are  informed  by  reliable  persons  that 
the  northern  part  of  Sonoma  County  is  much 
indebted  to  the  firmness  and  energy  of  the 
Colonel  in  keeping  down  an  outbreak,  as  that 
portion  of  the  county  boasted  a  strong  seces- 
sion   element,   and   when    it    was   asserted   that 


History  of  the  Bench  and  Bar  of  California. 


609 


no  recruits  to  join  the  Federal  army  would 
ever  live  to  cross  Russian  River,  he  organized 
and  secretly  drilled  the  Union  forces,  and  was 
at  all  times  ready  to  meet  the  threatened  out- 
break. And  when  it  was  said  that  no  Union 
flag  should  ever  float  in  Healdshurg,  he  went 
immediately  to  Petalunia,  purchased  one,  placed 
it  on  the  top  of  his  carriage,  carried  it  through 
the  country  to  Healdshurg.  and  nailed  it  to  his 
balcony,  where  it  continued  to  wave.  When  it 
was  reported  that  a  rebel  flag  was  floating  from 
the  top  of  a  high  tree,  between  Santa  Rosa 
and  Sonoma.  Norton  made  it  his  business  to 
go  down  there,  in  open  day,  climb  the  tree  and 
remove  the  flag.  And  we  are  informed  that  it 
is  now  in  the  possession  of  Mrs.  Molloy.  of 
San  Francisco,  the  Colonel  having  presented 
the  same  to  Dr.  E.  B.  Molloy,  now  deceased." 

In  1874  Colonel  Norton  took  his  first  real  va- 
cation. He  made  it  a  long  one,  and  spent  it 
in  travels  over  the  Eastern  states  and  Canada, 
and  went  as  far  South  as  Richmond,  Va.  He 
went  by  overland  and  rail,  and  a  laughable  in- 
cident occurred  on  the  other  side  of  the 
Sierras.  A  Mrs.  G.  was  among  the  passen- 
gers, with  her  little  son.  eight  years  old.  Her 
husband,  an  official  of  Alameda  county,  placed 
her  and  the  little  boy  in  Colonel  Norton's  care. 
Colonel  Norton  says  : 

"When  we  arrived  at  the  county  seat  of 
Humboldt  county  and  when  the  cars  stopped  at 
the  depot,  the  conductor  walked  through  the 
cars  and  announced  that  we  had  twenty  min- 
utes to  exercise  our  limbs.  I  asked  Mrs.  G.  if 
she  would  like  to  walk  out,  and  she  replied  in 
the  affirmative.  1  looked  at  my  watch,  and  we 
walked  to  the  court  house,  less  than  a  five  min- 
utes' walk,  exchanged  a  few  words  with  the 
clerk,  and  started  back,  when  the  whistle  blew, 
the  bell  rang,  and  away  went  the  cars.  The 
woman  was  perfectly  frantic,  and  screamed, 
'My  child!  my  child!'  1  consoled  her  as  well 
as  possible,  telling  her  that  I  would  telegrai)h 
to  the  next  station  and  have  the  boy  and  bag- 
gage left.  In  the  meantime  the  cars  had  gone 
out  of  sight  and  hearing.  I  had  restored  tlie 
lady  to  quiet,  and  was  meditating  a  suit  against 
the  company  for  damage,  when  to  my  surprise 
the  cars  hove  in  sight,  and  some  one  on  the 
back  step  was  waving  a  handkerchief  most  fu- 
riously. We  ruslied  on  and  were  soon  on 
board  again. 

"Then  came  tiie  secret  :  The  first  day  out,  a 
small  specimen  of  California's  best  produc- 
tion passed  from  my  possession  to  that  of  tlie 
negro  steward,  with  the  understanding  that 
he  was  to  consult  my  best  interests  while  it 
should   be   my   good    fortune    to    travel    in    his 


society;  and  when  it  was  announced  that  I  was 
left,  he  made  a  furious  dash  at  the  bell-rope, 
pulling  it  in  two  the  first  eflrort.  He  then 
rushed  through  the  cars,  reached  the  engine 
and  yelled  to  the  engineer,  'Yon  iiius'  go  back! 
tivo  ladies  left,  ami  tzi'o  suckin'  babies  on 
board!"  Such  an  appeal  couldn't  be  resisted, 
and  the  train  backed  up.  1  shall  never  regret 
what  I  invested  in  that  nigger." 

He  has  pictured  very  pleasantly  the  varied 
striking  scenes  that  presented  themselves  to  his 
eye  on  this  journey,  and  gives  his  impressions 
of  the  great  men  whom  he  met.  But  we  pass 
by  all  these  to  make  room  for  his  account  of  a 
new  danger,  that  threatened  him  in  New  York 
city,  and  how  he  escaped  it : 

"On  the  second  day  after  leaving  Albany 
we  landed  on  Manhattan  Island,  which  con- 
tains the  great  storehouse  of  the  world,  and 
1  was  soon  lost  in  the  swaying  and  jostling 
masses  on  Broadway.  I  put  up  at  the  St. 
Nicholas,  and  was  not  long  in  finding  out  that 
in  New  York  style  costs  as  much  as  living. 

The  next  morning  after  breakfast  I  thought 
I  would  take  a  'promenade  down  Broadway' 
and  call  upon  mj-  banker.  I  had  not  pro- 
ceeded on  my  walk  more  than  two  blocks 
when  I  was  accosted  by  a  gentleman  who 
evinced  great  pleasure  in  meeting  me.  He 
rushed  up  furiously,  seized  me  by  the  hand 
and  exclaimed,  'How  are  you,  Mr.  Jones,'  or 
some  other  name  which  I  do  not  now  remem- 
ber. I  remarked  to  him  that  he  had  probably 
mistaken  his  man  ;  that  that  was  not  my  name, 
and  further  that  I  didn't  recognize  him.  'Is 
it  possible  that  I  am  mistaken?'  he  exclaimed. 
'Is  not  your  name  so  and  so.  and  do  you  not 
live  in  Cincinnati?'  I  assured  him  that  he 
hadn't  guessed  my  name,  and  that  I  didn't  live 
in  Cincinnati.  He  begged  my  pardon,  but  re- 
marked that  I  must  be  some  near  kin  of  his 
friend,  as  he  never  saw  two  men  look  so  much 
alike.  'My  name  is  Jonas  Collins,'  he  added; 
'what  may  be  your  name?'  I  told  him  that  was 
I  lie  iild  thing.'  and  that  he'd  better  be  off'.  He 
nnn.Lcle(I  with  the  cn>\\cl  and  was  soon  lost  to 
my  gaze. 

"1  pursued  my  way.  chuckling  to  myself  on 
his  discomfitiu-e,  as  I  had  from  my  infancy 
heard  of  New  York  sharps,  and  longed  for  the 
day  when  lliey  would  iiave  an  opportunity  to 
try  iheir  skill  on  me.  believing  that  there  was 
one  man  ;il  le.isl  tli.it  was  invulnerable  to  their 
arts.  I  walked  along  in  a  very  happy  frame 
of  mind,  exulting  over  my  victory,  when  a 
young  man  of  prepossessing  appearance  and 
manner  rushed  from  the  throng  of  pedestrians 
and  exclaimed.  'Captain   Norton,  how  do  you 


610 


History  of  the  Bench  and  Bar  of  California. 


do!  When  did  you  leave  San  Francisco?'  I 
took  his  extended  hand,  but  told  him  that  he 
had  the  advantage  of  me  ;  that  I  failed  to  re- 
member him.  'Why,'  said  he  'don't  you  know 
David,  of  the  Western  Union  Telegraph  Com- 
pany, of  San  Francisco?'  1  replied  that  1 
didn't  remember  him;  that  there  were  about 
a  dozen  of  the  boys,  and  1  should  fail  to  recog- 
nize any  one  of  them.  He  said  he  knew  me 
very  well,  having  met  me  often  in  San  Fran- 
cisco. I  told  him  that  I  was  pleased  to  meet 
him.  or,  in  fact,  any  one  from  California.  He 
said  that  he  had  just  got  in  the  night  before; 
was  putting  up  at  the  .\stor  House,  and  asked 
me  where  1  was  going.  I  told  him  I  was  going 
dnun  to  the  First  National  Bank  to  draw  some 
money.  He  then  informed  me  that  he  had 
to  come  on  to  New  York  for  the  purpose  of 
settling  a  little  matter;  that  his  grandmother 
had  died  and  left  him  a  small  annuity;  that  he 
had  bought  a  ticket  in  a  lottery,  and  was  in- 
formed that  he  had  drawn  a  prize ;  that  he 
was  hunting  the.  place  to  draw  his  money; 
that  it  was  somewhere  near  where  we  then 
were  (he  thought  it  was  just  around  the  cor- 
ner), and  if  I  would  accompany  him  he  would 
go  to  the  bank  with  me  after  he  had  got  his 
money.  I  consented  to  do  so.  and  we  soon 
found  the  number. 

"We  were  admitted  by  a  negro  usher  into  the 
presence  of  the  lottery  man,  who  was  seated 
behind  a  long  table.  He  arose  and  David  pre- 
sented his  ticket.  The  man  remarked,  'I  sup- 
pose j'ou  think  you  have  drawn  a  fortune.' 
The  young  man  replied  that  he  didn't  know 
how  much  he  had  drawn.  The  lottery  man 
said,  'You  have  drawn  $401,'  and  handed  the 
young  man  eight  $50  greenbacks  and  a  ticket, 
saying,  as  he  did  so,  'This  dollar  ticket  is  all 
the  percentage  that  the  company  has  in  this 
matter,  and  that  ticket  will  be  drawn  at  the 
large  hall  on  Tuesday  next.'  'I  shall  not  be 
here  on  Tuesday,'  said  David,  'I  am  going  right 
back  to  California.'  I  said,  'What  do  you  care 
about  the  dollar  ticket?'  and  he  answered  that 
he  would  like  to  know  whether  it  drew  any- 
thing or  not.  The  lottery  man  suggested.  'Per- 
haps your  friend  will  be  here.'  David  turned 
to  me  and  asked  if  I  would  be  in  the  city  on 
Tuesday.  I  replied  that  I  should,  and  would 
see  if  his  ticket  drew  anything,  and  report  on 
ray  return  to  San  Francisco. 

"But  the  lottery  man  remarked  that  he  had 
the  scheme  of  the  drawing  and  that  if  David 
preferred,  he  could  have  a  private  drawing 
then  and  there ;  that  they  did  so  sometimes 
where  men  were  going  to  leave  the  city.  After 
an  exhibition  of  his  scheme,  it  was  agreed  that 


David  should  avail  himself  of  the  private 
drawing.  Among  other  things  it  was  ex- 
plained that  where  the  party  throwing  the  dice 
threw  any  number  other  than  a  prize  number 
it  was  called  a  'star,'  and  the  party  neither 
won  nor  lost,  but  would  be  compelled  to  rep- 
resent the  ticket  by  putting  up  a  dollar  first, 
and  then  doubling  the  sum  as  often  as  he 
threw  'stars,'  and  that  the  money  so  put  up 
was  not  forfeited,  but  at  the  end  of  seven 
throws  the  party  putting  up  took  all  of  his 
money  so  put  up.  together  with  his  prize  in 
case  the  ticket  won.  David  threw  a  'star'  and 
'antied'  liis  dollar;  the  second  throw  was  the 
same,  and  he  put  up  two  dollars;  the  third 
throw  was  another  'star,'  and  he  put  up  four 
dollars.  Each  time  that  David  put  up,  the 
engineer  of  the  game  gave  him  a  ticket.  After 
the  third  throw  David  remarked  tnat  he  seemed 
to  be  out  of  luck,  and  asked  me  to  throw  for 
him.  I  did  so  and  won  $8.  He  seemed  pleased 
and  requested  me  to  throw  again,  he  putting 
up  $8  to  'represent.'  I  threw  again,  and  won 
$400.  The  money  was  paid,  $200  on  each 
ticket,  to  abide  the  issue  of  the  throwing;  but 
we  w^ere  informed  that  we  must  come  up  $20 
apiece.  I  was  inclined  to  draw  out,  but  Da- 
vid offered  to  put  up  for  me,  assuring  me  that 
he  'saw  into  it,'  and  that  under  any  contin- 
gency we  were  to  take  down  the  money  that 
we  'represented'  with.  I  told  him  that  I 
couldn't  permit  him  to  put  up  for  me,  so  I  put 
up  the  $20.  I  threw  and  it  was  a  'star.'  I 
then  proposed  to  the  lottery  man  to  let  him 
keep  the  $200,  which  he  claimed  I  had  won 
and  1  would  take  down  the  $20  and  quit.  To 
this  he  wouldn't  agree,  and  said  that  in  case 
I  quit  I  forfeited  the  $20.  I  then  thought  I 
began  to  'see  into  it'  myself,  so  I  put  up  $20 
more  and  again  threw  a  'star.'  It  then  re- 
quired $80.  I  laid  down  a  $100  greenback  and 
threw — still  another  'star.'  The  lottery  man 
said  that  it  now  required  $500  to  'represent,' 
and  went  on  to  explain.  I  told  him  it  was 
unnecessary,  as  I  understood  it ;  that  I  had  the 
change.  I  took  up  the  $100  bill  and  carefully 
laid  it  in  my  pocket-book,  where  I  had  laid 
the  two  twenties  before  it,  and  put  my  hand 
in  my  hip-pocket  for  the  'change.'  Drawing 
out  a  six-shooter,  I  cocked  it,  and  covered 
the  two  worthies,  informing  them  that  if  they 
moved  a  muscle  I  would  blow  the  top  of  their 
heads  off.  The  lottery  sharp  cried  out,  'Let 
me  explain !'  but  I  told  him  that  it  was  my 
turn  to  explain ;  that  they  had  simply  mistaken 
their  man;  that  they  had  got  me  into  their 
den  to  rob  me,  but  hawks  as  they  were  their 
claws  were  too  short  to  get  away  with  a  Cali- 


History  of  the  Bench  and  Bar  of  California. 


611 


fornia  chicken.  Again  admonishing  them  to 
keep  their  seats,  for  if  they  moved,  it  would 
make  me  very  nervous  and  I  couldn't  be  re- 
sponsible for  what  might  happen,  1  kept  them 
covered,  backed  to  the  door,  bade  them  good- 
morning,  and  left,  having  learned  that  I  was 
not  so  much  smarter  than  the  rest  of  the  human 
family  as  1  had  thought  myself,  and  that  I, 
too,  could  be  taken  in  by  a  Broadway  confi- 
dence man." 

Returning  leisurely  to  his  home  in  Healds- 
burg,  he  resumed  his  profession.  It  was  but 
to  renew  his  old  tamiliarit)-  with  the  perils 
of  practice  on  the  frontier : 

"I  was  engaged  on  part  of  the  plaintiff  in 
the  case  of  Bennet  vs.  Bennet,  for  divorce, 
having  made  an  application  for  the  custody 
of  the  children.  The  case  was  tried  in  Men- 
docino county,  and  it  was  necessary  for  four 
of  us,  the  plaintiff,  her  two  witnesses,  and  my- 
self, to  go  from  Healdsburg  to  Ukiah,  and  that 
necessitated  a  two-seated  conveyance.  On  ap- 
plication at  the  livery  stable,  I  was  informed 
that  I  could  either  have  a  thorough-brace  or  a 
light,  two-seated  carriage.  I  told  them  that 
1  would  take  the  carriage,  but  wanted  a  true, 
steady  team,  as  there  was  no  brake  on  the  car- 
riage. Well,  we  went  to  Ukiah,  made  our 
showing,  and  got  an  order  of  court  for  the 
children,  and  were  jubilant  over  our  success. 

"As  we  were  returning  over  the  old  toll-road 
on  the  west  side  of  Russian  river,  the  high 
hills  on  our  right  and  a  perpendicular  preci- 
pice of  thirty  feet  on  our  left,  and  a  road-bed 
of  about  fifteen  feet,  winding  up  the  mountain, 
on  turning  a  bend,  we  suddenly  met  a  team. 
The  bank  side  was  ours  by  right  of  way,  but 
the  other  parties  took  it,  throwing  us  on  tlu- 
side  next  the  precipice.  They  halted  to  let 
me  pass  (I  was  driving),  but  as  I  attempted 
to  drive  on  I  discovered  the  limb  of  an  oak 
I  ret  projecting  over  the  road,  that  came  so  far 
out  as  to  fence  me  off,  so  that  1  could  not 
swing  in  behind  them.  Coming  to  a  halt,  I 
lold  them  to  drive  ahead;  but  before  they  could 
understand  what  I  wanted,  my  horses  com- 
menced l)acking,  and  tlie  wagon  iJiilli-d  nn 
tliem.  inclining  to  run  down  the  grade.  I 
readily  comprehended  the  situation  and  urged 
my  horses  to  advance,  striking  them  with  the 
whip;  but  the  more  I  urged  them  ihe  faster 
they  backed.  At  this  place  there  was  a  bend 
in  the  bank,  forming  a  horseshoe,  the  toe  nni~ 
ning  to  the  precipice.  I  saw  that  wc  were 
destined  to  go  over  the  precipice  back  foremost. 
As  the  grade  got  steeper  in  our  downward  de- 
scent, I  whirled  my  horses,  facing  the  preci- 
pice, and  noticed  a  jack-oak  growing  below  the 


precipice,  whose  branching,  feathery  top  came 
up  even  with  the  top  of  the  bank.  It  was  now 
so  steep  that  the  horses  could  not  hold  the 
wagon,  and  I  plunged  them  into  the  top  of 
the  tree  (which  was  about  eight  inches  in  di- 
ameter at  the  butt),  and  down  we  went,  head 
foremost — horses,  carriage,  tree  and  all.  The 
tree  bent  down  with  the  weight,  but  as  soon 
as  the  horses,  carriage,  and  passengers  struck 
the  bed  of  the  creek  below,  the  three  passen- 
gers pitched  out,  and  the  horses  being  on  the 
ground,  the  tree,  thus  released,  sprang  back, 
throwing  the  carriage  clear  and  pitching  me 
some  fifteen  feet,  head  foremost  among  the 
rocks.  The  next  thing  I  knew  the  parties  from 
the  other  wagon  had  hold  of  me,  attempting 
to  carry  me  out.  I  gained  my  feet,  and,  with 
their  assistance,  climbed  to  the  road,  where 
they  got  me  into  their  wagon  and  drove  me, 
with  tiie  rest,  to  MacDonald's  Hotel,  on  the 
road,  I  believe  about  two  miles.  MacDonald 
got  a  mattress  and  spread  it  on  a  sidewalk 
running  along  the  front  of  the  hotel,  where 
it  was  cool,  and  I  was  laid  on  it. 

"[  had  been  there  but  a  few  minutes  when 
I  heard  some  one  say  that  Bennet,  the  defend- 
ant in  our  case,  had  run  off  with  the  children, 
and  it  was  supposed  that  he  was  taking  them 
to  Oregon.  When  I  heard  this  I  asked  Mac- 
Donald  if  he  had  any  brandy.  He  answered 
in  the  affirmative,  when  I  asked  for  a  glass. 
After  drinking  it,  I  dictated  dispatches  to  Chief 
Burke,  of  San  Francisco,  and  to  the  Sacra- 
mento police,  and  all  was  a  blank  for  some 
time.  The  next  thing  that  I  realized  was  that 
Dr.  Pike  was  present  (the  local  physician). 
Word  was  sent  to  Healdsburg  for  Dr.  O.  S. 
Allen,  my  family  physician,  and  Dr.  Molloy, 
my  father-in-law.  On  the  way  down  the  man 
reported  the  accident  in  Cloverdale,  and  Dr. 
Weaver,  from  the  State  of  Nevada,  a  former 
partner  of  Dr.  Allen,  happened  to  be  there ;  he 
said,  Mf  one  of  .Mien's  iJ.itirnt-^  i--  hurt,  1  must 
go  and  see  iiiin."  Ihe  rtsidenl  pliysician  of 
Cloverdale  hitclied  up  his  team,  ;ind  they  came 
up.  and  two  hours  later,  Drs.  Allen  and  Mol- 
loy arrived,  making  five  doctors  in  all  .  (Some 
will  say  that  was  enough  to  kill  any  man.) 

"They  went  to  work  in  good  earnest,  gave 
nie  a  thorough  examination,  found  that  two 
iili>  had  been  stove  in  near  the  backbone,  that 
the  i)oiiit  of  the  left  shoulder  was  broken,  that 
my  head  was  badly  cut  in  several  places,  and 
full  of  gravel-stones,  and  that  Ihe  nervous  sys- 
tem was  badly  shaken.  My  neck  and  all 
around  the  top  of  my  shoulders  assumed  an 
inky  blackness,  but  I  had  become  entirely  con- 
scious.    Night  was  coming  on,  and  they  were 


612 


History  of  the  Bench  and  Bar  of  California. 


desirous  of  getting  me  into  the  house.  They 
attempted  to  move  me  on  the  mattress,  and 
carry  me  in,  but  the  instant  they  commenced 
raising  me  on  the  mattress  the  breath  would 
leave  me,  and  I  would  faint,  the  pain  was  so 
excruciating.  They  had  to  leave  me  where 
I  was,  and  I  was  compelled  to  remain  there 
with  an  awning  over  me  for  three  days,  when 
I  called  MacDonald  to  me  and  asked  him  if 
he  had  any  wide  boards  about  the  place  from 
sixteen  to  eighteen  inches  wide.  He  said  that 
he  had,  when  I  asked  him  to  cut  off  a  piece 
seven  feet  long  and  bring  it  there.  Some 
thought  I  was  losing  my  mind,  but  he  com- 
plied with  my  request.  'Now.'  said  I,  'nail 
a  bracket  on  one  end,  four  inches  high.'  He 
again  complied.  'I^ow,'  said  I  to  Dr.  Allen, 
'carefully  shove  that  board  under  my  mat- 
tress, and  let  the  bracket  come  up  to  my  feet.' 
This  was  done.  'Now,'  I  continued,  'go  to 
my  head  and  raise  the  board.'  I  found  that 
my  plan  was  a  success ;  that  lying  on  the  stiff 
board  I  could  be  moved  without  any  rack  or 
pain.  I  lay  at  MacDonald's  a  week,  when 
I  was  moved,  with  the  aid  of  my  board,  to  my 
home  in  Healdsburg,  where  I  lay  for  nearly 
three  months. 

"The  doctors  unanimously  agreed  that  I 
would  never  entirely  get  over  my  injuries,  but 
would  be  able  to  get  around,  and  might  sur- 
vive several  years.  But  they  were  mistaken, 
as  I  have  had  occasion  to  try  mj^  manhood 
several  times  since,  and  could  not  see  that  I 
had  lost  much  of  my  former  elasticity. 

"Subsequent  to  the  foregoing  event,  there 
was  a  desperate  attempt  made  upon  my  life ; 
I  was  seated  in  a  chair,  when  the  would-be 
assassin  drew  a  cocked  revolver,  clapped  it  to 
my  ear  and  fired.  I  saw  the  pressure  of  his 
fingers  upon  the  trigger  of  the  revolver,  and 
throwing  my  head  back  and  my  hand  up,  the 
bullet  crashed  diagonally  through  my  hand.  I 
sprang  to  my  feet  and  with  my  other  hand 
reached  for  my  revolver ;  but  it  was  in  the 
scabbard,  buttoned  down.  My  assailant  had  a 
long  navy  revolver,  and  continued  his  fire  at 
close  range,  the  muzzle  of  his  pistol  never  four 
feet  from  me  during  the  fire.  He  continued 
to  fire  in  the  most  excited  manner  until  he  had 
emptied  his  weapon,  when  I  had  succeeded  in 
getting  my  revolver  with  my  one  hand.  He 
then  started  to  run,  when  I  hastily  fired  as  he 
was  about  to  escape  through  a  door.  I  fired  a 
little  too  quick,  and  just  barked  his  neck  with 
my  bullet.  I  then  sprang  forward  and  drew 
a  bead  on  his  back  as  he  was  running;  but 
from  some  cause  the  hammer  of  my  revolver 
came  down  between  the  tubes.    I  cocked  again. 


and  would  have  got  him  before  he  escaped 
from  the  building  had  it  not  been  that  a  pre- 
tended friend  sprang  forward  and  between  us. 
exclaiming.  'Here,  Cap.,  take  my  pistol.'  I 
subsequently  learned  that  he  too  was  in  the 
plot  to  kill  me.  He  merely  took  that  position 
to  save  his  companion  in  guilt.  My  assailant 
had  attempted  to  get  up  a  row  with  me  in  the 
morning,  on  some  trivial  matter,  and  on  walk- 
ing from  me,  said  significantly,  'I  will  see  you 
again.'  These  words  put  me  so  far  on  my 
guard  as  to  buckle  on  my  revolver.  I  was 
afterwards  told  that  the  squatters  had  agreed 
that,  if  he  would  kill  me,  he  should  have  $500. 
Well,  I  followed  him  up,  he  running  and  1 
pursuing  until  I  got  two  more  shots,  but  at 
long  range,  when  I  became  so  weak  from  loss 
of  blood  that  I  could  not  follow  further.  He 
escaped  from  the  country,  and  was  absent  for 
something  over  a  year. 

"This  last  occurrence  left  me  in  rather  a 
bad  condition,  having  comparatively  lost  the 
use  of  my  right  hand  by  a  saber  cut  in  the 
Mexican  War,  and  now  my  left  shattered  by 
an  assassin's  bullet,  left  me  crippled  in  both 
hands.  And  this  combination  of  circumstances 
has  clearly  demonstrated  to  me  that  the  old 
adage,  'Truth  is  stranger  than  fiction,'  has  been 
verified.  But  this  was  no  secret ;  the  whole 
town  of  Healdsburg  well  knew  of  the  affair, 
which  occurred  in  the  very  place  where  this 
is  written  ;  and  there  were  over  twenty  persons 
in  the  room  when  the  would-be  murderer  com- 
menced shooting.  I  lay  for  three  months  with 
my  hand-wound,  and  some  portion  of  the  time 
in  a  critical  condition  ;  but  at  last  it  healed, 
and  I  again  continued  my  practice." 

Surely,  our  unquailing  veteran  of  the  war 
was  not  the  quality  of  those  alluded  to  by  a 
great  lawyer  already  quoted,  who  "decline 
those  bright  rewards  that  decorate  the  brave, 
and   steal   inglorious  to  the  silent  grave." 

What  we  may  call  his  culminating  personal 
adventure,  is  spoken  of  in  his  book  without 
his  usual  mention  of  names.  His  lawyer-son 
kindly  furnishes  us  with  a  fuller  account,  as 
follows : 

"Bird  Brumfield  was  a  gambler  by  occupa- 
tion, yet  owned  extensive  landed  interests  in 
this  valley.  In  personal  appearance  he  was 
handsome  and  attractive,  and  he  was  noted 
for  his  dexterity  with  a  revolver.  Father  had 
known  him  for  many  years,  and,  as  the  rela- 
tion of  attorney  and  client  existed  between 
them,  they  had  become  reasonably  friendly. 
Sometimes  in  the  year  1869  Bird  Brumfield  and 
another  man.  I  think  his  brother,  assaulted 
a  man  by  the  name  of  Strong  at  Santa  Rosa, 


History  of  the  Bench  and  Bar  of  California. 


613 


this    county,    and    while    his    companion    held 
him,    Bird    Brumtield   literally   carv-ed    Strong, 
inflicting  fourteen   different   stabs,  killing  him 
on  the  spot.     In  some  way,  unknown  to  me  at 
this   time,    Brumfield   escaped   punishment    for 
this  crime.     On  their  first  meeting  after  Brum- 
field's  return  to  Healdsburg,  father  took  occa- 
sion to  characterize  him  as  a  cold-blooded  mur- 
derer.    Brumfield.  stung  by  my  father's  remark 
and  manner,  told  him  that  he  would  have  his 
heart's  blood   for  it,  and  warned  him  to  arm 
himself.     They  met  later  in  the  same  day.  my 
father  at  the  time  being  seated  in  an  arm  chair 
in  a  small  room  or  office  on  West  street,  in 
Healdsburg.     Brumfield  suddenly  opened  the 
door,  having  his  revolver  drawn  and  leveled  at 
the    time.      Father    was    sitting    with    his    leg 
thrown  over  the  arm  of  the  chair,  facing  the 
door,    his    revolver    being   attached    to    a    belt 
worn  about  his  waist.     Seeing  that  Brumfield 
had  his   revolver   leveled  at   his   head,   father 
quickly  shifted  his  head  to  one  side  and  threw 
up  one  hand,  while  with  the  other  he  reached 
for  his  revolver.  Brumfield's  first  shot  ploughed 
through    father's    right    hand,    entering    about 
the  middle  of  the  palm,   shattering  the  bones 
and  tearing  the  arteries  in  a  horrible  manner. 
Seeing  that  his   first  shot  had  not   killed  him 
and  knowing  full  well  my  father's  determina- 
tion, Brumfield  evidently  became  nervous,  for 
he  fired  five  shots  more  in  quick  succession  at 
a  distance  of  not  over  ten  feet  from  my  father, 
and  not  one  of  them  took  effect.     In  the  mean- 
time father  kept  his  eyes  fixed  on  Brumfield's 
and  tried  to  draw  his  revolver  from  where  it 
lay   in   the   belt   on   his   right   hip.      His   right 
hand  being  shattered  this  was  difiicult  to  ac- 
complish   with    his    left.      As    Brumfield    fired 
his    last    shot,    however,    father    succeeded    in 
drawing  his  weapon,  and  as  Brumfield  turned 
and   dashed   through   the   door,   father   took   a 
shot  at  inm  which  cut  the  wood  just  over  his 
shoulder.     Quickly  following  him,  father  took 
another   shot   at   his   as   he   sped   across   West 
street,  the  ball  narrowly  missing  its  mark  and 
burying  itself  in   one   cjf  the   wooden   columns 
supporting   the   balcony    of   the    Union    Hotel, 
where  until  recently  it  was  an  object  of  com- 
ment and  curiosity.     Father  followed   Iiim  on 
tlie  run  across  West  street,  and  tiu-ou^li  sev- 
eral   buildings    until,    exhausted    by    loss    of 
hloou,  he  had  to  give  up  the  chase,  Brumfield 
escaping.     They  never  exchanged  shots  after- 
wards, though  Brumfield  returned  to  Healds- 
burg subsequently. 

"I  should  add  to  the  above  that  Brumfield 
met  his  death  later  on  the  very  spot  where  he 
had    shot    at    father,   a    man   by   the   name   of 


Willis    Zane    killing    him    with    a    gun    loaded 
with  buckshot. 

"Father  continued  in  the  active  practice  of 
law  until  within  six  months  from  the  date  of 
his  death,  when  failing  heallh  prevented  his 
continuing  longer  at  it.  He  was  known 
among  the  members  of  the  legal  fraternity  as 
"The  Fighting  Lawyer  of  Sonoma  County." 
Judge  Temple,  of  the  Supreme  Bench,  can 
verify  much  of  this  and  could  no  doubt  give 
you  other  interesting  anecdotes  of  him  had 
he  the  time  and  inclination." 

Colonel  Norton  was  married  four  times.  In 
18.39.  at  it.  Charles.  Illinois,  he  made  some 
money  on  a  contract  for  cutting  hay  and  be- 
came owner  of  thirteen  town  lots  there.  The 
next  year  at  the  age  of  21,  he  married  a  Miss 
Fisk,  daughter  of  an  educated  settler  from 
Massachusetts — "a  little,  fragile  woman,  sick 
much  of  the  time." 

His  second  wife  was  a  Mrs.  McKinstry, 
for  whom  he  had  procured  a  divorce  in  Pla- 
cerville.  She  was  of  "fine  education  and  com- 
manding appearance,"  and  had  come  from  In- 
diana in  1850  with  her  first  husband,  Professor 
Webb,  who  died  shortly  afterward.  The 
Colonel  refers  to  her  as  "Mrs.  E.  W.  McKin- 
stry." Such  may  have  been  her  husband's  ini- 
tials, but  we  suspect  that  he  used  inadvertently 
the  capitals  of  a  name  distinguished  in  the 
judicial  history  of  California,  the  eminent 
jurist  not  being  related  to  the  defendant  in 
the  divorce  case,  so  far  as  the  record  discloses. 
Colonel  Norton  was  faulty  at  times,  in  recall- 
ing names;  for  instance,  in  alluding  to  Gen. 
J.  W.  Denver,  with  whom  he  says  he  became 
intimately  acquainted,  he  writes  that  the  Gen- 
eral was  then  "smarting  under  the  effect  of 
tlK'  duel  between  himself  and  young  Nelson, 
rditor  of  the  Alfa  Califonua.  which  resulted 
in  the  death  of  the  latter  gentleman." 

It  was  not  Nelson,  but  ex-Congressman  Ed- 
ward Gilbert,  who  was  editor  of  the  Alta, 
and  who  fell  in  a  duel  with  General  Denver. 

Mrs.  Webb— McKinstry— Norton  died  at  the 
end  of  four  years  after  her  marriage  with  the 
Colonel.  On  September  i,  1865,  the  latter  mar- 
ried Miss  Minnie  Molloy,  daughter  of  Dr.  E. 
I'..  Moll(.y.  of  Healdsburg.  She  died  after  six 
years,  le.iving  him  three  children.  She  was 
educited  well,  "was  wholly  domestic  in  her 
nature,  and  looked  upon  the  happiness  of  her 
husband  and  children  as  her  only  aim  in  life." 
On  the  14th  of  January.  1872,  the  Colonel 
married  the  daughter  of  J.  E.  Turner,  of  Sacra- 
mento, "who  has  proved,"  so  he  wrote,  in 
1887.    "an    excellent    mother    to    my    children, 


614 


History  of  the  Bench  and  Bar  of  California. 


which  is  the  kindest  thing  that  can  he  said  of 
a  step-mother." 

Colonel  Norton  loved  poetry  and  wrote  some 
verse.  Orson  Hyde,  in  a  letter  to  him,  which 
has  been  preserved,  dated  February  28,  1856, 
uses  these  words  :  "Indulge  me  while  I  quote 
a  poem  illustrative  of  what  I  have  written — 
especiallj'  as  the  poetic  organ  stands  pre-emi- 
nently developed  in  the  cap-stone  of  your  own 
superstructure." 


Colonel  Norton  died  at  Healdsburg  on  the 
i6th  of  August,  1891,  leaving  three  children, 
Mary  Elizabeth  Nevin,  Edward  M.,  an  attor- 
ney-at-law,  and  Lewis  A.,  the  last  named  being 
of  late  years  a  deputy  in  the  office  of  the  sec- 
retary of  state. 

The  Colonel  accumulated  a  handsome  estate 
for  his  district,  worth  easily  a  hundred  thous- 
and dollars. 

THE  EDITOR. 


SOME  OF  THE 
STRONG  MEN 
^OF  TODAY  .^ 


W.  H.  L,  Barnes 


ilia  &  eSla  (&  cib  cS>  c&  {Sat^aiSa'M' 


HISTORY  of  the 
BENCH  anrf  BAR 
of  CALIFORNIA 


ejg«^!Jp^«j9«Jie^e;ip<!^  ef , 


SOME  of  the  STRONG  MEN  of  TODAY 


W.  H.  L.  BARNES. 

General  Barnes  was  born  at  West  Point, 
New  York,  February  ii,  1836,  his  father,  James 
Barnes,  an  officer  in  the  regular  army,  being 
at  the  time  stationed  at  that  place.  In  1840 
James  Barnes  resigned  from  the  army  and 
entered  upon  an  active  business  of  railroad 
construction,  as  engineer  of  some  of  the  long- 
est routes  of  travel  in  the  United  States.  For 
several  years  he  was  employed  in  Russia  as 
consulting  engineer  of  railroads  between  St. 
Petersburg  and  Moscow.  At  the  outbreak  of 
the  American-  rebellion  he  returned  to  volun- 
teer service,  was  commissioned  major-general 
of  volunteers  and  served  throughout  the  war 
in  the  Army  of  the  Potomac.  In  1868  he  died, 
of  wounds  received  at  Fredericksburg  and 
Gettysburg. 

William  H.  L.  Barnes  was  educated  at  Yale 
College,  in  the  class  of  1855.  He  studied  law 
in  Springfield.  Massachusetts,  with  Hon.  Reu- 
ben A.  Chapman,  one  of  the  most  distin- 
g^uished  lawyers  of  that  state,  who  afterward 
became  Chief  Justice  of  the  Massachusetts 
Supreme  Court.  Before  completing  his  legal 
studies  he  removed  to  New  York  city,  where 
lie  entered  the  office  of  Charles  O'Conor  ;i-> 
managing  clerk,  remaining  in  that  position  and 
continuing  his  studies  for  four  years. 

William  H.  L.  Barnes  and  Joseph  H.  Choate, 
the  present  United  States  Ambassador  at  the 
Court  of  St.  James,  made  up  their  minds  at 
the  same  time  to  commence  practice.  They 
formed  a  partnership,  which  had  continued 
only  a  short  time  when  the  war  hrokr  nut, 
and  Mr.  Barnes  went  into  the  army.  He  was 
on  General  Fitz-John  Porter's  staff.  Con- 
tracting sickness  in  the  field  he  left  the  serv- 


ice and  came  to  California.  This  was  in  April, 
1863.  He  had  no  idea  of  remaining  here,  his 
object  being  to  regain  his  health;  but,  bringing 
a  letter  from  Charles  O'Conor  to  the  Hon. 
Eugene  Casserly,  he  was  invited  by  the  latter 
to  a  business  connection,  which  he  concluded 
to  accept.  In  August,  1863,  commenced  his 
partnership  with  Mr.  Casserly,  which  lasted 
until  Mr.  Casserly's  election  to  the  United 
States  senate  in  i86g. 

General  Barnes  quickly  obtained  recognition 
from  the  profession  and  the  public  as  an  ac- 
complished advocate.  His  manly  presence,  pol- 
ished address,  quickness  of  perception,  dili- 
gence in  business  and  excellent  knowledge  of 
the  law,  won  him  speedily  many  valuable 
friends  and  clients,  and  placed  him  abreast  of 
his  ablest  brothers.  He  is  gifted  with  rare 
powers  of  conversation.  Being  a  willing  talker, 
his  wealth  of  speech  and  his  stores  of  infor- 
mation are  constantly  exhibited,  his  talk  be- 
ing sprightly  and  engaging,  always  sensible, 
and  usually  flavored  with  the  genuine  extract 
of  mirth.  He  is  a  most  versatile  man,  scholar, 
linguist,  actor,  author,  artist,  lecturer,  law- 
yer. 

In  the  line  of  his  profession,  General  Barnes 
has  always  maintained  a  very  large  busi- 
ness. 

In  January,  1874.  in  the  United  States  Cir- 
cuit Court,  General  Barnes  was  called  into 
what  is  known  as  "The  Crusader  Case,"  be- 
ing the  trial  of  the  officers  of  the  ship  Cru- 
sader on  charges  of  cruelty  to  their  sailors. 
The  crew  of  that  vessel  were  Scandinavians, 
and  the  Scandinavian  Society  of  San  Fran- 
cisco, having  a  large  membership,  took  up 
the  cause  of  the  outraged  sailors  with  vigor, 
employing  General  Barnes  to  assist  the  United 


618 


History  of  the  Bench  and  Bar  of  California. 


States  District  Attorney  to  prosecute.  After  a 
long  trial,  the  accused  were  convicted.  For 
his  masterly  conduct  of  this  case.  General 
Barnes  was  knighted  by  Oscar,  King  of  Swe- 
den, who  sent  him  the  usual  patent  and 
jewels. 

There  is  one  advantage  possessed  l)y  Gen- 
eral Barnes  which  makes  him  feel  perfectly 
at  home  in  cases  like  that  just  noticed.  It  is 
his  familiarity  with  the  structure  and  furni- 
ture of  vessels,  and  with  the  terms  mostly 
used  at  sea.  He  knows  as  much  as  the  aver- 
age ship  captain  does  about  hailliards  and  fore- 
royals,  and  studding  sail-booms  and  main- 
cross- jack  braces,  and  lazarets,  and  jib  down- 
hauls,  and  mizzen  tops,  and  leech  lines,  and 
jib  sheet  spreaders,  etc.  He  knows  every 
sheet,  stick  and  rope  of  a   ship. 

He  did  not  derive  his  nautical  lore  by  fol- 
lowing the  sea,  but  owing  to  his  fondness  of 
the  sea.  He  has  been  an  enthusiastic  yachts- 
man from  his  vouth,  and  has  studied  marine 
irchitecture,  a  most  beautiful  miniature  speci- 
men of  which  adorns  his  office. 

General  Barnes  was  leading  counsel  for  the 
widow  of  the  rich,  eccentric,  pioneer  lawyer, 
Horace  Hawes,  and  succeeded  in  breaking  his 
will.  He  received  a  fee  of  $5o,ooo.  This  was 
in  November,  1871.  For  his  connection  with 
the  Sharon  case  see  the  article  thereon. 

In  the  domain  of  art  he  is  what  is  called 
"a  wide  liker."  His  father  took  him  from  the 
easel  to  send  him  to  college.  He  is  a  musi- 
cian, an  ardent  lover  of  the  "concord  of  sweet 
sounds."  and  plays  with  skill  the  piano,  cornet 
and  other  instruments.  He  speaks  French  as 
fluently  as  English,  and  is  accomplished  in 
Latin  and  Greek.  He  is,  too,  an  ambidexter, 
the  only  true  one  whom  we  have  met  at  our 
bar.  His  offices  are  sumptuously  furnished, 
and  his  library  contains  five  thousand  law 
books  and  two  thousand  miscellaneous  works. 
We  asked  him  once  who  were  his  favorite 
authors.  "I  like  all  authors,  and  don't  know 
which  I  like  best,"  he  replied. 

General  Barnes  in  court  attracts  the  gen- 
eral eye.  His  arguments  are  logical,  his  lan- 
guage chaste.  Having  a  good  voice,  a  fine 
presence,  precise  ideas  and  a  lively  manner, 
he  always  creates  a  good  impression  and 
leaves  a  pleasant  memory.  He  is  most  ef- 
fective before  a  jury.  While  calmly  appeal- 
ing to  their  reason,  he  is  constantly  throwing 
off  witticisms  for  their  entertainment.  Al- 
though he  sometimes  addresses  juries  at  great 
length,  he  is  never  tiresome ;  he  never  permits 
their  interest  to  fiag. 


the  play  of  '*Solid  Silver"  was  written  by 
General  Barnes  during  a  period  of  four  days, 
when  he  was  detained  at  home  by  sickness. 
Receiving  a  visit  at  that  time  from  the  late 
\\  .  C.  Ralston  and  the  tragedian  McCuilough, 
he  showed  them  the  production  and  they  ex- 
pressed their  gratification.  McCuilough  placed 
it  on  the  stage  in  San  Francisco,  and  it  was 
received  with  favor.  It  was  afterwards  pro- 
duced in  many  of  our  Eastern  cities  and  in 
Australia.  From  the  sales  of  rights  to  per- 
form it  the  General  received  about  $3,500.  He 
has  a  brotherly  feeling  for  great  actors  and 
cultivates  their  society.  He  was  a  stockholder 
of  the  old  California  Theater  Association,  of 
which  enterprise  he  was  a  zealous  projector. 
He  was  President  of  the  Mercantile  Library 
Association  in  1865.  He  was  the  most  active 
worker  in  the  enterprise  of  erecting  a  struc- 
ture worthy  of  that  institution  and  credita- 
ble to  the  city.  There  was  no  money  on  hand. 
"We  put  it  up  on  gall,  on  nothing  else,"  said 
he  one  day,  in  alluding  to  it.  Then  came  the 
great   lottery,   which   saved   it. 

The  General's,  connection  with  the  Mercan- 
tile Library  of  San  Francisco,  and  his  valua- 
ble services  rendered  to  that  noble  institu- 
tion are  gratefully  remembered  by  our  people. 
When  Murphy,  Grant  &  Co.  were  pressmg 
a  large  claim  against  the  association.  General 
Barnes  and  the  late  R.  B.  Swain  met  in  an 
unfinished  room  in  the  new  building,  and  de- 
liberated unon  the  crisis,  over  an  old  flour 
barrel  filled  with  lime.  It  was  settled  upon 
as  a  happy  suggestion  that  the  General  should 
appear  before  the  footlights.  "I'll  play."  said 
he ;  "I  think  I  can  do  the  business."  He  went 
to  Lawrence  Barrett,  lessee  of  the  California 
Theater,  and  revealed  the  result  of  the  confer- 
ence. Barrett  "stood  in."  He  suggested  Ham- 
let, and  Elliott  Gray  in  "Rosedale. "  The 
General  said :  "I'd  rather  tackle  "Rosedale," 
and  that  play  was  adopted.  The  seats  of  the 
theater  for  the  night  of  the  General's  appear- 
ance were  sold  at  public  auction,  no  seat 
bringing  less  than  five  dollars,  except  those 
of  the  gallery.  When  the  night  arrived  the 
theater  overtlmvcd  with  the  mind  and  fashion 
of  the  city.  The  performance  was  a  success, 
and  won  plaudits  from  the  critics.  The  Gen- 
eral's voice  was  good,  his  conception  correct, 
his  playing  spirited  and  his  large  and  fault- 
less figure  showed  to  fine  advantage.  The 
net  receipts  were  $5,240.  which  paid  off  all 
the  indebtedness  of  the  library. 

In  the  summer  of  1897  the  San  Francisco 
F.xa miner  gathered   from   week  to   week  what 


John  D.  Bkknell 


History  of  the  Boich  and  Bar  of  California. 


619 


we  may  call  the  ruminations  of  thinking  men 
about  their  boyhood  days.  When  its  repre- 
sentative called  on  General  Barnes,  he  de- 
lightfully mused  as  follows : 

"When   I    was   a   boy That   carries  me 

through  many  long  years,  and  over  many  miles 
abundantly   wearv.     What   did   I    like   best   to 
do   when   I   was  a  boy?     Though  a  native  of 
New  York,  my  childhood  and  early  youth  were 
passed    in    Springfield,    Massachusetts.      Have 
you  ever  been  there?     If  not,  let  me  tell  you 
that   it  always  was  and  is  the  county   seat  of 
Hampden    county,    through    which    runs    the 
beautiful   Connecticut   River,   and   is   the   head 
of   its   navigable    water.      In   my   time   it    was 
hardly  more  than  a  village,  a  quiet,  primitive 
sort   of   place,   inhabited   by   the   best   of   New 
England   people — families    whose   names    went 
back  to  the  Indian  wars,  colonial  life  and  rich 
in   tradition — a   sturdy,   laborious,   God-fearing 
folk  that  rose  early,  worked  hard,  and  wcp.i  l:> 
bed  when  the  nine  o'clock  curfew  rang  from 
the  steeple  of  the  rigid  and   unbeautiful   Uni- 
tarian  church.      It    was   an   ideal   home   for   a 
country   boy.      There    were   splendid   hills    for 
coasting,    and    broad    sheets    of    river    ice    for 
skating   in   the   winter,   safe   water   for   sailing 
and   swimming   in    summer,   plenty   of   brooks 
and   small   tributaries   where   trout   abounded ; 
glorious    chestnut    trees    that    showered    their 
brown   nuts   in   the  early   fall ;   forests  of  ma- 
ples,   whose    purple   and   crimson    and   golden 
drapery  was  built  by  the  early  frosts  and  shone 
in    the    hazy    Indian    summer ;    multitudes    of 
butternuts,   rude   of   husk,   but   sweet   of  meat 
that  together  feasted  the  eye  and  satisfied  the 
most    viracious    api)etite.       I    was    a    hcaltliy, 
hearty,    robust   boy,    and    I    coasted    down    the 
long   hills   and    skated   on    the    river,   wctU    in 
swimming  almost   as   soon   as   the   ice   melted, 
waded   the   streams   to   catch   the   trout,   sailed 
and  rowed,  hunted  the  hills  for  partridge  and 
the  small  game  of  the  country,  played  truant  as 
often    as    I    dared    offend    my    various    peda- 
gogues, and  somehow  or  other  acquired  infor- 
mation   enough    of    Latin,    Greek,    and    niathc- 
niatics    lo    squeeeze    into    colk-ge.       1     iiad    a 
happy    home,    a    tender    mother,    an    indulgent 
father,   who   loved   study   and   athletic   amuse- 
ments, and  let  us  do  much  as  we  pleased,  so 
long  as   there   were   no   striking   violations   of 
New    England   boy-home    law  ;    and    tlioiigii    1 
used    to    get    a    whipping    pretty    nearly    every 
day  at   school    I   never   received   a   tillie  of  the 
corporal  attention  1  deserved  at  home.     I  liked 
everything   in   nature,   all   exercise,   all   games, 


including  baseball  and  football— not  the  scien- 
tifically murderous  football  of  today,  with  its 
systematized  savagery,  nor  the  play-to-rule 
baseball  of  today,  but  they  were  good,  hot, 
honest  games,  played  with  a  will,  not  often 
with  temper,  never  with  injury.  My  father 
was  a  capital  reader,  and  many  an  evening  we 
had  with  Longfellow  and  Holmes,  with  Cooper 
and  Irving,  and,  chief  of  all,  dear  Charles 
Dickens !  My  favorite  books  were  "Thad- 
deus  of  Warsaw"  and  "Nicholas  Nickleby." 
The  "Curiosity  Shop"  came  out  in  numbers, 
and  we  waited  for  them  with  wonderful  and 
tender  interest.  When  that  came  which  told 
of  the  death  of  little  Nell,  so  far  from  the 
friends  who  were  searching  England  for  her, 
and  the  grandfather,  I  remember  how  my  dear 
father's  voice  faltered,  and  at  last  ceased  as 
he  covered  his  loving  face  with  the  paper,  and 
we  all  cried  together  and  mourned  her  touch- 
ing death.  Ah  !  those  were  dear,  old,  simple, 
innocent  days — days  without  sorrow  and  nights 
of  peaceful  rest,  days  when  I  loved  every- 
body, believed  in  everybody,  found  joy  in 
mere  breathing  and  hugged  all  nature  to  my 
careless,  laughing  heart.  Nothing  like  that 
boy's  life,  believe  me,  in  kin  or  degree,  have 
I  known  since  then.  I  hope  I  shall  go  back 
to  them  mf)re  and  more  as  I  grow  still  older, 
and  die  babbling  of  the  green  hillsides  and 
the  shining  waters  of  the  Connecticut  val- 
ley." 


JOHN   D.   BICKNELL. 

This  worthy  l)ar  leader  of  Los  Angeles  made 
an  e.\ten<led  stay  in  California  long  before 
he  settled  iiere,  and  l)etiirt.'  lie  look  up  the 
study  of  the  law.  His  adoption  of  this  State 
as  his  permanent  home  and  the  field  of  his 
professional  labors  was  a  most  deliberate  act. 

Mr.  Bicknell  was  born  in  Vermont,  in  June. 
|8.^S.  In  his  early  childhood  his  parents  re- 
moved lo  Jefferson  county.  Wisconsin.  He 
was  there  first  ediio.'itcd  in  tlie  public  schools, 
and  afterwards  .tileiiiled  Alhiim  Academy. 
Later  he  was  for  •.onie  lime  in  the  Western 
Reserve  Seniin.iry  in  ( )liiu.  In  ilie  si)niig  of 
1859,  when  he  was  m.irly  Iwenty-one.  he  was 
in  such  a  poor  state  of  iiealth  ihal  he  went 
Sotitli.  and  p.assed  a  year  in  ili.w.ird  couiUy. 
Missouri.  Receiving  no  physical  iienefil,  he 
joined  an  eniigr.ini  Main,  in  April.  t86o.  and 
started  across  the  plains  for  California.  He 
was  chosen  to  take  full  charge  of  the  train, 
in  which  there  were  .ibout  eighty  men,  several 
fanulit's.    having    forty    wagons,    and    driving 


620 


History  of  the  Bench  and  Bar  of  California. 


about  1,000  head  of  cattle.  There  were  many 
hardships,  and  perils  from  Indians,  but  he 
brought  the  train  and  property  to  the  Cali- 
fornia line  in  fair  condition,  and  without 
the  loss  of  a  life. 

Mr.  Bicknell  remained  on  the  coast  until 
the  fall  of  1863.  traveling  through  the  moun- 
tains of  Northern  California,  and  in  Oregon 
and  Washington.  He  lingered  some  in  Idaho, 
and  finally  went  back  to  Wisconsin.  He  was 
greatly  strengthened  in  his  physical  constitu- 
tion, and  now  entered  the  State  University,  in 
the  fall  of  1863,  and  completed  his  studies. 
He  then  began  the  reading  of  law  in  Madison, 
in  the  office  of  H.  W.  and  D.  K.  Tenney.  He 
was  admitted  to  the  bar  of  the  Supreme  Court 
of  Wisconsin  in  December,  1865.  He  seems 
to  have  been  quite  deliberate  in  setting  out  on 
his  professional  life,  for  he  now  passed  an- 
other year  in  travel,  in  the  Southern  states, 
finally  settling  down  at  Greenfield,  Dade 
county,  Missouri.  This  proved  a  good  field 
for  law  business.  The  young  attorney,  was 
well  received,  became  trusted  and  popular,  and 
acquired  a  practice  extending  over  several 
counties.  He  had  asthmatic  troubles,  how- 
ever, and  felt  the  necessity  of  a  more  con- 
genial climate. 

It  was  in  the  spring  of  1872,  twelve  years 
after  his  first  visit,  that  Mr.  Bicknell  came  to 
California  to  remain.  He  had  not  seen  the 
southern  part  of  the  State  before,  but  he  now 
located  at  Los  Angeles.  That  place  has  al- 
ways since  been  his  home,  and  the  scene  of 
a  long  career  of  prosperity.  He  early  formed 
a  partnership  with  Stephen  M.  White,  which 
continued  down  to  January  l,  1888.  The  firm 
of  Bicknell  &  White  did  a  great  and  varied 
business,  flourishing  as  few  law  firms  have 
ever  done.  Continuing  the  practice  alone,  Mr. 
Bicknell  has  had,  since  the  year  1888,  and 
still  has  among  his  clients  the  Southern  Pa- 
cific Railroad  Company.  He  has  been  attorney 
for  the  Los  Angeles  Railway  system  since  the 
beginning  of  construction.  He  has  always  been 
interested  in  important  business  enterprises, 
apart  from  his  profession.  He  has  been  pres- 
ident of  the  Abstract  and  Title  Insurance 
Company,  vice-president  of  the  First  National 
Bank,  and  has  been,  and  is,  a  director  in 
various  corporations.  Prominent  as  a  Mason. 
he  was  for  several  years  commander  of  the 
Coeur  de  Lion  Commandery,   No.  9. 

Mr.  Bicknell  has  been  married  twice.  His 
first  wife  was  Miss  Hatch,  of  Chittenden 
county,   Vermont.     She   died   soon   after   mar- 


riage. The  present  Mrs.  Bicknell  was  a  daugh- 
ter of  Alexander  M.  Christian,  of  Todd 
county,  Kentucky.  This  marriage  took  place 
when  Mr.  Bicknell  was  established  in  prac- 
tice in  Missouri.  There  are  two  grown  daugh- 
ters of  this  union.  Mr.  Bicknell,  who  is  uni- 
versally looked  upon  as  one  of  the  sages  of 
the  community,  and  who  is  also  one  of  its 
most  solid  men,  from  a  business  and  financial 
standpoint,  is  still  actively  following  his  pro- 
fession. Dr.  Bicknell,  the  prominent  physi- 
cian of  Los  Angeles,  is  his  brother. 


JOHN  S.  CHAPMAN.  ] 

John  S.  Chapman,  pre-eminent  at  the  Los 
Angeles  bar,  was  born  58  years  ago  in  the  town 
of  Batesville,  Arkansas.  He  came  in  1859 
across  the  plains,  and  located  in  the  northern 
part  of  this  State  in  the  town  of  Susanville, 
Lassen  county.  He  began  reading  law  about 
1870,  while  serving  as  a  deputy  sheriff  in  the 
office  of  the  sheriff  of  that  county.  About  that 
time  he  married  a  daughter  of  John  E.  Ward, 
then  one  of  the  leading  lawyers  of  northern 
California,  and  was  himself  soon  admitted  to 
the  bar  and  commenced  to  practice.  He  served 
a  term  as  County  Judge  of  Lassen  county, 
after  which,  desiring  to  locate  in  a  more  prom- 
ising place,  he  removed  to  San  Francisco ;  but 
was  there  only  a  few  weeks,  when  hearing 
encouraging  accounts  of  the  probable  growth 
of  Los  Angeles,  he  removed  to  that  city,  en- 
gaged offices  in  the  old  Baker  block,  and  with- 
out an  acquaintance  in  the  city,  proceeded 
to  wait  for  clients.  It  was  not  very  long  be- 
fore he  became  associated  with  Judge  Bicknell 
(who  had  shortly  before  established  himself 
at  Los  Angeles),  in  a  case  or  two;  then  with 
J.  A.  Graves,  then  with  Senator  White,  and 
finally  was  secure  in  a  promising  practice  of 
his  own.  He  then  formed  a  partnership  with 
Mr.  Graves,  and  flourished  with  him  for  some 
ten  years,  when  his  brother-in-law.  Judge  J. 
W.  Hendrick,  came  to  Los  Angeles  (about 
1883)  and  the  firm  became  Chapman  &  Hen- 
drick, and  so  continued  until  1895,  when 
Judge  Hendrick  retired  from  practice. 

There  is  hardly  a  branch  of  civil  law  into 
which  Mr.  Chapman's  varied  experience  has 
not  led  him  ;  he  is  on  one  side  or  the  other  of 
a  large  portion  of  the  important  litigation  of 
all  kinds  that  arises  in  his  section  of  the 
State,  but  if  he  can  be  said  to  have  any  spe- 
cialty, it  would  probably  be  water  litigation, 
for  there  is  hardly  a  case  involving  rights  to 
the    numerous   litigation-producing   streams   in 


History  of  the  Bench  and  Bar  of  California. 


621 


Southern  California  in  ihe  Reports  of  our 
State  in  which  his  name  does  not  appear  as 
a  representative  of  one  side  or  the  other.  He 
has  been  the  attorney  for  the  Los  Angeles 
City  Water  Company  and  the  Crystal  Springs 
Land  &  Water  Company  in  all  their  numer- 
ous and  long-drawn-out  clashes  wilh  the  city 
of  Los  Angeles. 

John  Garhcr  is  now  associated  with  him  in 
the  suits  of  the  city  against  the  Los  Angeles 
Water  Company.  He  has  taken  an  important 
part  in  all  the  litigation  involving  the  rights 
of  owners  along  the  Los  Angeles  River  to  un- 
derground waters,  affecting  property  of  enor- 
mous value.  He  has  had  a  wide  experience 
in  mining  suits,  and  was  one  of  the  defenders 
of  the  mineral  claimants  in  the  Kern  River 
oil  districts  against  the  "scripper"  claimants 
in  the  Federal  Courts  in  his  district. 

His  success  is  probably  due  largely  to  his 
immense  capacity  for  work ;  his  tireless  and 
resourceful  studies,  investigations  and  re 
searches,  supported  by  a  wonderful  memory 
to  retain  knowledge,  and  sound  judgment  to 
apply  it.  He  is  careful  in  all  matters ;  loyal 
to  all  clients  and  enjoys  the  confidence  and 
respect   of  all   with   whom  he   is  associated. 

In  court  he  always  has  his  subject  well  in 
hand,  and  speaks  with  remarkable  ease  and 
fluency.  His  efforts  are  without  much  at- 
tempt at  oratorical  embellishment  or  display; 
lint  straight  to  the  point,  with  convincing 
force,  and  remarkable  for  clearness  of  presen- 
tation. 

Mr.  Chapman  is  strictly  a  home  man,  tak- 
ing little  or  no  part  in  politics  or  public  af- 
fairs, although  an  interested  outsider.  His 
leisure  hours  are  spent  quietlj'^  among  a  large 
family  of  children.  There  are  six,  all  but  one 
grown.  Two  are  married,  one  daughter  being 
the  wife  of  A.  B.  McCutchcn,  of  the  law  firm 
of   Goodrich   &   McCutchen. 

.\  well-known  member  of  the  Los  Angeles 
bar.  who  has  known  Judge  Chapman  inti- 
mately for  more  than  a  quarter  of  a  century, 
gives  the  following  just  estimate  of  him  as  a 
man  and  as  a  lawyer : 

"Ask  Judge  Chapman  what  there  is  that  has 
been  notable  or  strikingly  interesting  in  his 
life,  and  his  modesty  of  character  would  un 
questionably  lead  him  to  say  tliat  there  had 
not  been  anything  very  striking  or  startling 
in  his  career,  but  that  it  had  been  a  long  strug- 
gle during  which  he  faced  the  hardship  and 
scant  opportunity  of  frontier  life,  adversity, 
the  burden  of  a  growing  family,  poverty,  ill 
health  at  times,  and  other  obstacles,  for  years. 


before  he  won  success.  He  has  really  lived 
a  life  of  more  than  ordinary  achievement,  and 
he  has  accomplished  an  honorable  success  that 
is  worthy  of  all  emulation  by  the  young  and 
aspiring  men  of  his  profession. 

From  his  very  first  years  at  the  bar  he  pro- 
foundly impressed  his  friends  with  his  per- 
sistent and  untiring  diligence,  his  capacity  for 
work,  his  never-ceasing  effort  in  the  study 
and  preparation  of  his  cases,  to  analyze  first 
the  facts  to  ascertain  what  was  the  truth, 
what  was  the  evidence,  and  where  the  prob- 
abilities lay  as  respects  the  weight  of  the  tes- 
timony, and  next  to  search  out  every  possible 
legal  principle  that  might  aid  him  in  reaching 
a  correct  and  accurate  conclusion. 

He  was  always  possessed  of  a  marvelous 
memory  that  enabled  him  to  remember,  as  he 
does  to  this  day,  the  doctrine  of  any  case  he 
has  ever  read  or  studied   with  attention. 

He  has  ever  been  a  man  of  the  purest  pri- 
vate life,  and  he  never  indulged  any  habits 
that  in  anywise  conflicted  with  the  severe  re 
quirements  of  his  profession  or  his  duty,  pub- 
lic or  private.  He  seemed  to  have  but  two 
great  ambitions,  first,  to  make  his  family  happy 
and  comfortable,  and  to  enjoy  as  much  of  their 
society  as  he  could,  and  next,  to  be  as  thor- 
ough, accurate,  able  and  skillful  in  his  profes- 
sional work  as  long  and  laborious  hours  and 
the  most  conscientious  effort  would  permit. 

When  other  men  of  his  age,  station  and 
business  in  life,  in  that  old  frontier  community 
where  he  lived  for  years,  were  usually  down 
at  the  saloon  playing  games  of  cards  or  bil- 
liards, Judge  Chapman,  between  whiles,  when 
business  wasn't  rushing,  was  in  his  office,  toil- 
ing over  his  books  and  searching  out  author- 
ities, and  polishing  up  his  cases,  so  as  to  make 
them  as  fipished,  perfect  and  clear  as  possi- 
ble, or  hunting  up  and  settling  doubtful  ques- 
tions that  had  presented  themselves. 

The  result  was  that  very  early  at  the  bar 
of  Lassen  county  and  throughout  Northern 
California,  he  established  a  high  reputation 
for  thorough  accuracy,  not  only  in  all  the 
I)rinciples  and  rules  of  practice  that  bore  upon 
his  cases,  but  for  the  possession  of  a  wide 
knt)wledgc  of  the  law  generally,  both  written 
and  unwritten.  He  had  this  standing  through- 
out Northern  California  before  he  went  to 
the  legislature  in  1875-76.  In  1879  lie  re- 
moved to  Los  Angeles,  where  he  has  since 
resided. 

I  he  same  incessani  diligence  and  effort  that 
distinguished  his  early  life,  and  which  had 
sent  him  to  his  office  early  and  kept  him  there 


622 


History  of  the  Bench  and  Bar  of  California. 


late  every  business  day  except  when  he  was 
engaged  in  court,  has  marked  his  professional 
life  throughout  the  succeeding  time,  and  no 
lawyer  at  the  bar  of  that  city  during  the  past 
twenty  years  has  done  more  professional  toil 
or  tried  more  cases,  or  written  more  briefs,  or 
made  any  greater  number,  or  more  able, 
learned,  and  profound  arguments,  both  in  the 
State  and  Federal  Courts,  than  has  Judge 
Chapman. 

His  ideals  as  to  the  duty  which  a  man  owes 
as  a  citizen,  as  the  head  of  a  family,  as  a  friend, 
and  as  a  member  of  his  profession,  are  the 
most  commendable.  In  his  early  years  he  had 
few  opportunities  for  obtaining  an  education, 
l)ut  with  a  mind  naturally  studious  and 
thoughtful,  he  turned  instinctively  to  the  care- 
ful reading  of  the  best  books— especially  those 
of  an  historical  character,  and  he  made  many 
of  them  his  own.  His  knowledge  of  the  Bible 
is  probably  not  equaled  by  that  of  any  other 
lawyer  in  Southern  California.  He  has  not 
given  so  much  attention  to  miscellaneous  or 
light  reading,  but  it  has  been  rather  to  the 
more  solid  and  serious.  His  acquirements, 
therefore,  have  more  than  compensated  for 
the  lack  of  early  opportunity.  He  possesses 
a  singular  faculty  for  original  and  pictur- 
esque expression,  and  illustration,  both  in 
the  course  of  his  arguments  and  in  conver- 
sation. His  diction  is  forceful,  always  clear, 
and  even  elegant,  and  his  use  of  language  pre- 
cise and  more  or  less  ornamented,  not  with 
the  flowers  of  speech,  but  striking  and  in- 
genious illustrations.  And  at  the  same  time 
he  possesses  a  great  command  over  the  com- 
mon speech  and  homely  illustrations  that  have 
always  distinguished  the  early  settlers  of  Cal- 
ifornia, who  lived  on  the  frontier.- 

He  is  naturally  a  man  of  infinite  jest,  but 
the  burdens  and  cares  growing  out  of  his 
early  struggles  have  tended  to  repress  this  dis- 
position, and  to  give  to  his  mind  a  more  som- 
ber cast  than  it  would  have  otherwise  taken 
on.  If  he  had  possessed  more  leisure  to  give 
to  such  matters,  he  could  undoubtedly  have 
distinguished  himself  as  a  man  of  humor, 
although  his  humor  at  times  takes  on  a  cer- 
tain grim,  sarcastic  tone,  that  betrays  a  pessi- 
mistic view  of  human  nature  and  public 
questions. 

He  is  extremely  fond  of  music,  especially 
of  the  opera,  and  never  fails  to  hear  all  the 
great  singers  and  musicians. 

In  ordinary  intercourse  among  men,  Judge 
Chapman   is   of   rather   serious   manners,   and 


apparently,  to  most  people  unacquainted  with 
him,  of  a  solemn  turn  of  mind.  But  lo  his 
intimate  friends,  when  he  is  not  burdened 
with  the  care  of  his  laborious  practice,  he  is 
a  man  of  rare  social  charm  and  geniality. 

A  stranger  casually  meeting  him  would  not 
at  first  be  impressed  w-ith  his  conversational 
abilities,  because  of  his  habitual  reserve,  but 
he  is  a  most  fluent,  brilliant  talker,  and  the 
moment  he  opens  up  the  discussion  of  any  sub- 
ject which  has  received  his  attention,  it  mat- 
ters not  what  it  may  be,  the  listener  will  in- 
variably find  himself  charmed  and  delighted 
with  the  clearness  of  his  statement,  the  ac- 
curacy of  his  knowledge,  the  elegance  in  the 
choice  of  his  language,  when  he  chooses  to 
make  it  so,  and  then  again,  its  quaint,  homely 
simplicity,  and  the  striking  originality  of  his 
ideas,  often  illustrated  by  anecdote. 

He  easily  stands  at  the  head  of  the  bar  of 
Southern  California,  and  is  a  man  who  is  re- 
vered and  respected  universally  by  the  bench 
and  bar  alike,  not  only  for  his  attainments  in 
knowledge  of  substantive  law,  for  his  wide 
grasp  of  legal  principles,  for  the  ease  with 
which  he  analyzes  and  masters  a  complicated 
mass  of  facts,  and  for  the  readiness,  force  and 
power  with  which  he  weaves  and  molds  them 
into  great  arguments,  but  as  well  for  his  pos- 
session of  those  higher  qualities  of  absolute 
honesty  and  integrity,  and  of  rugged  man- 
hood. 

He  is  largely  consulted  and  retained  by 
other  attorneys  as  associate  counsel  in  all  kinds 
of  important  business,  other  than  criminal, 
and  in  all  the  courts,  both  State  and  Federal. 

He  has  all  of  the  accomplishments  which 
make  a  great  trial  lawyer  in  the  lower  courts, 
and  all  of  the  oratorical  and  mental  powers 
which  make  a  formidable  antagonist  in  the 
argument  of  cases,  whether  in  the  lower  court, 
before  a  jury,  or  before  the  Supreme   Court. 

No  man  in  Southern  California  is  listened 
to  with  greater  respect  or  interest  than  Judge 
Chapman.  He  never  tries  to  create  any  dra- 
matic effects,  or  any  effect  other  than  to  pro- 
duce in  the  minds  of  his  hearers  the  same 
clear  conception  of  the  law  of  his  case,  and 
of  the  right  conclusion  to  be  drawn  from  the 
facts,  which  are  present  in  his  own  mind. 

Judge  Chapman  is  a  man  of  large  build, 
though  quiet  presence,  standing  over  six  feet, 
and  weighing  near  250  pounds.  He  has  a  large 
dome-shaped  head,  and  a  full,  dark,  penetrat- 
ing eye,  with  a  clear  open  expression  of  coun- 
tenance that  at  once  wins  confidence  and  re- 


D.   §M.  Detmas 


History  of  the  Bench  and  Bar  of  California. 


625 


spect,  and  shows  forceful  manhood,  and  a 
character  wholly  without  guile. 

In  his  arguments  he  shows,  at  times,  the 
powers  of  mind  that  would  have  made  him 
a  great  metaphysician,  if  he  had  turned  his 
attention  to  studies  in  that  line.  He  has  great 
originality  of  thought. 

He  has  been  prominently  identified  with 
most  of  the  leading  and  important  litigation 
of  Southern  California  for  the  past  two  dec- 
ades, and  through  his  learning,  ability,  force 
and  integrity  he  has  been  a  potent  factor  in 
molding  and  directing  the  course  and  current 
of  its  judicial  history." 


D.  M.  DELMAS. 


This  distinguished  lawyer,  eminent  in  every 
department  of  practice,  was  born  in  France, 
on  April  14,  1844.  In  1856  he  entered  Santa 
Clara  College,  an  institution  in  which  many 
of  our  most  honored  citizens  have  been  edu- 
cated. He  was  graduated  in  1862,  and  in  1863 
received  the  degree  of  master  of  arts  with  the 
highest  honors.  Entering  the  law  department 
of  Yale  College,  he  received  from  that  imi- 
versity,  in  1865,  the  degree  of  bachelor  of  laws, 
and,  at  the  same  time,  was  admitted  to  the 
bar  of  the  state  of  Connecticut.  Returning 
shortly  thereafter  to  this  State,  he  was  ad- 
mitted, in  February,  1866,  in  the  Supreme 
Court  of  this  State.  In  May  of  that  year 
he  opened  an  office  in  San  Jose  with  Hon.  B. 
D.  Murphy,  who  has  since  filled  for  several 
terms  the  office  of  mayor  of  that  place,  as  well 
as  that  of  assemblyman  and  senator  from  Santa 
Clara   county. 

Mr.  Delmas  remained  at  the  bar  in  San 
Jose  for  fifteen  or  sixteen  years,  and,  in  that 
period,  acquired  a  reputation  for  skill  and  abil- 
ity of  the  first  order.  He  had  also  great 
prosperity  from  the  standpoint  of  finance.  He 
early  held  the  office,  so  important  and  lucra- 
tive in  that  rich  section,  of  district  attorney.  He 
was  a  public  speaker  of  acknowledged  force 
and  grace,  not  only  in  the  courtroom,  but  on 
the  stump  and  platform,  on  other  than  pro- 
fessional occasions.  By  his  knowledge,  tal- 
ents and  address  he  gathered  around  him  more 
friends  and  clients  than  any  other  man  of  his 
age  in  the  State.  Setting  forth  without  money 
resources  he  amassed  a  fortune.  It  did  not 
take  long  to  accomplish  all  this,  and,  when  his 
fame  had  si)read  llirough  and  beyond  the 
State,  he  left  the  field  where  his  most  splen- 
did visions  had  been  realized,  and  established 


himself  in  San  Francisco.  This  was  on  the 
1st  of  February,  1883. 

When  Mr.  Delmas  had  been  in  San  Fran- 
cisco about  si.x  years  we  said  of  him  that  no 
lawyer  in  this  State  possessed  broader  knowl- 
edge or  was  a  greater  master  of  his  profes- 
sion than  he.  As  an  advocate  he  is  the  admi- 
ration of  the  bar  itself.  His  remarkably  clear 
vision,  his  subtle  intellect,  his  piercing  judg- 
ment, his  power  of  statement,  have  been 
applauded  by  the  veterans  of  the  profession. 
Before  a  jury  he  is  argumentative  or  pathetic, 
as  the  occasion  demands.  Unlike  some  other 
advocates  of  brilliant  parts,  he  keeps  in  mind 
the  fact  that  "the  jury  are  sworn  to  make  a 
true  deliverance,  and  that  to  address  their  pas- 
sions is  equivalent  to  asking  them  to  violate 
their  oaths."  Mr.  Delmas  is  very  painstaking 
in  the  preparation  of  causes  and  very  skillful 
in  tlicir  management.  He  has  great  capacity 
for  applying  himself  to  his  subject.  In  the 
matter  of  evidence  his  method  is  noticeable. 
His  system  is  to  make  himself,  before  the  case 
is  answered  "ready,"  accurately,  mathemati- 
cally if  possible,  master  of  all  the  facts  of  the 
controversy,  and,  especially,  of  those  which 
are  favorable  to  his  adversary.  Upon  the  trial 
he  takes  full  notes  of  everything  that  is  said 
or  done.  It  is  an  article  of  faith  with  him 
to  state  evidence  to  the  jury  with  absolute 
accuracy ;  and  he  almost  invariably  prefaces 
his  argument  with  a  courteous  invitation  to  his 
adversary  not  to  hesitate  to  interrupt  and 
correct  him  in  case  he  should  inadvertently 
fall  into  an  error. 

It  would  be  impossible  to  enumerate  the 
cases  in  which  Mr.  Delmas  has  taken  part. 
His  practice  has  been  confined  to  no  specialty, 
but  has  extended  to  all  branches  of  litigation. 
He  has  figured  in  almost  every  important  case 
which  has  been  before  the  courts  during  the 
last  twenty  pears.  The  most  celebrated  of 
these  is,  perhaps,  that  of  Ellen  M.  Colton  vs. 
Lcland  Stanford,  Charles  Crocker  and  C.  P. 
iiuiiiinnidn,  in  which  Mr.  Delmas,  who  had 
for  associates  Ex-Chief  Justice  William  T. 
Wallace,  Ex-Judge  John  A.  Stanly,  Hon. 
(ieorge  R.  B.  Hayes,  and  G.  Frank  Smith, 
was  the  senior  counsel  for  the  plaintiff.  This 
case,  if  regard  be  had  to  the  eminence  of  the 
counsel  engaged,  the  standing  of  tlie  litigants, 
tin-  amount  involved,  the  nature  of  the  issues, 
.ind  tlu'  duration  of  the  trial,  is,  doubtless,  the 
most  im|)orlant  tliat  h;is  been  tried  in  this 
State  in  the  last  quarter  of  a  century.  The 
trial  lasted  eigiiteen  months — from  November, 


626 


History  of  the  Bench  and  Bar  of  California. 


1883,  to  May,  1885.  The  arguments  alone  con- 
sumed nearly  five  months.  Mr.  Delmas  closed 
the  case,  answering  Hall  McAllister  and  J.  P. 
Hoge,  who  had  immediately  preceded  him.  We 
give  here  some  extracts  from  his  argument,  as 
a  specimen  of  his  style  of  forensic  address.  He 
began  by  saying: 

"It  is  with  no  little  diffidence  and  cniljarrass- 
ment  that  I  rise  to  address  a  court  which  has 
already  listened  to  a  four  months'  discussion  of 
this  cause.  The  learned  and  exhaustive  argu- 
ments which  have  been  made,  presenting  not 
only  in  their  broad  and  general  outlines,  but 
also  in  their  minutest  details,  every  phase  and 
theory  of  this  controversy,  enforce  the  con- 
viction that  little  now  remains  to  say.  Even 
were  it  not  so,  the  extraordinary  length  of 
time  already  consumed  in  the  hearing  would 
warn  me  to  abstain  from  a  much  longer  tres- 
pass upon  the  attention  of  the  court.  It  is. 
therefore,  I  repeat  it,  not  without  hesitation 
that  I  invoke,  for  a  while  longer,  the  indul- 
gence of  that  patience  and  courtesy  which 
have  presided  over  and  lightened  our  labors 
in  this  court,  and  which  will  ever  remain  treas- 
ured up  and  cherished  among  the  most  pleas- 
ing and  grateful  memories  of  this  protracted 
contest. 

"The  magnitude  of  the  issues  involved  would 
not  permit,  however,  their  final  submission 
without  a  closing  argument  on  behalf  of  the 
plaintiff.  In  that  argument,  which,  by  favor 
of  my  associates,  has  been  entrusted  to  me,  I 
shall  endeavor  to  be  as  brief  as  the  nature  of 
the  question  will  permit.  I  shall  not  attempt 
to  review  or  to  answer  in  detail  what  has  been 
so  well  and  ably  said  by  our  learned  adversa- 
ries ;  much  less  shall  I  undertake  to  examine 
and  comment  upon  the  hundreds  of  adjudi- 
cated cases  and  precedents  which  they  have 
cited  in  support  of  their  theories  of  the  law. 
Whilst  such  a  course  might  claim  the  merit  of 
fullness,  it  would,  it  seems  to  me.  inevitably 
lead  to  much  diffusion,  and  detract  from  the 
order  and  coherence  which.  I  conceive,  should 
be  aimed  at.  at  least,  in  every  logical  discus- 
sion. T  shall  content  myself  with  a  statement, 
in  my  own  way.  of  those  propositions  of  law 
and  fact  which  appear  to  me  to  be  fundainen- 
tal.  and  upon  which  I  have  from  the  beginning 
thought  this  controversy  must  ultimately  rest 
— propositions,  in  the  soundness  of  which  my 
confidence  has  in  no  degree  been  shaken  by 
anything  which  has  fallen  from  the  lips  of  the 
learned  counsel  on  the  other  side." 

After  an   elaborate  review  of  the   facts  and 


the  law.  extending  through  a  week.  Mr.  Del- 
mas ended  as  follows : 

"If  these  facts  shall  be  found  proven,  the 
plaintiff  may,  I  trust  pray  for  the  judgment 
of  the  court,  without  calling  to  her  assistance 
any  technical  rule  of  law,  born  of  casuistical 
refinement,  or  strained  presumption,  whose  lost 
origin  and  uncertain  cause  is  looked  for  in 
vain  through  the  mists  of  the  past.  She  may 
invoke  that  judgment,  by  virtue  of  those  eter- 
nal and  immutable  principles,  which  time  can- 
not obscure  nor  subtlety  attenuate ;  principles 
which  existed  as  well  when  the  Jewish  Law- 
giver brought  down  the  tables  of  the  law  to 
the  wandering  tribes  of  Israek  as  when  Ro- 
man praetors  formulated  their  edicts  in  the 
imperial  dominions  of  Augustus  and  Justinian, 
or  the  great  Chancellors  of  England,  the 
Hardwicks.  the  Thurlows,  the  Eldons,  laid 
broad  and  deep  the  foundations  of  the  equity 
jurisprudence  of  Britain;  principles  which  are 
part  of  man's  being,  and  inseparable  from  his 
nature ;  principles  which  the  finger  of  God 
himself  has  inscribed  in  the  breast  of  every 
virtuous  man,  to  enable  him.  in  all  ages,  in 
all  climes,  and  in  all  conditions,  to  distinguish 
right  from  wrong,  to  seek  truth  and  to  shun 
falsehood,  to  protect  the  weak  from  the  inso- 
lence of  the  strong,  to  love  justice  and  abhor 
injustice.  Upon  these  principles.  Sir,  the  plain- 
tiff here  demands  judgment  in  her  favor;  and, 
in  the  full  confidence  that  the  decision  of  the 
court,  to  whichever  side  it  incline,  will  be 
guided  and  directed  by  these  immutable  rules 
of  universal  law,  the  case  of  Ellen  M.  Colton 
is  now  finally  submitted  to  your  Honor." 

Since  he  was  elected  district  attorney  of 
Santa  Clara  county,  in  1867,  Mr.  Delmas  has 
never  been  a  candidate  for  anj^  office,  having 
devoted  himself  entirely  to  the  practice  of  his 
profession.  He  was.  however,  appointed  a  re- 
gent of  the  University  of  California  by  Gov- 
ernor Stoneman,  in  1884,  and  served  until 
1892.  While  a  regent  he  was  President  of  the 
day  on  the  occasion  of  the  inauguration  of 
Hon.  Horace  Davis  as  President  of  the  uni- 
versity, March  23.  1888.  and  delivered  the  ad- 
dress of  welcome. 

In  1869  Mr.  Delmas  married  a  daughter 
of  Colonel  Joseph  P.  Hoge  of  San  Fran- 
cisco. There  are  four  children  of  this  union, 
one  of  whom  is  the  wife  of  William  S.  Barnes, 
ex-district  attornej'  of  San  Francisco. 

Mr.  Delmas  has  alwaj's  been  a  Democrat, 
and  is  sometimes  seen  in  gatherings  of  his 
party.     In  the  Democratic  State  convention,  at 


John  Gather 


History  of  the  Bench  and  Bar  of  California. 


629 


Stockton,  in  1884,  as  chairman  of  the  commit- 
tee on  platform  and  resolutions,  he  led  the  op- 
position which  frustrated  by  an  overwhelming 
majority  the  Presidential  aspirations  of  Judge 
Stephen  J.  Field.  He  maintained,  in  a  power- 
ful address,  that  it  was  against  sound  policy 
and  the  spirit  of  our  institutions  to  permit  the 
discharge  of  the  duties  and  functions  of  a 
member  of  the  Supreme  Court  of  the  United 
States  to  be  disturbed  by  political  intrigues. 

Mr.  Delmas'  home  has  always  remained  in 
the  county  of  Santa  Clara,  where  he  owns  a 
splendid  estate  of  five  hundred  acres,  though 
as  a  city  residence  he  bought  in  San  Fran- 
cisco in  1890  the  family  mansion  of  William 
T.  Coleman,  at  the  southwest  corner  of  Tay- 
lor and  Washington  streets,  paying  $40,000  for 
the  home  of  the  departed  leader  of  the  great 
Vigilance   Committee   of   1856. 


JOHN    GARBER. 

The  signal  distinction  of  holding  the  first 
place  at  the  great  bar  of  San  Francisco  be- 
longs to  Jolm  Garber  by  the  general  verdict  of 
the  profession  in  that  city  and  throughout  the 
State.  This  bar  leader  and  jurist  first  came 
to  San  Francisco  from  his  native  state,  Vir- 
ginia, in  1857,  at  the  request  of  his  uncle.  Jos- 
eph G.  Baldwin,  who,  a  year  later,  became  a 
Justice  of  the  Supreme  Court  of  California. 
He  was  in  Judge  Baldwin's  office  in  the  build- 
ing at  the  northeast  corner  of  Montgomery 
and  California  streets,  for  s>x  months.  He 
then  went  to  Santa  Cruz,  and  practiced  there 
for  a  year  and  a  half.  He  tried  his  first  case 
there  before  Hon.  S.  B.  McKee,  District  Judge. 
He  was  at  the  San  Francisco  bar,  1867-1870,  in 
association  with  D.  P.  Barstow  ( Bar.stow  & 
Garber),  with  offices  in  the  Montgomery  block, 
and  residing  in  Oakland.  He  then  had  a  short 
career  in  the  State  of  Nevada,  which  was 
crowned  by  a  period  of  service  on  the  Su- 
preme bench.  He  was  elected  to  that  high 
place  as  a  Democrat,  in  November,  1870.  He 
took  office  in  January,  1871,  and  served  until 
November  7,  1872,  when  he  resigned.  His  as- 
sociates on  the  bench  were  two  men  of  dis- 
tinguished legal  attainments,  B.  C.  Whitman 
and  J.  F.  Lewis,  both  of  whom  have  been  dead 
many  years.  Returning  to  this  State,  Judge 
Garber  resumed  law  practice  at  San  Francisco 
in  partnership  with  Colonel  Harry  1.  Thorn- 
ton (Garber  &  Thornton),  which  lasted  from 
1874  to  1880.  Mr.  Thos.  B.  Bishop  then  cnlcrcd 
the  firm,  which  continued  as  Garber,  Thornton 
&   Bishop,  until    1SS7,   when  Colonel   Thornton 


withdrew,  it  was  during  this  period  that  ex- 
Chief  Justice  John  Carrey  remarked  to  us 
that  this  was  the  strongest  law  firm  in  the 
State.  The  firm  continued  as  Garber  &.  Bishop 
until  1890.  It  then  became  Garber,  Boali  & 
Bishop,  and  so  remained  to  1895,  although  Mr. 
Chas.  S.  Wheeler  was  a  partner  from  1893. 
in  1895  the  firm  was  dissolved  "by  mutual 
consent."  Judge  Garber  united  with  his  cousin, 
ex- Superior  Judge  E.  R.  Garber,  and  estab- 
lished the  firm  of  Garber  &.  Garber,  Judge 
John  H.  Boalt  opened  an  office  by  himself  and 
soon  retired,  while  Messrs.  Bishop  &  Wheeler 
continued  practice  under  that  style,  Messrs. 
Ludwig  M.  Hoefler,  Guy  C.  Earl  and  William 
Rix  being  associated  with  them.  E.  R.  Gar- 
ber died  in  1897.  Since  early  in  1898,  Judge 
Garber's  associates  have  been  Hon.  Harry  T. 
Crcswell  and  Joseph  B.  Garber.  (Garber.  Cres- 
weli    &   Garber). 

in  the  summer  of  1899,  tlie  firm  publishing 
this  History  sought  to  obtain  the  judgment 
of  the  profession  throughout  the  State  as  to 
who  were  the  twelve  ablest  members  of  the 
San  Francisco  bar  then  living ;  and  to  this  end 
sent  out  printed  slips  to  all  the  attorneys  of  the 
State,  requesting  that  twelve  names  be  writ- 
ten hereon,  in  the  order  of  merit  from  the 
point  of  view  of  the  subscribing  voter.  The 
"returns"  were  unexpectedly  light,  but  per- 
haps heavy  enough  to  serve  as  an  index  of  the 
general  estimation.  The  country  vote  slightly 
exceeded  that  of  San  Francisco.  The  names 
leading  for  the  first  place  were,  in  the  order 
of  preference,  John  Garber,  Garret  W.  Mc- 
Enerney,  D.  M.  Delmas,  E.  S.  Pilisbury.  Thos. 
I.  Bcrgin  and  Thos.  B.  Bishop.  The  last  two 
were  tied.  Mr.  Pilisbury  was  fourth  in  the 
line.  Mr.  Delmas  a  little  above  him,  and  Mr. 
McEnerney  a  little  above  Mr.  Delmas.  Judge 
Garber's  vote  exceeded  the  combined  strength 
of  all  tiie  other  gentlemen  named,  and  was 
nearly  one-half  of  the  total  returned.  His 
San  Francisco,  or  we  may  call  it  "city  vote," 
if  Los  Angeles  does  not  object,  was  much 
larger  than  his  country  vote.  Mr.  Delmas' 
vote  was  three-fifths  from  the  city.  Mr.  Mc- 
Eiu-rncy's  vote  was  equally  divided  between 
city  and  country. 

riie  (jualities  of  mind  displayed  by  Judge 
(barber  in  forensic  discussion  are  pre-eminently 
those  of  strength  and  clearness.  He  seeks  to 
convince  Iiy  his  learning  and  logic — not  to  daz- 
zle by  rhetorical  pyrotechnics.  His  legal  learn- 
ing is  extensive  and  accurate.  He  has  read 
.111(1   mastered  overv  decisiiMi   which  can  tiirow 


630 


History  of  the  Bench  and  Bar  of  California. 


any  ligln  uiH)n  ihe  subject  in  hand,  and  his 
powers  of  analysis  are  such  that  an  adjudica- 
tion which  upon  the  surface  may  seem  to  be 
antagonistic  to  his  position,  will  be  shown  by 
iiim  to  be  entirely  consistent  therewith.  In 
other  words,  his  knowledge  of  legal  princi- 
ples obtained  through  profound  study  of  the 
reasons  upon  wliich  judges  have  based  their 
decisions,  coupled  with  his  capacity  for  per- 
spicuous statement  and  skilful  handling  of 
analogies  and  illustrations,  has  placed  him 
among  the  leading  lawyers  of  the  United 
States.  Besides  the  iniellecmal  qualities 
which  we  have  mentioned,  he  brings  to  the 
support  of  his  cause,  those  powerful  auxiliaries, 
honesty  and  sincerity.  The  judge  who  listens 
to  him  places  entire  confidence,  not  merely  in 
his  learning  and  capacity,  but  in  his  desire 
to  state  fully  and  fairly  the  law  and  facts  of 
the  case — meeting  always  the  requirements  of 
our  code,  which  demands  of  the  lawyer  that 
he  shall  "employ,  for  the  purpose  of  maintain- 
ing the  causes  confided  to  him.  such  means 
only  as  are  consistent  with  trulli.  and  never 
seek  to  mislead  the  judge  or  any  judicial  offi- 
cer by  any  artifice  or  false  statement  of  fact 
or  law."      (C.  C.  P.  282.) 

Hon.  James  D.  Thornton,  ex-Justice  of  the 
Supreme  Court,  has  kindly  sent  us  the  follow- 
ing from  his  pen  relative  to  Judge  Garber  : 

"John  Garber  was  born  at  Staunton,  in 
Augusta  county,  Virginia,  and  is  about  sixty- 
seven  years  of  age.  He  commenced  active 
business  life  as  a  civil  engineer,  studied  en- 
gineering at  the  University  of  Virginia,  and 
was  then  employed  under  Charles  Ellet,  an 
able  man  and  distinguished  in  his  profession  as 
engineer.  Mr.  Garber's  first  employment  in 
that  capacity  was  on  the  Virginia  Central 
Railroad,  which  ran  from  Richmond  to  Staun- 
ton, passing  through  Rockfish  Gap  in  the  Blue 
Ridge.  At  the  university  he  graduated  in 
mathematics,  Latin,  chemistry,  natural  phil- 
osophy and  modern  languages. 

After  pursuing  his  calling  as  engineer  for 
about  two  years,  he  commenced  the  study  of 
law,  was  admitted  to  practice  in  Virginia,  and 
soon   afterwards   came   to   California. 

He  lived  and  practiced  law  in  Nevada  City, 
California,  and  went  from  that  place  to  the 
State  of  Nevada,  and  followed  his  profession 
in  Austin  and  Pioche.  He  made  his  mark 
as  a  lawyer  in  that  state.  He  became  a  Justice 
of  the  Supreme  Court  of  Nevada,  and  was  an 
able  and  useful  judge.  He  remained  on  the 
bench  about  two  years,  then  resigned  and  came 
to  San  Francisco,  where  he  took  a  high  stand 


in  his  profession  and  argued  the  most  import- 
ant cases.  He  was  successful  in  every  way, 
in  winning  cases  and  in  accumulating  money 
and  property. 

Judge  Garber  is  able  in  all  kinds  of  cases. 
1  do  not  know  about  admiralty  law,  but  am 
confident  that  if  he  turned  his  attention  to  it 
he  would  excel  in  it.  He  is  profoundly 
grounded  in  legal  principles,  learns  all  kinds 
of  law  with  great  facility  and  rapidity,  and 
I  have  no  doubt  that  he  would  take  a  high 
rank  in  the  courts  of  Westminster  if  he  ap- 
peared  in   them. 

As  a  speaker  his  is  the  eloquence  of  sound 
argument.  His  diction  is  vigorous,  apt  and 
appropriate. 

His  manner  in  court  is  dignified,  decorous 
and  easy.  He  seems  perfectly  at  home,  and  is 
always  respectful  and  courteous  to  court  and 
counsel. 

He  excels  in  cross-e.xamination  of  witnesses. 
Colonel  Harry  1.  Thornton  told  me  that  Jtidge 
Garber  was  the  best  cross-examiner  he  ever 
saw.  He  is  always  prepared  in  Ins  cases.  The 
rules  and  principles  applicable  to  them  seem 
to  be  as  familiar  as  the  way  to  his  office  or 
the  courts.  Without  disparagement  to  other 
able  members  of  the  San  Francisco  bar.  I  class 
Judge  Garber  among  its  leaders,  if  not  as  its 
leader.  That  bar  may  well  be  styled  able  and 
learned.  1  say  this,  after  a  knowledge  of  its 
members  for  a  space  of  more  than  forty-five 
years. 

Judge  Garber  seems  to  have  explored  the 
foimtains  of  the  law,  as  well  as  its  streams 
and  rivulets.  Such  is  his  knowledge  of  the 
law.  that  to  solve  the  intricacies  of  a  case  is 
to  him  no  difficult  matter. 

He  has  been  and  is  now  a  great  general 
reader  of  literature,  history,  poetry  and  the 
leading  works  of  fiction.  His  conversation  is 
bright,  interesting  and  instructive;  few  men 
are   more   entertaining  in   their  talk. 

lie  is  a  man  of  high  character  and  a  worthy 
citizen.  He  is  a  Democrat  in  politics,  of  the 
gold  wing  of  the  party,  and  is  always  ready  to 
give  good  reasons  for  his  i)olitical  views. 

He  is  a  great  mining  and  corporation  lawyer. 
As  a  mining  lawyer  he  has  no  superior. 

In  all  the  departments  of  law  he  has  studied 
he  stands  in  the  first  rank  for  attainments. 

Judge  Garber  married  in  early  life  a  daugh- 
ter of  Judge  John  White,  of  Alabama,  who 
was  a  prominent  citizen  and  distinguished  law- 
yer. He  has  several  children.  His  eldest  son, 
Joseph  Baldwin,  is  his  partner,  as  is  also 
Harry  T.  Creswell,  Esq.  The  firm  is  a  strong 
and    successful    one. 


i 

[ 


Wm.   F.   Herrir, 


History  of  the  Bench  and  Bar  of  California. 


633 


WILLIAM    F.    HERRIN. 

Modern  conditions  have  so  recreated  the  pro- 
fession of  the  law  as.  in  eiYecl,  to  give  it  a  new 
character.  The  development  of  transportation, 
the  growth  of  industry  and  of  commerce,  the 
rise  of  that  great  agency  of  progress,  the  cor- 
poration— these  things  which  have  so  stimu- 
lated the  energies  of  the  world,  multiplied  its 
wealth,  and  specialized  its  life,  have  wrought 
a  truly  amazing  evolution  in  the  trade  of  the 
lawyer.  The  legal  practitioner  is  no  longer  a 
mere  bookish  prig  or  a  master  in  the  chicane 
of  the  criminal  court,  or  a  bustling  head  clerk. 
He  is  no  longer  either  Quirk,  Gammon,  or 
Snap  of  the  city  bar,  nor  the  loutish  "squire" 
of  the  rural  districts.  On  the  other  hand,  the 
modern  lawyer  is  essentially  a  man  of  affairs, 
in  professional  association  with  the  vital 
things  of  the  effective  world.  His  chief  func- 
tion is  that  of  counsellor  and  guide  to  the  so- 
called  practical  men  who  are  doing  the  world's 
work  in  its  organized  departments.  He  has  all 
the  professional  learning  and  all  the  profes- 
sional .spirit  of  his  ancestral  type,  the  old-time 
lawyer,  and  he  has  added  to  these  qualifica- 
tions knowledge  of  the  practical  things,  a  de- 
veloped business  judgment,  and  the  balance  of 
the  man  of  the  world. 

We  are  speaking  of  the  modern  lawyer  in 
his  best  development,  and  we  have  in  mind 
Mr.  William  F.  Herrin,  the  general  counsel 
of  the  Southern  Pacific  Railroad  Company. 
It  is  given  to  some  men  of  exceptional  fortune 
to  sum  up-  in  themselves  and  to  personify  in 
their  own  characters  the  spirit  of  the  times 
they  live  in.  and  of  the  things  with  which 
they  have  to  do;  and  Mr.  Herrin  is  nne  nf 
these  rare  men.  The  tein])er  df  the  nnxUrii 
world  is  his  temper ;  the  force  of  large  con- 
ditions finds  in  him  a  corresponding  force.  As 
a  lawyer,  strictly  speaking,  he  has  the  weight 
which  comes  from  a  profound  study  of  legal 
principles,  combined  with  a  j)rofoimd  confi- 
dence in  the  working  out  of  results  in  conform- 
ity to  principles  .\s  an  administrator  he  has 
the  promptness  and  the  resolution  which  conn' 
from  absolute  reliance  ui)on  his  own  judg- 
ment, from  what  may  i)e  lernud  the  h.ihil  of 
si:ccess,  and  from  the  teui])eranunl;il  e.ilni 
which  no  transient  motive  ever  for  nuv  mo- 
ment disturbs.  "It  is  no  accideni  thai  I  lirrin 
is  where  he  is,"  said  a  very  proniinciit  r.iilroad 
official  recently.  "Our  peoi)U-.  in  scrlsing  a 
chief  counsel  some  years  hack',  ni.ule  ;i  cold 
blooded  inquisition  for  the  best  conibin.ilion 
of    legal    knowledge,    business    judgment    ;nul 


administrative  force  in  California.  A  half- 
score  of  names  were  suggested,  but  only  one 
was  seriously  considered— that  of  William  F. 
Herrin."  "Have  you  come  all  the  way  to  New 
^■ork  to  talk  to  me  about  this  matter?"  asked 
the  late  Mr.  Huntington  of  a  visitor  a  few 
days  before  his  death.  "Go  back  home  and 
talk  it  over  with  Herrin.  He's  the  levelest- 
headed  man  in  California,  and  whatever  he  ad- 
vises  that    [    will    do." 

It  is  natural  to  feel  an  interest  in  the  personal 
and  professional  history  of  a  man  so  reniark- 
al)le  for  his  success  and  for  the  confidence 
which  he  inspires.  Mr.  Herrin  came  from 
the  Southern  and  Western  stock  from  which 
also  came  Jackson,  Lincoln,  Grant  and  Mc- 
Kniley— from  the  old  American  stock,  strong 
ui  its  inheritance  of  English  character  and 
tradition,  with  a  dash  of  Scotch-Irish  to 
quicken  the  fancy  and  put  iron  in  the  blood. 
He  was  born  in  Jackson  county,  Oregon,  Aug- 
ust 7.  1854.  His  early  youth  was  under  the 
double  discipline  of  a  good  home  life  and  of 
wholes(jme  labors.  At  sixteen  he  entered  the 
Oregon  State  Agricultural  College  at  Corval- 
lis.  maintaining  himself  by  workmg  in  the 
harvest  field  during  vacation  time.  From 
Corvallis  he  went  to  the  law  school  of  Cumber- 
land University,  in  Tennessee,  from  which  he 
graduated  with  honors.  Thus  early — for  he 
was  n(jt  yet  twenty-one — the  qualities  of  per- 
sonal judgment  and  of  personal  courage  as- 
serted themselves,  for  in  selecting  his  place 
to  make  a  start  he  chose  the  metropolis  of  the 
Pacific  Coast.  To  San  Francisco  he  came,  with 
fewer  dollars  than  there  are  days  in  the  month. 
an  absolute  stranger.  It  was  a  struggle,  of 
course;  but  it  was  a  struggle  in  which  there 
was  never  any  doubt  about  the  outcome.  A 
yotuh  disciplined  to  labor,  used  to  self-sup- 
port, without  vices,  willing  to  live  in  the 
hinnlilest  way.  eager  to  work,  and  willing  to 
^er\c,  grasping  .it  the  smallest  opportunities 
and  making  the  most  ul  each — first  a  minor 
clerk  in  the  office  of  Hon.  Clarence  Greathm'jr ; 
soon  .Mr.  (ireathouse's  confidential  assistant 
next  a  junior  partner  in  the  firm  of  Stewart 
\-  \;inclief  (Senator  William  M.  Stewart  and 
tlu-  late  Judge  Peter  Vanclief)  ;  next  a  potent 
ti.uiirc  in  large  litigation;  next  chief  counsel 
t' ir  ihr  ll.ink  of  California  and  for  other  large 
enrpor.itions ;  at  thirty-nine  chosen  by  Collis 
I'.  Huntington  as  the  general  counsel  of  the 
Sonihern  Pacific  Company,  and  thus  the  fore- 
niosi  ni.ni  in  the  professional  life  of  the  Pa- 
cific Coast.     It   is  a  record  of  such  distinction 


634 


History  of  the  Bench  mid  Bar  of  California. 


as  has  not  been  surpassed  in  the  professional 
life  of  the  country. 

There  is  no  simpler,  less  affected,  less 
"puffed-up"  man  than  William  F.  Herrin.  He 
takes  small  time  to  consider  matters  personal 
to  himself.  He  is  today  just  what  he  was  as 
a  farmer's  boy  and  as  a  student — plus  the  wis- 
dom of  an  eventful  life,  the  poise  of  experience, 
and  the  authority  of  high  achievement.  He  is 
as  painstaking  today  as  in  his  first  case,  and 
as  careful  of  small  things  as  of  great.  It  is 
quite  incidental  that  Mr.  Herrin  has  come  to 
be  a  man  of  very  considerable  wealth  ;  for  it  is 
impossible  that  one  of  such  large  earning 
power,  combined  with  business  discretion, 
should  not  thrive.  But  it  is  as  a  lawyer  rather 
than  as  a  capitalist  that  he  is  known  and  con- 
sidered. He  lives  in  dignified  elegance — a 
man  of  family  (Mrs.  Herrin  is  a  daughtei-  of 
the  late  Judge  Vanclief),  a  man  of  supreme 
success,  and  at  forty-six  still  a  growing  man. 


One  who  is  familiar  with  Herrin's  career  as 
a  practitioner  and  administrator  has  reviewed 
his  methods  of  work.  Says  this  writer,  "He 
neither  shirks  the  smallest  duty  nor  does  he 
shrink  from  the  most  stupendous  task  .  .  . 
The  fact  that  he  may  distribute  the  work  of 
his  department  never  seems  to  suggest  the 
idea  of  divorcing  himself  from  a  broad  under- 
taking, and  where  the  work  has  been  portioned 
out  he  more  than  likely  has  anticipated  every 
point  his  subordinate  would  be  likely  to  en- 
counter. .  .  .  He  would  have  made  a  great 
banker  or  railroad  president  or  surgeon.  .  . 
.There  is  a  combination  in  his  character  most 
contradictory  and  unusual  for  he  is  a  man  of 
broad  policies,  and  yet  a  man  of  details,  and 
these  two  traits  seldom  come  together  in  one 
individual.  Mr.  Herrin  is  not  given  to  super- 
fluous words,  nor  to  superfluous  men." 

Quoting  from  declarations  made  with  refer- 
ence to  Mr.  Herrin  by  others  the  same  writer 
says,  "A  prominent  member  of  the  bench  once 
said:  'Herrin  never  trusts  to  his  luck  or  to 
his  genius  to  win  his  cases.  He  comes  into 
court  tlioroughly  prepared  to  try  his  case.  In 
argument  I  have  heard  him  anticipate  his  ad- 
versary by  stating  the  strongest  points  against 
his  own  position,  and  then  heard  him  tear 
that  argument  to  shreds.'  When  he  enters  the 
court-room  he  is  as  familiar  with  his  adver- 
sary's side  of  the  case  as  he  is  with  his  own." 
Another  striking  testimony  to  Mr.  Herrin's 
strength  before  a  court  comes  from  a  member 


of  the  Inicr-slate  Commerce  Commission.  His 
recent  appearance  before  that  body  brought 
from  one  of  its  members  this  warm  encomium: 
"We  have  had  before  us  probably  every  promi- 
nent cornoration  attorney  in  the  United  States, 
and  my  associates  agree  with  me  that  your  Mr. 
Herrin  is  the  ablest  of  them  all.  He  knows 
his  case  thoroughly;  he  does  not  irritate  the 
court  nor  badger  witnesses ;  he  cheerfully  con- 
cedes points  that  other  men  would  be  apt  to 
(piarrcl  over,  without  purpose,  but  he  picks  the 
weak  points  of  the  other  side,  and  exposes 
them  in  a  way  that  is  as  instructive  to  the 
court  as  it  is  annoying  to  his  opponent. 

"In  his  connection  with  the  Southern  Pa- 
cific Company  and  the  multitude  of  allied  cor- 
porations he  has  brought  a  loyal  and  untiring 
spirit  coupled  with  a  grim  determination  to  get 
at  the  root  of  things.  When  he  entered  the  de- 
partment as  its  chief,  he  began  by  carefully 
mastering  every  detail  of  past  operations ;  and 
they  were  many  and  most  perplexing.  Within 
six  months  he  had  every  essential  detail  well 
in  hand ;  then  he  commenced  his  system  of 
pruning,  and  with  the  deliberation  of  a  sur- 
geon, he  began  to  eradicate  things  he  did  not 
approve  and  coolly  cut  off  what  appeared  to 
be  the  most  vital  portions  of  the  department. 
He  did  not  stop  until  the  task  was  finished, 
although  the  doing  of  it  must  have  been  any- 
thing but  pleasant.  He  then  began  a  system- 
atic rebuilding  along  lines  in  harmony  with 
his  own  views  until  now  the  organization  is 
well  nigh  perfect.  .  .  .  There  is  no  beat- 
ing of  drums  accompanying  railroad  litiga- 
tion, no  long  list  of  regularly  retained  attor- 
neys at  extravagant  salaries,  but  every  lawyer 
of  ability  in  the  State  knows  that  he  may  be 
employed  at  any  time  in  the  company's  liti- 
gation. Ihe  claims  department  and  the  tax 
department  have  been  added  to  that  of  the 
law,  and  while  giving  personal  attention  to  all 
of  these,  there  is  probably  not  a  branch  of  the 
railroading,  from  construction  to  operating, 
that  has  not  received  his  careful  attention  and 
investigation.  He  understands  all  the  whys 
and  wherefores  of  freight  rates  and  the  rules 
that  govern  their  making." 

This  same  writer  sums  up  Mr.  Herrin's 
character  in  the  following  words :  "He  is  a 
man  of  indomitable  will,  tireless  energy  and 
rare  intuitive  powers.  He  is  broad  of  vision, 
yet  scrupulously  careful  as  to  details.  His 
capacity  for  work  is  illimitable.  He  has  a 
head  for  organizing,  and  setting  out  to  per- 
form a  task  he  may  be  trusted  to  keep  at  it 
uiUil  the  work  is  done  and  well  done." 


^.  H.  Lloyd 


History  of  the  Bench  and  Bar  of  California. 


337 


R.  H.   LLOYD. 

In  this  gentleman  the  California  bar  pos- 
sesses the  most  eminent  Mason  in  the  United 
States — the  most  exalted  Knight  Templar.  He 
was  elected  Grand  Master  of  the  Grand  En- 
campment at  the  triennial  conclave  held  at 
Pittsburg.  Pa.,  in  October,  1898.  Accordingly, 
the  office  of  the  Grand  Master  is  in  San 
Francisco.  The  next  conclave,  when  his  suc- 
cessor will  be  chosen,  will  be  held  at  Louis- 
ville.  Ky.,   in   1901. 

Mr.  Lloyd  impresses  the  stranger  as  a  typi- 
cal American.  If  a  person  not  informed  on 
the  subject  were  told  that  he  was  born  in  any 
part  of  tne  LTnited  States,  north,  south,  east 
or  west,  he  would  readily  accept  it.  If  he 
heard  that  Mr.  Lloyd  was  an  Englishman,  he 
would  doubt  it.  If  assured  he  was  an  Irish- 
man, he  would  say,  "That  can  hardly  be."  We 
have  asked  Irishmen  to  guess  at  Mr.  Lloyd's 
nationality.      No   one   ever   replied,   "Ireland." 

Mr.  Lloyd  was,  however,  born  in  Ireland, 
of  Irish  parents.  He  came  to  California  in 
boyhood — away  back  in  the  early  fifties.  He 
began  the  study  of  law  in  the  office  of  Colonel 
James,  a  noted  criminal  lawyer ;  then  he  was 
in  the  office  of  John  S.  Hagar,  who  had  been 
Judge  of  the  Fourth  District  Court,  and  was 
afterwards  LTnited  States  senator.  He  worked 
industriously  for  both  James  and  Hagar,  go- 
ing errands  and  copying  law  papers.  He  was 
an  ambitious,  hearty  lad,  and  happy  when  oc- 
cupied with  honest  work.  ■ 

A  few  days  after  he  had  entered  Judge  Ha- 
gar's  office,  he  had  occasion  to  tell  the  Judge 
tliat  a  new  coal  scuttle  was  needed.  "Gn 
to  Snooks,"  said  Hager.  Young  Lloyd  looked 
up  at  the  Judge  as  if  hurt.  He  thought  his 
employer  was  making  sport  of  him.  Now. 
Snooks  was  a  plumber  close  by,  and  his  sons 
are  still  in  the  business  in  1900,  and  when 
Judge  Hager,  seeing  Lloyd's  dejection,  told 
him  where  the  place  was.  it  was  all  right  : 
he  went  and  got  the  scuttle.  (He  told  us  of 
this   in    1868.) 

Mr.  Lloyd  was  educated  in  Snn  Francisco. 
In  1857-58  he  worked  and  studied  in  the  law 
office  of  McDougall  &  Sharp,  at  625  Merchant 
street.  He  was  admitted  to  the  bar  of  the  Su- 
preme Court  in  1859.  The  next  year  he  held  forth 
as  an  attorney-at-law,  having  an  office  with 
McDougall  &  Sharp.  In  1861  llic  funi  of  Mc- 
Dougall, Sharp  &  Lloyd  was  establislicd.  Gen- 
eral McDougall,  on  his  election  as  United 
States  senator,  withdrew  from  the  firm,  in 
1862.  and  Sharp  and  Lloyd  continued  together 


until  the  beginning  of  the  year  1876.  They 
then  separated,  remaining  good  friends,  Mr. 
Siiarp  dying  not  long  afterwards.  In  1876 
Mr.  Lloyd  formed  a  partnership  with  Fran- 
cis G.  Newlands.  In  1880  William  S.  Wood 
joined  these  gentlemen,  and  the  firm  of  Lloyd, 
Newlands  &  Wood  existed  for  some  two  years, 
when  Mr.  Newlands  removed  to  the  State  of 
Nevada  to  enter  upon  a  long  political  career. 
Mr.  Lloyd  and  Mr.  Wood,  under  the  style 
of  Lloyd  &  Wood,  are  still  associated  after 
tlic   lapse   of  eighteen  years. 

Mr.  Lloyd  was  naturalized  at  San  Fran- 
cisco in  1856.  When  the  first  registration  act 
was  passed  ten  years  later,  he  registered  as  a 
voter,  in  June,  1866,  as  being  a  native  of  Ire- 
land, and  then  thirty  years  of  age.  which 
makes  him  in  1900  sixty-four  years  old.  After 
taking  a  good  look  at  him.  whether  one  had 
long  known  him  or  not,  one  would  say  he  was 
about  fifty.  He  is  of  medium  stature  and 
weiglit,  clean  shaven,  a  decided  blonde,  has 
a  fine  large  eye.  and  is  very  alert  in  his  move- 
ments. He  has  never  touched  alcohol  or  to- 
bacco. His  old  partner,  McDougall  Cturn  to 
iiis  sketch)  believed  in  Women,  Wine,  Whis- 
ky and  War.  Mr.  Lloyd  does  not.  When  once 
or  twice,  in  illness  (at  one  time  critical,  a 
few  years  ago)  his  physician  prescribed 
whisky,  Mr.  Lloyd  rebelled,  and  only  yielded 
when  the  physician  threatened  to  have  him  held 
wliile   it   was   administered. 

Mr,  Lloyd  lias  never  married.  He  devotes 
some  of  his  time  to  fraternal  orders,  of  course 
to  Masonry  especially. 

We  well  rememlier  hearing  Mr.  Lloyd  and 
Robert  C.  Rogers  (who  had  been  public  ad- 
ministrator) engaged  in  business  conversation 
in  1872.  Lloyd  remarked  to  Rogers  that  he 
would  givr  ten  thousand  dollars  for  a  certain 
piece  of  property.  When  he  turned  away  we 
said  to  Mr.  Rogers.  "Mr.  Lloyd  has  pros- 
pered." (It  seemed  to  us  so  short  a  period 
since  he  had  begun  practice,  without  resources 
as  we  understood).  "Well,"  said  Rogers.  "I 
would  take  his  chock  for  ton  thousand  dollars." 

.\  few  years  l.iior.  when  iho  Rank  of  Cali- 
fornia suspended  (in  1875),  it  was  very  soon 
ro-incorporato(l  by  .1  syndicate,  of  which  Mr. 
Lloyd  was  .1  nuinlur.  TTo  subscribed  $IOO,- 
000,00.  ;in(l  canu-  afterwards  to  hold  slock 
of   tho   bank   to   the   anionnt   of  $150,000.00. 

Mr.  Lloyd,  indopondcnt  of  his  partner,  has 
Iirobably  tho  finest  private  law  library  west 
of  Chicago.  Ho  told  us  in  his  office  on  the 
21  St   of   May,    1890.   that    his   law   library   had 


638 


History  of  the  Bench  and  Bar  of  California. 


cost  him  $30,000.00;  that  he  had  the  Supreme 
Court  reports  of  all  the  states  and  the  United 
States,  and  all  the  Common  Law  reports;  that 
he  bought  two  or  three  new  books  every  day, 
at  a  daily  expense  of  about  ten  dollars. 

He  is  a  man  of  very  simple  tastes,  dresses 
in  plain  black  and  belongs  to  the  conservative 
type  of  men.  He  is  very  approachable  and 
companionable,  and  no  one  enjoys  more  favor 
among  his  professional  brethren.  We  had  oc- 
casion to  speak  of  Colonel  Joseph  P.  Hoge's 
holding  to  one  office  in  Montgomery  Block  for 
thirty-four  years,  until  he  went  on  the  bench 
late  in  life.  Mr.  Lloyd  has  only  changed  his 
office  twice  since  he  became  a  lawyer  forty 
years  ago ;  but  more  interesting  to  note,  dur- 
ing even  a  longer  period  he  has  not  changed 
his  residence  at  all.  Able  to  buy  or  build  on 
a  grand  scale,  he  clings  to  the  old  home  at 
loio  Folsom  street,  near  Sixth,  where  he  grew 
up  to  manhood  and  where  his  mother  lived 
until  her  life  ended  a  few  years  ago. 


GARRKT  W.  McENERNEY. 

This  man  oi  counsel  and  argument  has,  at 
the  age  of  thirty-five,  placed  himself  among 
the  recognized  masters  of  the  profession  in 
this  his  native  State.  Indeed,  it  was  not  yes- 
terday when  he  pressed  his  way  to  this  high 
authority.  When  he  had  been  at  the  bar  about 
ten  years,  some  five  years  ago,  he  was  a  prin- 
cipal figure  in  the  great  causes  that  occupied 
the  courts,  and  he  then  entered  the  wide 
province  occupied  by  ten  or  twelve  dominant 
minds  of  the  State  unchallenged  for  general 
legal  ability. 

Mr.  McEnerney  was  born  at  Napa,  Califor- 
nia, on  February  17,  1865,  and  was  graduated 
at  St.  Mary's  College,  San  Francisco,  in  June, 
1881.  He  never  attended  a  law  school,  but 
prepared  himself  for  the  bar  by  reading  in 
law  offices  and  at  home.  He  was  admitted  to 
the   bar  of  the   Supreme   Court  on   March    1, 

1886.  He  commenced  the  practice  at  San 
Francisco  in  the  office  of  David  McClurc.     In 

1887.  '88,  '89,  he  continued  business  alone.  In 
the  fall  of  '89  he  formed  a  partnership  with 
Dennis  Spencer,  a  successful  lawyer  who  had 
removed  from  Napa.  After  two  or  three 
years,  this  firm  was  dissolved,  and  Mr.  Mc- 
Enerney went  into  partnership  with  George 
H.  Maxwell.  This  lasted  a  year  or  so,  when 
Mr.  McEnerney  entered  the  prominent  firm 
composed  of  ex-Judge  John  A.  Stanly,  Geo. 
R.  B.  Hayes,  and  Henry  W.  Bradley,  which 
now     became     Stanlv    Haves,     McEnernev    &' 


Bradley.  This  association  also  continued  for 
about  one  year.  Since  1895,  Mr.  McEnerney 
has  been  alone  in  the  jiractice,  with  offices  in 
Nevada  Block,  and  in  the  years  since  passed. 
on  account  of  his  connection  with  celebrated 
cases,  the  public  prints  have  kept  his  name  and 
his  abilit}-  before  the  people. 

A  San  F^rancisco  paper,  the  Bullctiii,  in  Aug- 
ust. 1895,  declaring  that  the  old  question, 
"Shall  the  boy  go  to  college?"  was  being  again 
agitated  by  tlie  Eastern  magazines,  took  the 
opinions  of  well  known  professional  and  busi- 
ness men  on  the  subject,  among  the  former 
being  Mr.  McEnerney  and  Mr.  D.  M.  Delmas. 
We  give  here  the  interview  with  Mr.  McEncr- 
nej'  because  it  reveals  not  only  his  opinion, 
but  something  of  the  man  himself.  (His  first 
name  was  spelled  with  more  than  one  "t." 
which  we  correct.)     It  follows: 

"(jarret  McEnerney  was  unconditionally  in 
favor  of  boys  going  to  college,  and,  as  he  him- 
self is  a  graduate  of  St.  Mary's,  he  speaks  as 
one  who  by  experience  ought  to  know  best. 
He  is  a  very  young  man,  has  become  one  of 
the  best  lawyers  in  the  State,  and  is  put  down 
by  politicians  as  destined  some  day  to  go 
to  the  United  States  senate. 

"Mr.  McEnerne)',  who  is  a  genuinely  modest 
lawyer,  did  not  want  to  talk  for  publication, 
and  it  was  only  by  persistent  questioning  that 
he  could  be  induced  to  express  his  views.  In 
discussing  the  collegiai.°  work,  he  said:  "I 
regard  the  university  traininsr  the  same  for 
the  mind  as  a  course  in  athletics  is  for  the 
prize-fighter.  Ir  is  discipline,  without  which 
a  man,  especially  in  the  profes.Mons.  is  at  sea. 
Men  cannot  be  toe  well  educated,  any  more 
than  an  athlete  can  be  too  well  trained.' 

"I  then  asked  Mr.  McEnerney  how  he  ac- 
counted for  the  vast  number  of  self-made  men 
who  are  now  in  control  of  public  affairs  in 
America,  and  he  rei)lii'(l  : 

"  'Of  course,  many  men  do  succeed,  and 
make  great  reputations  without  the  training 
that  a  college  gives,  l)ut  1  believe  that  each 
would  have  done  better  if  lie  had  been  better 
educated.  If  a  horse  wins  a  race  with  a 
hundred  pounds  on  his  back,  it  is  not  on  ac- 
count of  the  load  that  he  l)cats  his  competitor. 
Init  in  spite  of  it.  Should  a  man  walk  from 
here  to  San  Jose,  carrying  a  heavy  burden,  he 
would  be  better  able  to  reach  there  more 
([uickly  without  the  weight.  My  conviction 
is  firm  that  every  one  is  better  for  college 
training.' 

"I  then  broached  to  Mr.  McEnerney  the 
charge   that    is  advanced  against   colleges,  that 


Garret   W.   McEnerney 


History  of  the  Bench  and  Bar  of  California. 


(J41 


they  create  snobs,  cads  and  prigs, — men  who 
are  so  self-satisfied  that  they  do  not  even 
consider  it  necessary  to  labor.  He  would  not 
deny  it  positively,  but  said :  'If  it  is  true, 
it  is  not  the  fault  of  the  college  course  itself, 
but  of  other  influences.'  " 

Mr.  McEncrney  has  a  vigorous  mind.  He 
sees  quickly,  and  can  state  his  views  promptly, 
concisely  and  convincingly.  Hence,  his  suc- 
cess in  the  trial  of  cases,  where  readiness  is 
required  more  even  than  profound  learning 
or  pleasing  elocution.  In  arguments  before 
the  Supreme  Court,  where  difficult  questions 
of  law  are  to  be  discussed,  after  ample  oppor- 
tunity for  thought  and  research  has  been  af- 
forded to  counsel,  Mr.  McEnerney  is  not  sur- 
passed by  any  lawyer  of  his  years  at  our  bar. 
He  masters  the  law  and  the  facts ;  he  has 
something  to  say  which  is  worth  hearing;  he 
says  it  strongly  and  pointedly,  and  when  he 
has  said  it,  he  stops.  If  the  case  be  lost, 
the  fault  will  lie  with  the  weakness  of  the  case 
itself,  not  in  the  inadequacy  of  the  advocate. 

He  has  won  his  position  at  the  bar  not  by 
trickery,  or  by  "influence,"  but  by  the  faith- 
ful and  honorable  exercise  of  his  talents,  and 
hence  his  brothers  of  the  profession  admire 
and  respect  him,  and  rejoice  in  his  success. 


\ 


WILLIAM   M.   PIERSON. 

William  Montgomery  Pierson's  place  at  the 
San  Francisco  bar  is  among  (he  eight  or  ten 
masters  who  stand  at  the  very  front.  His  en- 
tire professional  career  has  been  cast  in  that 
city.  It  was  begun  before  he  was  of  age,  the 
legislature,  by  special  act  authorizing  his  en- 
trance to  the  bar  of  the  Supreme  Court,  when 
lie  was  twenty  years  old.  His  examination 
and  admission  occurred  in  April,  1862,  and 
now,  after  a  well-sustained  practice  of  thirty- 
eight  years,  his  capacity  was  never  greater, 
nor  his  condition  more  prime.  He  seems  to 
look  backward  and  forward  npnn  a  far-reach- 
ing and  pleasing  prospect. 

Mr.  Pierson  was  horn  in  Cincinnati,  Ohio, 
on  the  3rd  of  February,  1842.  His  parents 
were  Joseph  D.  and  Catherine  (Taylor)  Pier- 
son. 

The  original  representative  of  the  family  in 
America  was  Rev.  Abraham  Pierson  (1608- 
'78),  a  native  of  Yorkshire.  England,  and  a 
graduate  of  Cambridge  University,  who,  com- 
ing to  Boston  in  1630,  preached  for  a  while  ;il 
Southampton,  L.  I.,  and  in  1647  settled  in 
Branford.  Conn.  He  was  active  as  a  mis- 
sionary to  the  Indians,  for  whom  he  prepared 
a   catechism    in    their    lansjuasc.      In    1854    he 


served  as  chaplain  to  the  forces  sent  against 
the  Dutch  in  New  York.  Being  strenuously 
opposed  to  the  union  of  New  Haven  and 
Connecticut  colonies,  he  withdrew  from 
Branford  in  June,  1667,  with  a  large  part  of 
the  population,  and  founded  Newark,  N.  J. 
He  enjoyed  the  warm  personal  friendship  of 
Governor  Winthrop,  and  Cotton  Mather  feel- 
ingly tells  us  that  "wherever  he  came  he 
shone."  His  son,  also  Abraham  Pierson,  was 
the  first  rector  of  Yale  College  (i 701 -'07)  ; 
and  his  descendant.  Rev.  Hamilton  Wilcox 
Pierson,  was  a  prominent  Presbyterian  minis- 
ter in  Kentucky,  and  president  of  Cumberland 
College  (i859-'62).  By  the  maternal  line  Mr. 
Pierson  comes  of  New  York  Knickerbocker 
stock,  and  is  a  direct  descendant  nf  .-Xuneki- 
Jansen,  commonly  known  as  Anneke  Jans, 
wife  of  Everardus  Bogardus.  and  the  original 
owner,  by  grant  from  Governor  Wouter  Van 
Twiller,  of  the  land  now  held  by  the  corpo- 
ration of  Trinity  Parish.  His  childhood  was 
passed  in  New  York  City,  but  in  his  tenth 
year  he  went  with  his  parents  to  California, 
via  Cape  Horn,  landing  in  San  Francisco 
July  4,  1852. 

Mr.  Pierson  studied  law  in  the  offices  of  Na- 
thaniel Bennett,  Annis  Merrill,  and  Henry  H. 
Haight,  and  practiced  in  partnership  with  Mr. 
Haight  until  the  latter  became  Governor  of 
the  State  in  December,  1867.  He  was  a  State 
senator  from  San  Francisco,  1875-1878.  He 
introduced  a  bill  limiting  the  grounds  of  di- 
vorce to  adultery  only,  which  was  not  passed. 
Another  bill  of  his  to  compel  newspaper  pro- 
l)rictors  to  retract  false  and  defamatory  arti- 
cles, passed  the  senate  by  25  to  10,  on  March 
13.  1876.  Donovan.  Edgerton,  Haymond,  Hil- 
horn.  Laine.  Rogers,  and  Shirley  being  among 
those  voting  aye,  and  Bartlett,  Howe  and 
Roach  being  among  the  noes.  This  bill  was 
indefinitely  postponed  in  the  assembly  on  the 
rfconinicndation  of  the  judiciary  committee, 
lolin   R.   MoConni-ll.  chairman. 

'I'lio  most  inii)ortant  interests  with  which 
Mr.  Pierson  has  been  professionally  connected, 
arc  tliose  which  are  now  engaging  him, 
namely,  the  litigations  over  the  great  estate  of 
James  G.  Fair. 

In  1878.  wluMi  tlic  attorneys  of  all  the  San 
Francisco  hanks  united  in  a  written  opinion 
iliat  \W  bank  commissioners  of  the  State 
were  not  vested  with  power  to  examine  such 
lianks  as  came  strictly  in  the  commercial 
class.  Mr.  Pierson  led  them  into  a  discovery 
of  their  error.  See  the  case  of  Wells.  Fargo 
\-   Co.   vs.   E.  J.   Coleman,  et  al.,  53  Cal.  416, 


642 


History  of  the  Bench  and  Bar  of  California. 


in  which  Mr.  Pierson  appeared  for  the  State 
in  the  place  and  at  the  instance  of  the  attorney- 
general. 

The  following  observations  from  a  notice 
cf  Mr.  Pierson  in  the  Cyclopedia  of  American 
Biography  arc,  we  think,  considerately  ex- 
pressed : 

"As  a  practitioner,  Mr.  Pierson  is  noted  for 
sound  legal  scholarship  of  the  broadest  de- 
scription. His  mind  is  most  keenly  analytical, 
a^c  beneath  a  polished  grace  of  manner  he  dis- 
plays an  alertness  of  mind  that  can  discern 
and  take  advantage  of  any  weak  point  in  an 
opponent's  case.  His  oratorical  powers  are 
of  the  highest  quality,  and  few  are  more  pow- 
erful with  juries.  He  has  made  a  specialty  of 
corporation  law,  and  has  appeared  in  several 
cases  -is  attorney  for  the  Southern  Pacific 
Company  and  other  notable  companies.  In 
1888  he  began  the  study  of  astronomy,  and 
is  now  one  of  the  most  noted  amateurs  in 
the  country.  He  owns  a  fine  8^-inch  reflect- 
ing telescope,  the  largest  in  the  State  outside 
the  Lick  Observatory,  and  with  it  he  has 
made  a  number  of  exhaustive  and  brilliant 
observations.  He  w-as  president  of  the  As- 
tronomical Society  of  the  Pacific  in  1891,  and 
IS  a  member  of  the  Royal  Astronomical  So- 
ciety of  England,  of  the  British  Astronomical 
Association,  and  the  San  Francisco  Academy 
of  Sciences.  Mr.  Pierson  was  married  in  1853 
at  San  Francisco  to  Anna  Rogers,  daughter 
of  Captain  Lawrence  B.  Edwards.  They  have 
two  sons,  Lawrence  H.  Pierson  and  Frederick 
H.  Pierson. 

In  1890  Mr.  Pierson  formed  a  law  partner- 
.-.li.i.  with  Robert  Brent  Mitchell,  under  the 
style  of  Pierson  &  Mitchell,  which  continued 
uninterruptedly  and  prosperously  for  nearly 
ten  >ears.     He  is  now  alone  in  the  practice. 


STEPHEN  M.  WHITE. 

Stephen  Mallory  White,  ex-United  States 
senator,  and  a  strong  leader  of  the  California 
Democracy,  perhaps  the  most  eminent  of  the 
State's  native  sons,  w-as  born  in  San  Fran- 
cisco on  the  19th  of  January,  1853.  The  cot- 
tage in  which  he  was  born  stood  on  Taylor 
street,  between  Turk  street  and  Golden  Gate 
avenue.  It  was  built  in  1850,  and  held  its 
ground  so  late  as  the  year  1881,  when,  although 
it  was  still  a  fair  looking  residence,  it  disap- 
pear for  "business  reasons." 

Mr.  White's  father  was  William  F.  White, 
a  San  Francisco  merchant,  who  was  in  part- 
nership with  John  A.  McGlynn  and  D.  J.  Oli- 
ver.    He  came  with  his  parents   from  Ireland 


when  four  years  old,  and  was  raised  on  a  farm 
in  Pennsylvania  and  educated  at  Oxford  Acad- 
emy, New  York.  He  arrived  with  his  wife  at 
San  Francisco  in  January,  1849.  Shortly  after 
the  birth  of  his  son,  he  removed  with  his 
family  to  the  Pajaro  Valley.  There  he  en- 
gaged in  farming,  established  a  home  and 
raised  his  children,  two  sons  and  six  daugh- 
ters. He  had  considerable  literary  ability,  and 
wrote  many  articles  for  the  public  press.  He 
was  the  author  of  the  large  and  interesting 
book  entitled  "Pioneer  Times  in  California," 
wliich  he  published  under  the  name  of  "Wil- 
liam Gray."  He  was  a  member  of  the  consti- 
tutional convention  of  1878,  and  was  one  of  the 
State  Bank  Commissioners  for  a  number  of 
years  by  appointment  of  Governor  Irwin.  In 
the  triangular  contest  for  State  officers  in  1879, 
between  the  Republicans,  Democrats  and 
W^orkingmen,  William  F.  White  was  the  can- 
didate of  the  last-named  party  for  Governor, 
and  was  second  in  the  race.  He  died  at  Oak- 
land, where  he  had  lately  taken  up  his  resi- 
dence, on  May  16,   1890,  aged  74  years. 

Stephen  M.  White  attended  a  private  school 
in  Santa  Cruz  county  from  the  time  he  was 
thirteen  years  old  until  reaching  sixteen.  In 
his  earlier  boyhood  he  had  been  taught  at 
home  by  his  father's  sister,  an  extremely  good 
woman,  of  superior  and  cultivated  mind.  At 
sixteen  he  was  sent  to  St.  Ignatius  College, 
San  Francisco,  where  he  remained  a  year  and 
a  half.  He  then  went  to  Santa  Clara  College, 
from  which  he  was  graduated  in  June,  1871. 
He  studied  law  at  Watsonville  and  Santa 
Cruz.  He  pursued  his  studies  for  about  ten 
months  in  the  office  of  A.  W.  Blair  in  Wat- 
sonville. about  twelve  months  with  .\lbert 
Hagan  in  Santa  Cruz,  and  some  eight  months 
W'ith  C.  B.  Younger  in  Santa  Cruz.  He  was 
admitted  to  the  bar  of  the  Supreme  Court  at 
Sacramento  on  the   14th  of  April.   1874. 

After  being  admitted  to  practice,  Mr.  White 
removed  to  Los  Angeles,  and  very  soon  there- 
after took  a  leading  place  at  an  able  bar.  He 
was  district  attorney  for  the  years  1883  and 
1884,  elected  on  the  Democratic  ticket.  He  re- 
ceived more  votes  than  any  other  candidate 
on  his  ticket,  either  a  State,  county  or  town- 
ship office.  A  few  years  after  that  time  the 
city  of  Los  Angeles,  and  the  county,  changed 
in  politics  most  radically,  by  an  inflow  of  pop- 
ulation from  New  England,  and  while  Mr. 
White  could  not  now  carry  tlie  county,  prob- 
ably, for  any  political  office,  he  is  held  in  uni- 
versal regard  for  his  great  abilities  and  un- 
challenged integrity.     He  is  attorney  for  Gen- 


W.  m.  "Pierson 


History  of  the  Bench  a)id  Bar  of  Califurnia. 


645 


eral  Otis,  llic  proprietor  of  tlic  great  Tiiiics 
newspaper,  the  leading  Rei)iil)lican  organ  of 
Southern  California. 

Mr.  White  is  familiarly  known  in  every  com- 
munity in  the  State,  having  "stumped"  for  his 
party  in  many  campaigns.  He  is  a  man  of 
large  build,  has  a  powerful  and  finely-toned 
voice,  is  a  ready  debater,  and  a  masterful  ])ublic 
speaker.  He  has  the  oratorical  gift.  He  is 
really  a  wonderful  man  in  this  tield,  and  the 
man  to  address  great  assemblies.  We  have 
said  that  his  county  changed  its  politics;  but 
he  represented  it  as  State  senator  from  March, 
1887,  to  March,  1889.  Governor  Bartlett,  dying 
in  office  on  September  12,  1887,  Lieutenant- 
Governor  Waterman  became  Governor.  Mr. 
White  having  been  in  march  of  that  year 
elected  by  the  State  senate  its  president  pro 
lent.,  now  succeeded  to  the  office  of  Lieuten- 
ant-Governor. 

He  was  elected  United  States  senator  in  Jan- 
uary, 1893,  at  the  age  of  forty,  and  served  a 
full  term  of  six  years,  ending  March  3,  1899. 
He  was  chairman  of  the  Democratic  national 
convention   of   1896. 

When  he  was  elected  a  federal  senator  our 
legislature  was  nearly  balanced  between  the 
two  great  parties.  The  senate  was  Republican, 
the  assembly  Democratic.  A  few  Populists 
in  the  lower  house  could  turn  the  scales  either 
way  in  joint  convention.  One  of  them  did 
turn  the  scales  finally,  by  supporting  Mr.  White 
and  accomplishing  his  election  by  a  majority 
of  one.  This  gentleman  was  Hon.  T.  J.  Kerns, 
assemblyman  from  Los  Angeles.  He  was  an 
old  personal  friend  of  the  Senator,  and  his 
death  occurred  in  December,   1900  . 

Worthy  of  special  mention,  in  his  faithful 
service  as  our  senatf)r  for  six  years,  is  the  part 
he  played  in  the  long  and  hard  struggle  to 
secure  a  deep-water  harbor  at  San  Pedro.  Mr. 
White  has  been  a  member  of  the  Los  Angeles 
Chamber  of  Commerce  since  1889  (that  body 
was  founded  in  September,  1888),  and  in  a 
very  engaging  history  of  the  Chamber,  by 
Charles  Dwight  Willard,  published  in  1900,  the 
Senator's  work  now  referred  to  is  gracefully 
applauded. 

.After  stating  that  the  first  Ijoard  of  j.;oveni 
nient  engineers  appointed  to  decide  upon  the 
best  point  for  a  deep-water  harbor,  in  their 
report  of  December,  1891,  were  unequivocally 
in  favor  of  San  Pedro,  and  advised  an  ap- 
propriation of  about  $3,000,000  for  tin-  un- 
dertaking; and  that  the  report  of  the  second 
board,  submitted  in  the  closing  days  of  1892, 
reviewed  the  whole  situation,  and  declared  that 


San  f'edro  was  preferable  on  every  considera- 
tion, and  estimating  the  cost  of  construction 
at  about  $2,900,000.  the  history  proceeds  as  fol- 
lows : 

"A  great  piece  of  good  fortune  fell  to  Los 
.•\ngcles  at  this  time,  in  the  election  of  Stephen 
M.  Wiiiie  to  the  senate,  a  man  who,  by  reason 
of  Ins  residence  in  this  city,  was  thoroughly 
familiar  with  all  the  phases  of  the  harbor  con- 
troversy, and  who  was  possessed  of  the  brains, 
honesty  and  courage  that  were  needed  at  such 
a  crisis.  In  the  fall  of  1895  an  organization 
was  formed,  known  as  the  Free  Harbor 
League,  having  for  its  object  the  assistance  of 
the  Chamber  of  Commerce  in  its  work  for  San 
Pedro.  As  the  United  States  Treasury  was  at 
this  time  in  a  depleted  condition,  it  was  pro- 
posed by  the  League  that  the  agitation  for  the 
outer  harbor  be  laid  aside  for  one  season,  and 
that  a  request  should  be  put  in  merely  for 
such  a  sum  as  would  be  needed  for  the  partial 
improvement  of  the  inner  harbor  of  San  Pe- 
dro, a  matter  of  $400,000.  In  February,  1896, 
four  delegates,  H.  G.  Otis.  W.  C.  Patterson, 
W.  G.  Kerckhoff  and  W.  I).  Woolwine.  were 
sent  on  to  Washington  to  present  this  mat- 
ter. They  did  so,  and  received  assurances 
from  the  chairman  and  other  members  of  the 
house  committee  on  rivers  and  harbors  that 
the  petition  would  be  granted. 

"The  people  of  Los  Angeles  were  greatly  as- 
tonished some  weeks  later,  when  the  news  came 
that  the  bill,  which  was  about  to  be  reported 
to  the  hoitse,  contained  not  only  the  appropria- 
tion which  had  been  asked  for  the  inner  har- 
bor at  San  Pedro,  but  also  the  stun  of  $2,900,- 
000  for  Santa  IS'Ionica.     *     *     ^^ 

"Upon  this  the  old  ciMitrover.sy  started  up  in 
a  somewhat  new  form,  l)ut  with  more  than  its 
ancient  virulence.  The  h'ree  Harbor  League 
protested  against  any  money  being  spent  on  the 
Santa  Monica  harbor,  and  demanded  that  the 
$2,900,000,  if  such  a  sum  were  possible  to  be 
secured,  should  be  devoted  to  San  Pedro.  The 
Chamber  of  Commerce  was  urged  by  the  repre- 
senlali\e  of  \\]v  district  (  iu  congress).  Mr. 
James  McLachian  to  act  on  the  issue,  and  the 
directors  passed  a  resolution  reaffirming  their 
.illegiance  to  San  Pedro.  *  *  The  house 
acted.  Ilien  going  up  to  the  senate.  Senator 
White  succeeded,  after  a  long  and  determined 
fight,  in  which  a  number  of  senators  discussed 
the  whole  question  in  open  session,  in  getting 
the  item  of  $2.()oo.ooo  placed  on  the  continuing 
coniraei  list,  to  he  i^xjiended  on  one  or  the 
other  location,  as  should  be  determined  by  a 
new  i)oar(I  of  engineers  (ibis  was  the  third),  to 


646 


History  of  the  Bench  and  Bar  of  California. 


consist  of  one  from  the  navy,  one  from  the 
coast  survey,  and  three  from  civil  life,  ap- 
pointed by  the  President.     *     *     * 

"in  December  of  1896  the  new  board  met  in 
Los  Angeles.  It  consisted  of  Rear  Admiral 
John  G.  Walker,  A.  F.  Rogers  of  the  coast 
survey,  W.  H.  Burr,  George  S.  Morrison  and 
Richard  P.  Mors^an.  Their  report  was  filed 
the  following  March,  and  was  four  to  one 
in  favor  of  San  Pedro,  the  one  being  Richard 
P.  Morgan. 

"One  more  obstacle  remained  to  be  overcome 
in  the  determined  opposition  of  General  Russell 
A.  Alger,  Secretary  of  War.  to  the  expenditure 
of  the  appropriation,  and  a  whole  year  was  con- 
sumed in  listening  to  an  extraordinary  collec- 
tion of  excuses  and  reasons  why  the  work 
should  not  be  begun.  At  last,  after  he  had  been 
forced  from  one  position  to  another,  until  the 
patience  of  the  w^hole  State,  and  finally  of  the 
President  himself,  was  exhausted,  the  contract 
was  let  to  the  firm  of  Heldmaier  &  Neu.  of 
Chicago,  and  the  work  begun." 

IMr.  White  is  in  the  prime  of  his  manhood, 
and  in  the  fullness  of  activity  at  the  Los  An- 
geles bar.  In  1899  he  passed  through  a  criti- 
call  illness,  but  is  fully  restored  to  his  natural 
energies.  He  is  a  married  man.  with  several 
children,  the  oldest,  a  son.  being  now  nearly 
grown  to  man's  estate. 

Mrs.  White  was  Miss  Hortense  Sacriste. 
an  accomplished  lady  of  Los  Angeles,  of 
French  descent.  The  marriage  occurred  at  the 
Catholic  Cathedral  of  Los  Angeles,  on  the  5th 
of  June,  1883. 


JOHN  D.  WORKS. 


Judge  Works  was  born  in  Indiana  in  1847. 
His  boyhood  was  passed  on  a  farm  and  at  a 
country  school.  At  the  age  of  seventeen  he 
enlisted  in  an  Indiana  regiment  in  the  War 
of  the  Rebellion,  and  had  nearly  two  years' 
service  in  the  field  before  the  conflict  ended. 
He  took  part  in  the  battle  of  Nashville,  and 
at  the  capture  of  Mobile.  Returning  to  home 
and  school,  he  turned  his  mind  to  the  law  at 
the  age  of  twenty.  Hon.  A.  C.  Dowmey,  his 
uncle,  who  was  for  six  years  a  Judge  of  the 
Indiana  Supreme  Court,  and  who  was  after- 
wards Dean  of  the  law  school  at  De  Pauw  Uni- 
versity in  that  state,  was  then  forming  a  class 
of  law  students,  and  young  Works  became  a 
member.  The  course  of  reading  was  thorough, 
and  embraced  the  recitation  of  forty-two  vol- 
umes, a  quantity  largely  in  excess  of  what 
would  be  enjoined  in  any  western,  if  not  in 
anv  eastern  law  school.     He  was  admitted  to 


the  bar  in  1868,  and  shortly  joined  his  father, 
James  A.  Works,  in  practice.  He  was  met  at 
once  by  a  large  volume  of  business,  his  father 
being  advanced  in  years  and  throwing  the  chief 
responsibility  upon  him.  The  young  lawyer 
was  from  that  time  engaged  in  some  of  the 
most  important  cases.  One  of  these  was  the 
case  of  Merritt  vs.  Humphrey,  the  contest  of 
a  will.  The  testator  was  a  very  wealthy  farmer 
and  during  his  life  boasted  to  one  of  the  old 
practitioners  of  the  county  that  he  had  never 
paid  out  any  money  to  lawyers.  The  lawyer 
remarked  that  every  man  had  to  contribute 
something  to  the  support  of  the  lawyers,  and 
that  if  he  paid  nothing  during  his  life,  his  es- 
tate would  have  to  make  it  up  after  his  death. 
The  farmer  died  soon  after,  leaving  a  will  dis- 
inheriting a  part  of  his  children.  The  result 
was  a  long  and  expensive  litigation,  out  of 
which  Mr.  Works  and  several  other  attorneys 
made  good  round  fees. 

Mr.  Works  also  had  some  public  experience 
before  removing  to  California,  having  served 
a  term  in  the  lower  branch  of  the  legisla- 
ture, and  as  member  of  the  judiciary  commit- 
tee  of   that   body. 

It  was  in  1877  that  Mr.  Works  began  writ- 
ing his  "Indiana  Practice  and  Pleading."  The 
work  is  in  three  volumes.  It  grew  out  of  the 
indefatigable  author's  own  private  digest.  There 
were  already  two  works  of  the  kind  in  the 
hands  of  the  Indiana  bar,  but  this  latest  soon 
came  to  be  accepted  as  indispensable.  Wher 
the  second  volume  appeared.  Mr.  L.  O.  Schroe- 
der,  of  Vevay,  Indiana,  wrote  to  The  Law 
Counsellor,  that  "the  work  is  all  that  the  au- 
thor's most  ardent  admirers  and  sanguine 
friends  could  expect  or  hope  for." 

Judge  Works  moved  to  California  in  1883. 
In  April  of  that  year  he  settled  at  San  Diego. 
He  was  soon  afterwards  employed  in  a  case 
that  became  celebrated,  that  of  Burton  vs. 
McDonald  et  al..  involving  the  title  to  the 
Jamul  Ranch,  a  large  and  valuable  tract  of 
land  in  San  Diego  county.  He  represented 
the  widow\  and  heirs,  and  administrator,  who 
claimed  that  the  title,  which  ran  to  the  widow 
and  children,  was  held  in  trust  by  them,  and 
that  the  property  was  subject  to  administra- 
tion and  distribution  to  the  heirs,  as  against 
Wallace  Leach,  who  claimed  the  property 
under  sheriff's  sale.  The  case  was  decided 
against  the  heirs  by  the  court  below  on  all  of 
the  material  points,  but.  on  appeal,  the  Su- 
preme Court  reversed  the  judgment  on  all 
points,  the  decision  being  as  broadly  in  favor 
of   Mr.   Works'   position,   as   the   judgment   of 


1 


W.  J.  Hunsaker 


History  of  the  Botch  a)id  Bar  of  California. 


647 


the  coiirl  IjcIuw  had  been  the  other  way.  The 
case  went  back  to  the  Superior  Court  of  San 
Diego  count}',  but  in  the  meantime  Mr.  Works 
had  become  Judge  Works  of  that  very  court. 
The  late  Justice  McKee  was  employed  to  take 
his  place  in  the  case.  Upon  a  second  trial 
Judge  Works,  of  course,  not  sitting,  the  case 
was  decided  in  conformity  to  the  Supreme 
Court  decision. 

On  October  i,  1886,  Judge  Works  became 
Judge  of  the  Superior  Court  of  his  county  by 
appointment  made  by  Governor  R.  W.  Water- 
man, to  serve  out  a  part  of  a  term.  The  bar 
of  San  Diego  county  had  memorialized  in  favor 
of  this  selection.  At  the  next  general  election 
Judge  Works  was  chosen  his  own  successor, 
the  Democrats  not  placing  any  candidate  in 
the  field.  At  the  end  of  a  year  thereafter  he 
resigned  because  the  practice  of  law  offered 
him    much    larger    compensation. 

On  the  1st  of  October.  1888.  Governor  Wa- 
terman commissioned  Judge  Works  a  Justice 
of  the  Supreme  Court  of  California  to  suc- 
ceed, until  the  next  election,  Hon.  E.  W.  Mc- 
Kinstry.  who  had  resigned.     On   November  6. 

1888.  he  was  elected  to  the  place  by  the  peo- 
ple, defeating  Hon.  J.  F.  Sullivan,  the  Demo- 
cratic candidate,  notwithstanding  the  fact  that 
the  latter  received  the  astonishing  majority  of 
eight  thousand  in  San  F'rancisco.  where  he 
was  known  all  his  life,  and  where  Judge  Works 
was   comparatively   a    stranger. 

On  the  Supreme  Bench  Judge  Works  was 
exceptionalh-  assiduous,  having  written  more 
opinions  than  any  of  his  high  associates  and 
these,  both  in  their  argumentation  and  con- 
clusions, have  won  the  pronounced  favor  of 
the  bar.  He  wrote  the  opinion  in  the  cele- 
brated   case    of    Sharon    vs.    Sharon,    in    July, 

1889,  which  especially  showed  him  to  be  a 
man  of  discriminating  thought.  Pending  his 
election,  and  while  he  was  occupying  his  seat 
on  the  Supreme  bench,  under  a  temporary 
tenure,  as  stated,  he  paid  no  special  or  notice- 
able attention  to  his  own  candidacy,  but  gave 
hiinsclf  up  wholly  to  tlic  work  of  the  office. 
After  his  election  he  notified  his  publishers 
that  lie  could  not  complete  an  unfinished  law 
book  while  on  the  bench — that  the  people  of 
tiie  State  were  entitled  to  his  full  services,  and 
should  have  them  so  long  as  he  held  office.  The 
unfinished  work  just  referred  to  was  a  treatise 
on  the  "Principles  of  Pleading  and  Practice." 
The  object  of  the  work  is  to  give,  in  a  clear 
and  |)ractical  form,  tlie  general  principles  of 
pleading  and  practice  as  they  exist  at  the 
present  day.  as  affected  by  the  rules  of  plead- 


ing at  commi")n  law  and  in  e([uity  and  the  codes 
and  statutes  of  the  several  states.  It  is  neither 
a  work  on  common  law,  equity  nor  code  plead- 
ing and  practice ;  but  on  the  general  prin- 
ciples as  affected  by  them  all ;  and  is  adapted 
to  the  use  of  students  as  well  as  practicing  at- 
torneys. 

In  May,  1887,  at  San  Diego,  Judge  Works 
comnleted  a  small  work,  which  has  proved  a 
great  saving  of  labor  to  the  profession,  enti- 
tled "Removal  of  Causes  from  State  Courts 
to  Federal  Courts."  He  has  written  another 
worK,  entitled  "Courts  and  Their  Jurisdiction," 
which  was  published  by  the  Robert  Clarke 
Company,   Cincinnati,   in   1894. 

The  Judge  has  a  large  family.  One  of  his 
sons  is  Lewis  R.  Works,  an  able  lawyer  of 
San  Diego,  a  notice  of  whom  is  in  this  His- 
tory. 

Judge  Works  removed  his  residence  and 
main  office  to  Los  Angeles  on  February  i, 
1896.  At  that  time  he  entered  the  well-es- 
tablished law  firm  of  Wells,  Works  &  Lee. 
After  his  advent  in  the  office.  Colonel  Wells 
took  no  further  part  in  its  business  on  ac- 
count of  the  poor  state  of  his  health,  and 
Judge  Works  became  at  once  virtually  the  sen- 
ior member  of  the  firm.  It  was  not  long  until 
Colonel  Wells  retired  from  the  business  in 
name  as  well  as  in  fact,  the  firm  name  then 
becoming  Works  &  Lee,  which  it  has  been 
ever  since. 

The  Judge  has  been  engaged  since  leaving 
the  Supreme  bench  in  all  the  important  water 
litigation  in  Southern  California. 


WILLIAM    J.    HUNSAKER. 

This  gentleman  is  one  of  the  native  sons 
who  are  doing  honor  to  the  State  and  to  the 
legal  profession.  He  was  born  in  Contra 
Costa  county,  in  1855.  In  1869  he  removed 
with  his  parents  to  San  Diego,  where  he  was 
educated.  He  studied  law  there  under  the 
direction  of  Major  Chase  and  Judge  Baker, 
and  was  admitted  to  the  bar  in  1876.  He  was 
district  attorney  of  San  Diego  county  in  the 
years  1883-84.  He  practiced  thereafter  in  part- 
nership with  F.  W.  Britt  from  1889  to  1892. 
In  1892  he  removed  to  Los  Angeles,  and  soon 
became  the  attorney  of  the  Santa  I'e  Railway 
Company.  In  1900  he  formed  a  partnership 
with  F.  W.  Britt,  who  had  been  his  associate 
in  San  Diego,  under  the  firm  name  of  Huu- 
saker  &  Britt.     This  still  exists. 

Mr.  Ilunsakcr  is  among  the  leaders  of  the 
Los  Angeles  bar.  He  was  connected  with 
the  cases  growing  out   of  the  great   railroad 


648 


History  of  the  Bench  and  Bar  of  California. 


strike  of  1894;  the  Bear  Valley  foreclosure 
suit,  the  Golden  Cross  Mining  Company's  lit- 
igation, the  libel  case  of  Dr.  Hearne  against 
M.  H.  De  Young,  Robinson  against  the  Ivan- 
pah  Smelting  Company,  and  the  Southern  Cal- 
ifornia Fruit  Exchange  and  Consolidated  For- 
warding Company  against  the  Southern  Pacific 
and  Santa  Fe  Companies  before  the  Interstate 
Commerce  Commission. 

Mr.  Hunsaker  married  Miss  Florence  V. 
'  •  McFarland  on  the  27th  day  of  February.  1879. 
They  have  a   son   and   three  daughters. 

Mr.  Hunsaker  has  always  taken  an  active 
interest  in  the  development  of  Southern  Cali- 
fornia, and  has  long  been  a  member  of  the 
Chamber  of  Commerce.  He  was  recently 
elected  chairman  of  the  committee  on  law  of 
that  body,  which  numbers  one  thousand  of  the 
most  progressive  and  public-spirited  citizens 
of  Los  Angeles. 


S.  F.  LEIB. 


S.  F.  Leib  was  born  in  Fairfield  county, 
Ohio,  in  1848.  When  he  was  sixteen  years 
of  age  he  entered  the  army,  and  at  the  close 
of  the  war  he  attended  the  academy  near  his 
home.  He  then  went  to  the  University  of 
Michigan  at  Ann  Arbor,  and  graduated  in  the 
law  department  in  March,  1869,  just  after  he 
was  twenty-one.  In  that  year  he  came  to 
California  and  located  at  San  Jose.  He  be- 
came a  partner  in  the  finn  of  Moore  &  Laine, 
the  firm  name  then  being  Moore,  Laine  & 
Leib.  and  afterwards,  upon  the  admission  to 
the  firm  of  D.  M.  Delmas,  the  firm  name  was 
Moore,  Laine,  Delmas  &  Leib.  All  of  these 
have  long  been  justly  celebrated  names.  Later 
the  partnership  was  dissolved,  and  for  over 
twenty  years  past  Mr.  Leib  has  continued  the 
practice  of  law  by  himself. 

In  the  year  1889  he  was  appointed  as  one 
of  the  trustees  of  the  Leland  Stanford  Junior 
University,  and  in  i8g8  he  was  appointed  pres- 
ident of  the  board  of  trustees  of  that  univer- 
sity, and  still  holds  that  position. 

Mr.  Leib  is  one  of  the  strong  men  of  the 
bar  of  the  State,  and  universally  so  regarded 
by  the  profession  as  well  as  by  the  people. 
He  is  a  lawyer  of  broad  knowledge  and  ca- 
pacity, of  deep  reflection,  superior  judgment 
and  deliberate  action.  His  prosperity  has  been 
imbroken  from  the  commencement  of  his  pro- 
fessional career. 


E.  R.  TAYLOR. 

The  distinguished  dean  of  Hastings  College 
of  the  Law,  Edward  Robeson  Taylor,  as  orig- 
inal and  fecund  a  mind  as  the  annals  of  our 
bar  disclose,  was  born  in  Springfield,  Illinois, 
on  the  24th  of  September.  1838.  His  father 
was  Henry  West  Taylor,  a  native  of  Dela- 
ware, and  his  mother.  Mary  Thaw,  was  born 
in  Philadelphia,  Pa.  He  was  educated  at 
Kemper  School,  Booneville,  Mo.,  and  at  To- 
land  Medical  College,  San  Francisco,  now  the 
medical  department  of  the  State  University. 
He  arrived  in  California  on  the  4th  of  Febru- 
ary, 1862.  He  was  granted  the  degree  of 
Doctor  of  Medicine  by  the  college  named  on 
December  2.  1865.  From  December,  1867,  to 
December.  1871,  he  was  private  secretary  to 
Governor  Henry  H.  Haight.  He  was  admitted 
to  the  bar  by  the  Supreme  Court  in  January, 
1872,  and  practiced  law  in  San  Francisco  from 
that  time  until  his  retirement,  to  take  the  place 
of  dean  of  Hastings  College  of  the  Law,  in 
May,  1899.  In  October,  1879,  he  was  admitted 
to  the  bar  of  the  Supreme  Court  of  the  United 
States,  and  practiced  thereafter  in  that  highest 
tribunal  and  in  all  the  federal  courts  in  Cali- 
fornia. 

Doctor  Taylor,  for  so  he  is  universally 
called,  was  a  member  of  the  third  board  of 
freeholders  in  1886  to  frame  a  charter  for  San 
Francisco,  which  proposed  charter  was  de- 
feated ;  and  of  the  fifth  board  of  freeholders, 
1898,  that  framed  the  existing  charter  of  that 
city.  He  has  been  a  member  of  the  board  of 
trustees  of  the  San  Francisco  Public  Library 
since  June  7.  1886,  and  of  the  board  of  trustees 
of  the  San  Francisco  Law  Library  since  March 
30.  1895 ;  Vice-President  of  Cooper  Medical 
College  since  its  foundation,  in  1882,  and  Pres- 
ident of  the  San  Francisco  Bar  Association 
for   1890.   1891.   1894  and   1805. 

During  all  this  period  he  was  very  actively 
occupied  with  his  professional  business.  He 
was  a  conspicuous  figure  in  the  long  contest 
over  the  inheritance  of  the  great  estate  of 
Thomas  H.  Blythe,  being  the  attorney,  with 
Harvey  S.  Brown,  for  the  Williams  claimants, 
and  also  the  appointee  of  the  court  to  repre- 
sent absent  heirs  generally.  He  was  also  prom- 
inently connected  through  a  long  period  with 
the  litigation  over  the  "Pueblo  Survey"  of 
San  Francisco. 

Among  Dr.  Taylor's  published  writings  are 
the    following : 

Paper  on  Chronic  Myelitis,  published  in  Au- 
gust, 1869,  number  of  the  Pacific  Medical  and 
Su);^ical  Journal. 


History  of  the  Bench  and  Bar  of  California. 


649 


Paper  on  a  Case  of  Scirrlius  of  the  Pan- 
creas, in  llif  Ai)ril  nninl)cr,  1866,  same  jour- 
nal. 

Paper  on  the  Pathology  of  Bright's  Disease, 
published  in  the  December.  i86g.  number  of 
the  same  journal. 

Prize  essay  0)i  the  Chemical  Constitution  of 
the  Bile,  awarded  by  the  American  Medical 
Association,  and  printed  in  1871  in  their  pro- 
ceedings. 

Paper  on  Medical  Education,  read  before 
the  State  Medical  Society  of  California,  Octo- 
ber 2,  1872,  and  published  in  their  proceedings 
for   that   year. 

Paper  on  the  Ilstablishnicnt  of  the  Bounda- 
dies  of  the  Pueblo  Lands  of  San  Francisco, 
in  January  number,  1896,  of  the  Overland 
Monthly* 

Sonnets  of  Jose  Maria  de  Hcredia,  rendered 
into  English  :  published  by  William  Do.xey, 
San  Francisco;  two  editions,  1897  and  1898. 

Moods,  and  Other  Verses,  published  by 
Shephard  &  Eider,  San  Francisco,  1899. 

Memories,  and  Other  ferses.  printed  in  De- 
cember, 1900.  for  private  circulation. 

Dr.  Taylor  became  acquainted  with  Henry 
George  when  he  was  private  secretary  to  Gov- 
ernor Haight,  in  1870.  Cieorge  was  editing 
the  Sacramento  Reporter,  a  Democratic  paper. 
Henry  George.  Jr.,  in  his  life  of  his  father 
(1900),  states  that  the  two  men  "afterwards 
grew  intimate,  until,  when  "Progress  and  Pov- 
erty" was  being  written,  Taylor  was  chief 
friend,   critic   and  adviser." 

There  are  many  pleasing  references  to  Dr. 
Taylor  in  the  "Life  of  George."  George  be- 
gan writing  his  great  book  on  the  iSth  of  Sep- 
tember, 1877.  His  purpose  was  to  write  a 
magazine  article — an  inquiry  into  the  cause  of 
industrial  depressions,  and  indicating  a  remedy. 
"When  the  article  was  in  form,  he  read  it  to 
his  close  friend.  Dr.  Edward  R.  Taylor,  who 
was  now  Governor  Haight's  law  partner  in 
San  Francisco.  Taylor  was  much  impressed; 
so  much  so  that  he  urged  George  to  reserve 
publication  of  the  article,  and  to  give  the  sub- 
ject a  more  extended  treatment."     (Page  292.) 

Mr.  George  took  the  advice,  and  expanded 
his  article  into  a  book.  On  March  26,  1878. 
George  delivered  a  pay  lecture  in  San  I-'ran- 
cisco,  at  tile  reipiesl  df  the  Land  Kit'inin 
League  of  Califnrnia,  which  IkuI  just  been  or- 


ganized to  prt)pagate  his  ideas.  In  June  of 
the  same  year  he  lectured  on  "Moses"  before 
the  Young  Men's  Hebrew  Association.  This 
created  much  surprise  and  delight.  At  its 
close.  Dr.  Elkan  Cohn,  the  rabbi,  asked  of  the 
chairman,  Max  Popper :  "Where  did  you 
find  that   man  ?" 

"Nevertheless,  Dr.  Edward  R.  Taylor,"  re- 
marks the  author  of  the  life,  "who  also  had 
heard  the  address,  observed  to  Mrs.  George, 
as  they  walked  to  a  car  on  the  waj'  home, 
'Considered  in  itself,  that  lecture  was  a  fine 
effort,  but  Mr.  George  is  writing  a  book  that 
is  so  much  superior  in  importance  that  to 
stop  for  matters  like  this  is  like  wasting 
time.'  " 

On  page  308  the  same  author,  after  naming 
close  friends  with  whom  the  philosopher  ad- 
vised in  writing.  Progress  and  Poverty," 
among  the  number  being  Judge  James  V.  Cof- 
fey and  Judge  James  G.  Maguire,  says :  "But 
Taylor  was  the  mainstay,  the  only  man  who 
read  all  of  the  manuscript,  and  subsequently 
all  of  the  proofs.  *  *  *  To  him  George 
made  constant  reference,  ;ind  he  responded 
with  tireless  zeal."  "During  all  this  labor  of 
making  plates,"  to  quote  further,  "Taylor  was 
of  inestimable  service  to  his  friend,  encourag- 
ing and  suggesting,  reading  proofs,  and  even, 
like  George,  going  back  to  the  printer's  case 
to  set  a  few  'sticks'  of  type." 

George  made  written  and  happy  acknowledg- 
ment of  his  great  obligation  to  Dr.  Taylor, 
"not  only  as  compositor,  proof-reader,  critic 
and  poet,  but  still  more  by  the  clearness  of  his 
judgment,  the  warmth  of  his  sympathy,  the 
support  of  his  faith." 

Dr.  Taylor  married  in  San  Francisco,  on  the 
20th  of  April,  1870,  Agnes  Stanford,  a  niece 
of  Leland  Stanford.  Five  cnildren  have  been 
born  to  them,  of  whom  two  are  living,  namely : 
Edward  DeWilt  Taylor,  born  June  17,  1871. 
and  Henry  Huntly  Taylor,  born  December 
25.  1879. 


*  Dr.  Taylor  was  the  main  factor  as  counsel 
against  the  Stratton  survey,  and  was  personally 
cognizant  of  what  he  set  down  in  this  v.iluable 
article. — Editor. 


w.  s.  (;ooi)fi-:llow. 

William  Seolt  Gdodfellow  was  born  at  .\uck- 
land,  New  Zealand,  un  ihc  i6th  of  Septeml)er, 
1850.  llis  f.'ither  was  a  native  of  Scotland, 
•md  ;i  f.irnur,  and  lield  the  ofliee  of  magis- 
iiale.  Mr.  (ioodfellow  was  educated  in  Scot- 
land, at  ilie  Edinburgh  Collegiate  School,  and 
ilie  iviy.il  lligh  School  of  Edinbm-gh.  He  read 
law  \\\  liu'  L'niversity  of  Cambridge,  and  was 
.idmitted  to  the  bar  by  the  Inner  Temple  in 
London,  in  1873.  He  came  to  San  Francisco  in 


650 


History  of  the  Bench  and  Bar  of  California. 


February.  1875,  and  in  April,  1875,  was  ad- 
mitted to  the  bar  of  the  State  Supreme  Court. 

Mr.  Goodfellow  practiced  alone  in  San  Fran- 
cisco for  ten  years,  when  he  entered  into  part- 
nership with  John  R.  Jarboe  and  Ralph  C. 
Harrison,  under  the  firm  name  of  Jarboe,  Har- 
rison &  Goodfellow.  This  association  con- 
tinued for  five  years,  when  it  was  dissolved 
at  the  close  of  1890  by  the  election  of  Mr.  Har- 
rison to  the  Supreme  bench.  He  has  had  no 
other  partnership. 

Mr.  Goodfellow  was  not  long  in  getting 
into  a  good  practice  at  the  bar  of  our  great 
city.  He  is  a  man  entirely  without  preten- 
sion. His  law  reading  has  been  very  wide, 
his  perception  of  legal  principles  is  very  clear. 
He  is  extraordinarily  alert  and  strong  in  ap- 
prehension. 

An  old  legal  friend  of  -ours,  who  was  .so 
pleased  with  the  official  report  of  a  certain 
Supreme  Court  decision  that  he  called  it 
"a  beautiful  decision,"  would  call  Mr.  Good- 
fellow a  "beautiful"  lawyer.  His  presentation 
of  a  complicated  case  is  certainly  a  beauti- 
ful thing  to  see.  He  has  now  for  many  years 
had  in  professional  charge  the  largest  inter- 
ests and  been  the  legal  adviser  of  some  of  the 
most  "solid"  men.  In  addition,  great  causes 
which   have  engaged  the  courts  and  filled  the 


public  mind,  have  made  his  name  familiar  over 
a  wide  field,  and  he  is  acknowledged  by  men  of 
all  classes,  including  those  observant  minds 
that  best  adorn  the  bench,  to  be  one  of  the  car- 
dinal exponents  of  the  legal  profession  in  Cali- 
fornia. 

Mr.  Goodfellow  rested  from  his  labors 
in  1900,  to  make  a  tour  of  the  world.  He  re- 
turned, to  take  up  business  in  increased  ampli- 
tude. He  is  a  man  of  average  stature,  of 
quick  movement,  and  pleasant  address,  but 
so  busy  as  to  take  on  a  business  air.  Just 
one-half  of  his  fifty  staunch  years  have  been 
spent  in  this  State,  and  there  is  promise  of 
long  life  and  that  "autumn  will  come  in 
yellow  clad,  as  though  he  joyed  in  his  plen- 
teous store" — for  Mr.  Goodfellow,  with  all 
his  affairs  and  all  his  cares,  never  lets  them 
work  mischief  for  him,  but  "recruits"  in  sea- 
son. For  all  these  twenty-five  years  he  has 
made  his  home  in  Oakland.  He  has  never  had 
anything  to  do  with  politics.  "I  never  held 
an  ofiice,"  he  said  to  us  years  ago.  "and  I 
never  intend  to." 

Not  long  after  his  location  here,  Mr.  Good- 
fellow made  a  visit  to  England  and  married 
a  young  lady  whom  he  had  long  known.  They 
have  five  children,  all  born  in   California. 

THE  EDITOR. 


FEDERAL  AND  STATE 
JUDICIARY-PAST  AND 
^    ^     PRESENT     ^^   ^ 


I 


t&  eja  eia  G^  43  (&  e&  iS»^3<Sa'M^ 


HISTORY  of  the 
BENCH  and  BAR 
of  CALIFORNIA 


e>j5<i^!^Bj<nye^ep^ej,ej3 


FEDERAL  and  STATE  JUDICL\RY— 
PAST  and  PRESENT* 


JOSEPH  McKENNA. 

Hon.  Joseph  McKenna  is  not  sundered  from 
the  State  because  he  is  a  Justice  of  the  United 
States  Supreme  Court.  Independent  of  his 
sphere  at  Washington  City,  he  is  Presiding 
Judge  of  the  United  States  Circuit  Court  of 
Appeals  for  both  the  districts  of  CaHfornia — 
Northern  and  Southern.  The  Judges  of  each 
circuit  and  the  Justice  of  the  United  States 
Supreme  Court  for  the  circuit  constitute  a 
Circuit  Court  of  Appeals.  Justice  McKenna 
has  the  Ninth  Judicial  Circuit,  which  takes  in, 
in  addition  to  California,  Arizona,  Nevada, 
Oregon,  Washington,  Idaho,  Montana,  and 
Alaska.  The  Circuit  Judges  who  sit  with  him 
on  his  official  visits  to  San  Francisco  are  Hon. 
William  B.  Gilbert  of  Portland,  Oregon;  Hon. 
Erskine  M.  Ross  of  Los  Angeles,  and  Hon. 
W.  W.  Morrow  of  San  Francisco. 

Judge  McKenna  was  born  in  Philadelphia, 
Pa..  August  10,  1843.  He  attended  St.  Joseph's 
College  of  that  city,  but  was  not  graduated, 
as  his  parents  brought  him  with  them  on  their 
removal  to  California  in  1S55,  when  he  was 
twelve  years  of  age.  They  settled  in  Renicia. 
where  he  continued  his  education  at  the  i)ul)lic 
schools,  and  at  the  Collegiate  Institute.  At 
the  institute  he  was  prepared  for  the  bar.  and 
was  admitted  to  practice  by  the  State  Supreme 
Court   in   1865.     He  was  twice  elected   district 


attorney  for  Solano  county,  and  served  four 
years,  beginning  in  March,  1866. 

At  the  twenty-first  session  of  the  legisla- 
ture he  represented  his  county  in  the  assem- 
bly— December,  1875,  to  April,  1876.  The  leg- 
islature at  that  session  was  Democratic  over- 
whelmingly in  both  branches.  Judge  Mc- 
Kenna was  the  Republican  candidate  for 
speaker  of  the  assembly,  and  received  twelve 
votes,  to  sixty-one  for  Hon.  G.  J.  Carpenter 
of  Placerville. 

Judge  McKenna  practiced  law  at  Fairfield, 
the  Solano  county  seat,  for  about  eight  years 
after  this,  until  he  took  his  seat  in  the  national 
house  of  representatives.  He  was  elected  to 
that  body  four  times  consecutively,  from  the 
third  district.  His  period  of  service  therein 
was  from  March  4,  1885,  until  in  the  year 
1892.  Mis  last  term  would  have  ended  March 
3.  i8(j3.  but  he  resigned,  to  accept  the  position 
of  L'niled  States  Circuit  Judge  for  the  District 
of  Northern  California,  to  which  he  was  ap- 
pointed by  President  Harrison.  He  took  that 
bench  as  successor  of  Lorenzo  Sawyer,  who 
died  in  September,  i8qi,  after  filling  the  oflice 
fnr   nearly   twenty-two  years. 

While  tlu-  Judge  was  on  this  bench,  Leland 
.Stan l"i  11(1  (lied  (June  21,  1893,)  and  when  the 
will  (if  the  millionaire  senator  was  opened,  it 
was    found    to    contain    a    contingent    proviso. 


*It  was  found  that  many  of  the  men  svho  liave  occupied  the  liencli  in  California,  including  some  of  the  most 
distinguished  of  our  jurists,  could  be  spoken  of  more  appropriately  in  other  divisions  of  this  History.  Accordingly 
on  other  pages  (see  index)  there  appear  sketches  of  Lawrence  Archer,  Joseph  G.  Baldwin,  Isaac  S.  Belcher,  Nathan- 
ial  Reiinett,  M.  C.  lilake,  John  S.  Chapman,  Alexander  Campliell,  John  Currey,  \Vm.  P.  Daingerfield,  Stephen  J. 
Field,  John  S  Hager,  S.  C.  Hastings.  Solomon  Heydenfeldt,  Ogden  HolTinan,  Jos.  P.  Hoge,  Matt  F.  Johnson,  Hugh 
C  Murray,  Jos.  W.  McCorkle,  E.  W.  McKinstry,  O.  C.  Pratt,  Tod  Rol)iuson,  E.  t).  Sawyer,  Lorenzo  Sawyer,  Niles 
Searls,  James  M.  Shatter,  Oscar  L.  Shafter,  John  R.  Sharpstcin,  David  S.  Terry.  Peter  VanClief,  Walter  Van  Dyke 
Wm.  T.  Wallace,  Jami  s  A.  Waymire,  E.  D.  Wheeler,  John  D.  Works,  and  Selden  S.  Wright.— Editor. 


654 


History  of  the  Bench  and  Bar  of  California. 


whereby  Judge  McKcnna  was  to  become  one 
of  the  executors  in  the  event  that  Mrs.  Stan- 
ford resigned,  or  for  any  reason  became  in- 
capacitated. Between  the  dates  of  the  filing 
of  the  will  in  the  San  Francisco  Superior  Court 
and  its  admission  to  probate,  there  was  much 
speculation  among  lawyers  and  others  as  to 
the  course  the  Judge  would  take  in  this  mat- 
ter. He  filed  a  renunciation  on  the  same  day 
on  which  the  will  was  proved.  He  gave  to 
a  reporter  his  reasons,  as  follows  : 

"In  the  first  place,  it  would  have  been  a 
phj'sical  impossibility  for  mc  to  have  dis- 
charged the  duties  of  both  positions  if  the  con- 
tingency had  arisen  for  making  the  effort. 
For  tliat  reason  I  deemed  it  advisable  to  de- 
cline, in  advance,  a  trust  that  I  felt  1  could 
never  properly  carry  out. 

"Furthermore,  it  might  be  deemed  incom- 
patible with  my  office  as  United  States  Judge 
to  maintain  a  relationship  that  would  give 
possible  ground  for  comment  if  I  should  par- 
ticipate in  the  hearing  of  cases  where  the 
Southern  Pacific  Company  or  the  Stanford  es- 
tate  held   interests. 

"If  you  ask,  did  I  think  the  contingency  in- 
dicated in  Senator  Stanford's  will  was  suffi- 
cient to  disqualify  me,  I  answer,  no.  The  con- 
tingency was  very  remote — too  remote  to 
amount  to  a  legal  objection;  yet,  to  avoid 
the  possibility  of  criticism  in  the  mind  of  any 
person,  and  to  satisfy  my  own  idea  of  what  was 
proper  in  my  situation,  I  took  this  action. 
Even  if  Mrs.  Stanford  had  seen  fit  to  ask  me 
and  the  other  gentlemen  to  act  as  trustees  or 
executors,  as  contingently  provided  in  the 
will.  I  could,  no  doubt,  have  asked  some  other 
Judge  to  sit  for  me  when  suits  for  or  against 
the  Stanford  interests  were  being  tried.  I 
could  have  done  that,  but  I  would  not  have 
cared  to  do  so,  and  in  view  of  the  remote  prob- 
ability of  my  being  called  on  to  actively  take 
part  in  the  administration  of  the  Stanford  es- 
tate, 1  thought  it  best  to  sever  even  the  slight 
association  with  that  estate  which  in  the  mind 
of  the  public  I  might  be  considered  to  hold. 

"Mrs.  Stanford  has  seen  fit  to  assume  her 
I)Osition  as  sole  executrix,  wisely,  I  think,  and 
there  is  no  reason  to  doubt  that  she  will  live 
to  carry  out  the  provisions  of  the  trust  without 
requiring  the  assistance  of  any  of  the  gentle- 
men so  kindly  mentioned  in  the  Senator's  will. 
She  is  in  rol)ust  condition,  mentally  and  phy- 
sically, and  fully  equal  to  the  task  of  complet- 
ing the  terms  of  the  will. 

"Mrs.  Stanford  knew  of  my  intention  from 
the  day  that  the  will  was  opened,  as  did  also 
her    lawyers,    and    they    understood    the    mo- 


tives that  led  me  u.)  form  my  resolution.  They 
knew  that  it  was  no  lack  of  appreciation  of  the 
high  esteem  which  Senator  Stanford  mani- 
fested for  nie  in  designating  me  in  his  will 
as  a  contingent  executor.  It  was  only  be- 
cause, as  I  have  already  indicated,  my  own 
views  on  the  subject  carried  my  mind  to  the 
conclusion  on  which  I  acted. 

"My  renunciation  of  the  right  to  serve  as 
executor  was  filed  on  the  17th,  the  very  day 
that  Mrs.  Stanford  proved  the  will  and  had 
it  admitted  to  probate.  I  could  not  offer 
to  renounce  my  right  until  after  the  will  had 
been  established,  and  as  I  did  not  have  pos- 
session of  the  will  nor  the  control  of  it  in  any 
way,  it  was  not  within  my  power  to  hasten 
its  legal  acceptance." 

The  interviewer  adds  these  observations 
which  are  of  interest,  if  not  in  close  connec- 
tion with  our  subject  : 

"The  declination  of  Judge  McKenna  to  as- 
sume the  trust  imposed  on  him  by  Senator 
Stanford's  last  will  and  testament  still  leaves 
a  trio  o'f  able  financiers  who  may  be  called 
on  to  administer  the  Stanford  estate  in  the 
event  that  Mrs.  Stanford  should  die,  resign 
or  for  any  reason  become  disqualified  or  in- 
capacitated. These  gentlemen  are  D.  O.  Mills 
of  New  York  City,  a  near  friend  of  the  dead 
senator ;  Captain  N.  T.  Smith,  at  present  treas- 
urer of  the  Southern  Pacific  Company,  and 
Stephen  T.  Gage,  for  years  Senator  Stanford's 
trusted  adviser  and  confidential  agent.  If  at 
any  time  Mrs.  Stanford  should  wish  to  re- 
lieve herself  in  any  degree  of  the  burden  of 
the  vast  trust  imposed  by  her  husband's  will, 
she  would  be  at  liberty  to  seek  the  counsel 
and  advice  of  these  gentlemen,  ripe  in  years 
and  rich  in  experience  with  such  subjects  as 
would  be  taken  to  them  for  their  consideration 
and  judgment. 

"  'The  condition  of  the  estate  is  so  admira- 
ble.' said  one  of  Mrs.  Stanford's  friends  yes- 
terday, 'that  it  can  be  handled  without  the 
slightest  difficulty  or  friction,  notwithstanding 
its  vast  proportions,  and  Mrs.  Stanford  is  con- 
ceded to  be  wholly  able  to  do  all  things  need- 
ful for  fulfilling  the  requirements  of  the  trust. 
She.  better  than  all  others,  knows  the  plans 
and  desires  of  Senator  Stanford  touching  the 
Lcland  Stanford  Jr.  l^niversity  and  its  future 
management.  Therefore,  she.  belter  tli.in  all 
others,  is  qual.ried  to  achieve  the  objects  of  his 
wishes  in  this  regard.'  " 

In  March.  1897.  Judge  McKenna  resigned  the 
Circuit  Judgeship  to  accept  the  office  of  United 
States  Attorney-General  in   the  Cabinet  of  Pres- 


History  of  the  Bench  and  Bar  of  California. 


655 


ident  McKinley  at  the  beginning  of  that  Pres- 
ident's term.  On  the  eve  of  his  departure  for 
Washington  City,  a  banquet  was  given  to  the 
Judge  by  prominent  citizens.  The  editor  of 
this  History  has  preserved  his  copy  of  the 
printed  invitations  sent  out,  as  a  memento  of 
a  very  delightful  and  interesting  occasion.  It 
is  as  follows : 

Palace  Hotel, 
San  Francisco,  Feb.  15,  1897. 
Dear  Sir :  The  citizens  of  California  will 
give  a  banquet  at  the  Palace  Hotel,  on  Tues- 
day evening,  23d  insl.,  to  Hon.  Joseph  Mc- 
Kenna,  U.  S.  Circuit  Judge,  in  appreciation  of 
the  compliment  paid  this  State  by  his  appoint- 
ment to  a  Cabinet  position  ;  and  in  testimony 
of  his  worth  as  our  most  acceptable  and  hon- 
ored  representative. 

Your  presence  on  that  occasion,  with  partic- 
ipation in  the  festivities  of  the  hour,  is  cor- 
dially invited. 

By  request  of  the  Committee  on  Invitation. 
Henry    P.    Sonntag,    Chainiian. 
Barry  Baldwin, 
A.  A.  Watkins, 
Cornelius  O'Connor, 
Hugh  Hume, 

Invitation   Committee. 

On  December  16.  1897,  while  filling  the  of- 
fice of  attorney-general.  Judge  McKenna  was 
appointed  by  President  McKinley  an  Asso- 
ciate Justice  of  the  Supreme  Court  of  the 
United  States,  to  succeed  Justice  Stephen  J. 
Field,  retired.  He  took  his  seat  on  that  highest 
bench  on  January  26,  1898.  He  resides  with 
his  family  in  Washington  City,  and  in  seek- 
ing a  home  location,  found  an  agreeable  one 
on    California   avenue. 


WILLIAM  W.  MORROW. 

The  Judge  of  the  United  States  Circuit  Court 
at  San  Francisco  was  born  July  15,  1843,  in 
Wayne  county,  Indiana.  He  was,  like  so 
many  of  our  subjects,  a  farmer's  son,  his 
father  dying  when  William  W.  was  nine  years 
old,  and  leaving  his  family,  consisting  of  the 
boy  and  his  mother,  in  straitened  circum- 
stances. For  some  five  years  the  lad  worked 
on  farms  in  Illinois,  attending  school  in  the 
winter  months.  He  also  managed  to  secure 
private  instruction  in  modern  languages,  Latin, 
niatliematics  and  enerineering,  intending  to  fol- 
low tile  last  named  pursuit  as  the  business  of 
his  life.  His  ancestors,  whom  he  can  trace 
for  six  generations,  went  from  Scotland  lo 
Ireland,  where  his  father  was  born,  and  whence 
he  emigrated  to  America  in  1835.  He  (the 
elder  Morrow)  was  a  correspondent  of  the 
London  Times,  which  position  he  surrendered 
to  go  to  farming.     He  died  in  1852. 


After  devoting  a  year  to  aprenticeship  to  a 
mechanical  trade  in  Ilinois,  young  Morrow 
removed  to  California,  arriving  in  September, 
1859.  He  settled  at  Santa  Rosa  and  worked 
at  his  trade,  resuming  also  his  studies,  to 
which  he  gave  his  evening  hours.  For  a  short 
period  he  taught  school. 

In  April,  1862,  when  he  was  not  quite 
eighteen,  he  went,  with  a  party  of  young  gold 
hunting  adventurers,  from  Santa  Rosa  to  Ore- 
gon. Their  objective  point  was  the  placer 
mining  region  of  Idaho,  but  having  lost  their 
way  and  wandered  for  weeks  through  a  rough 
and  dangerous  country,  they  brought  up  on 
Day  river,  where  they  discovered  rich  placers. 
The  news  of  their  "find"  brought  a  rush  of 
miners,  and  Canyon  City,  where  Joaquin  Miller 
was  afterwards  County  Judge,  quickly  sprang 
into  being. 

In  the  fall  of  1862  Mr.  Morrow  returned 
with  some  "dust"  to  Santa  Rosa,  and  in  the 
following  January  he  went  east,  with  the  in- 
tention of  entering  some  college,  and  taking 
a  complete  course  of  study.  While  visiting 
Washington  he  was  appointed  by  Secretary 
Chase  to  a  position  in  the  treasury  department, 
which  he  held  for  two  years.  He  joined  the 
National  Rifles,  and  took  part  in  army  op- 
erations in  and  around  Washington  in  1863-4. 
In  January,  1865.  he  was  by  Mr.  Fessenden, 
then  secretary  of  the  treasury,  appointed  a 
special  agent  of  the  treasury  department,  and 
in  that  capacity  brought  to  San  Francisco  a 
shipment  of  $5,000,000.  Having  passed  his 
twenty-first  year,  he  abandoned  his  collegiate 
education  and  determined  to  remain  in  Cali- 
fornia. For  four  years  thereafter  he  was  cm- 
j)loyed  in  various  capacities  in  the  treasury 
and  internal  revenue  departments  in  San  Fran- 
cisco. During  this  period  he  gave  his  spare 
hours  to  the  study  of  law.  which  he  had  com- 
nuined  in  W'asiiington.  He  was  admitted  to 
ihe  l)ar  of  the  Supreme  Court  of  this  State 
in    1S69. 

He  was  very  soon  called  to  official  life.  In 
1870,  Hon.  L.  D.  Latimer.  United  States  Dis- 
trict Attorney  for  California,  apixiinied  him 
his  assistant,  which  post  he  held  during  Mr. 
Latimer's  term  of  four  years.  The  two  gen- 
tlemen had  met  years  before  at  Santa  Rosa 
.111(1  li.id  liccouu'  (inn  friends.  Tluy  continued 
to  be  associated  in  business  during  the  wiiole 
period  of  Mr.  Morrow's  professional  life,  hav- 
ing formed  a  private  law  partnership  when 
they  walked  out  together,  arm  in  arm.  from 
tile   ortice   of   the    I'liiled    States   district   attor- 


656 


History  of  the  Bench  and  Bay  of  California. 


In  the  early  eighties,  Judge  Morrow  was  for 
some  time,  the  regular  counsel  for  the  Board 
of  State  Harbor  Commissioners,  a  position  of 
grave  responsibility,  the  litigation  on  the  part 
of  the  State  affecting  the  harbor  and  water 
front  being  all   under  his  direction. 

In  1879  Mr.  Morrow  was  unanimously  ncjm- 
inated  by  his  party  for  State  senator  from  llic 
Ninth  district  of  San  Francisco  but  was  de- 
feated by  a  few  votes  by  Robert  P.  Hastings. 
The  district  was  and  is  opposed  to  him  polit- 
ically. In  1878  he  ran  on  the  Non-partisan 
ticket  for  delegate  to  the  Constitutional  Con- 
vention, and  with  his  whole  local  ticket  met 
defeat  by  the  Workingmen's  mushroom  party. 
In  1879  he  was  chosen  chairman  of  the  Repub- 
lican State  central  committee,  a  ])laco  which 
he  held  for  some  two  years,  evincing  marked 
■executive  ability. 

Judge  Morrow  was  elected  to  the  national 
house  of  representatives  three  times  in  suc- 
cession, as  a  Republican,  from  San  Francisco; 
and  served  three  full  terms,  from  March  4. 
1885,  to  March  4.  1891.  He  and  Henry  Edger- 
ton  had  been  defeated  for  congressmen  at  large 
in  September.  1882,  by  Charles  A.  Sumner  and 
John  R.  Glascock,  Democrats. 

At  the  close  of  his  congressional  service  in 
1891.  Judge  Morrow  resumed  law  practice 
in  San  Francisco  in  partnership  with  Hon. 
Frederick  S.  Stratton  (Morrow  &  Stratlon). 
This  association  lasted  hardly  a  year  when 
the  eminent  jurist,  Ogden  Hoffman,  United 
States  District  Judge  at  San  Francisco,  died 
(August,  1891),  and  our  subject,  who.  while 
Assistant  United  States  District  Attorney, 
had  tried  so  many  cases  before  him.  shortly 
after  took  his  place,  by  appointment  of  Presi- 
dent Harrison. 

Hon.  Joseph  McKenna  was  Judge  Morrow's 
colleague  in  congress  during  the  whole  of  the 
latter's  service  there.  He  was  appointed,  also 
in  1891,  to  the  bench  of  the  United  States  Cir- 
cuit Court  at  San  Francisco.  When  Judge 
McKenna  was  called  into  President  McKin- 
ley's  cabinet  in  the  spring  of  1897.  the  San 
Francisco  Bar  Association,  at  a  largely  at- 
tended meeting,  unanimously  passed  resolu- 
tions recommending  District  Judge  Morrow 
for  the  Circuit  Judgeship.  No  other  name  was 
suggested.     The  appointment  soon  followed. 

The  Judge  was  permanently  separated  from 
his  mother  by  the  War  of  the  Rebellion.  Ik- 
was  a  Republican  child  of  a  slave-lir.Uling 
mother.  The  latter,  in  1856,  '  returned  from 
Illinois    to    her    native    county.    Caldwell,    in 


North  Carolina,  where  she  had  an  inheritance. 
During  the  war,  Judge  Morrow,  while  in 
Washington,  endeavored  to  get  his  mother 
through  the  military  lines,  and  obtained  a  spe- 
cial pass  from  President  Lincoln.  This  paper 
was  sent  under  a  flag  of  truce  to  the  Confed- 
erate authorities,  but  the  lady  never  received 
it.  After  being  subjected  to  great  vexation 
and  hardship  in  Richmond,  she  was  compelled 
to  return  home  and  Judge  Morrow  never  saw 
her  again.  In  1875  he  visited  her  grave  and 
erected  a  monument  to  her  memory.  The  man 
who  drove  him  from  the  railroad  to  the  little 
town  where  she  had  lived  referred  him  to  a 
distinguished  darky  as  knowing  all  about 
his  maternal  relatives.  This  ex-contraband 
had  l)een  elevated  to  the  bench,  was  a  leading 
citizen  and  not  without  hopes  of  an  election 
to  congress.  On  being  introduced  to  Judge 
Morrow,  he  said,  "Why.  I  used  to  belong  to 
you."  "Were  you  one  of  my  mother's  slaves  ?" 
asked  Judge  Morrow.  "Yes.  sah."  said  the 
citizen. 

The  old  lady  bad  by  her  last  will  and  testa- 
ment left  her  negroes  to  her  Republican  anti- 
slavery  son.  It  was  like  putting  "a  barren 
scepter   in   his   gripe." 

We  took  occasion  when  Judge  Morrow  was- 
at  the  bar  to  refer  to  him  as  follows: 

He  is  a  man  of  large  stature,  superb,  sinewy 
frame,  and  robust  health.     He  is  scrupulously 
neat  in  dress,  methodical  in  his  plans  and  hab- 
its,   simple    in    his    tastes,   and    stainless    in    his 
private  life.     His  personal  acquaintance  is  very 
extended,  and  he  enjoys  popularity  to  a  degree 
of    which    few    men    can    boast.      In    preparing 
and    trying    a    case    he    is    i)ainstaking.    ])atient 
and  thorough;  in  argument,  plausible  and  full; 
in    speech,   facile   and   correct.     He   invariably 
wins   the   respect   of   court   and   jury,    for   the 
sincerity  of  his  motives  is  always  conspicuous. 
He   rarely   takes   up   the   weapons   of   wit.   in- 
vective or  satire,  but  "speaks  forth  the  words 
of  truth  and  soberness"  effectively  and  to  the 
l)oint.     His   "staying"   qualities  are   good,   and 
when  occasion  calls  for  the  effort,  he  can  hold 
the  floor,  and  show  his  right   to  it.  for  hours 
at  a  time,  as  in  the  case  of  Salvador.     He  is 
entirely   void  of  affectation,   and  eschews   "ad 
captaiulum."      lie   is   a  iilain.  ])rudent.  earnest, 
resolute   man.    a    fme   type    of    .\merican   char- 
acter— sij)is  pcur  ct  sans  rcproche. 

Judge  Morrow  married  in  1865,  at  Santa 
Rosa,  Miss  Maggie  Hulbert.  daughter  of  a 
Methodist  clergyman  of  that  place,  and  has 
two  sons  and  a  daughter. 


History  of  the  Bench  and  Bar  of  California. 


657 


ERSKINE  M.  ROSS. 

Erskine  M.  Ross  of  Los  Angeles,  United 
States  Circuit  Judge  since  1895,  was  born  in 
Culpepper  county.  Virginia.  June  30.  1845,  the 
son  of  a  planter.  He  attended  school  in  his 
native  county,  and  afterwards  at  the  Virginia 
Military  Institute  at  Lexington.  At  the  age 
bf  ten,  he  entered  a  military  school  at  Cul- 
pepper Court  House,  where  he  was  a  pupil 
for  about  five  years,  or  until  the  summer  of 
i860,  when  he  became  a  cadet  in  the  Military 
Institute.  This  school  was  modeled  after 
West  Point.  The  Civil  \\  ar  breaking  out  in 
the  following  spring,  young  Ross,  who  was  not 
old  enough  to  be  mustered  in  the  army,  acted 
as  lieutenant  in  various  commands,  and  was 
in  several  battles  on  the  Confederate  side.     In 

1863.  in  the  middle  of  the  war,  he  returned 
to   the    institute    to   gratify    his    father,    but    in 

1864.  the  corps  of  cadets  was  ordered  out,  and 
took  part  in  the  battle  of  New  Market,  losing 
fifty-five  of  their  number  in  killed  and 
wounded,  out  of  190  in  the  corps.  The  war 
closed,  young  Ross  went  back  to  the  institute, 
and  was  graduated  in  1865.  He  came  to 
California  in  1S68,  and  settled  in  Los  An- 
geles, where  resided  his  uncle,  Hon.  Cameron 
E.  Thorn,  who  had  been  State  senator  at  the 
sessions  of  1858  and  1859,  and  was  a  promi- 
nent lawyer.  The  young  Virginian  entered 
his  uncle's  office  and  studied  law  with  great 
zeal  for  two  years,  when  the  old  District  Court 
admitted  him  to  practice.  It  was  not  until 
April,  1875,  tiiat  lie  was  admitted  to  the  bar 
of  the  Stale  Supreme  Court,  but  the  interven- 
ing period  was  spent  in  profitable  practice  in 
the  local  tribunals  in  partnership  with  Mr. 
Thom.  Their  business  was  of  a  general  char- 
acter, including  land  suits  of  magnitude.  The 
junior  partner  improved  his  opportunities,  was 
diligent  in  business,  and  was  rewarded  with 
professional  fame  and  financial  prosperity  at 
an  exceptionally  early  age. 

The  big  law  fees  come  late  in  life,  as  a  rule. 
They  come  from  millionaires  and  great  corpo- 
rations, who  have  vast  interests  at  stake — who 
demand  the  best  service  of  experienced  men. 
It  is  seldom  a  lawyer  acquires  wealth  at  an 
early  age.  Judge  Ross  furnishes  an  exception 
to  the  rule. 

At  the  first  election  under  the  present  State 
constitution  Judge  Ross  was  chosen,  on  the 
Democratic  ticket,  a  Justice  of  the  Supreme 
Court.  His  age  was  then  thirty-four  years, 
and   he   had   not    passed   the    usual    ordeal    of 


probation  upon  inferior  benches — indeed,  had 
not  held  an  office  of  any  kind.  He  stepped 
from  the  ranks  of  the  profession  to  that  high 
judicial  station.  Upon  the  organization  of 
tlie  new  Supreme  Court  he  drew  a  three  years' 
term.  In  November,  1882,  he  was  elected  for 
a  full  term  of  twelve  years.  On  October  i, 
1886,  he  resigned  the  office,  and  on  January 
13.  1887,  he  was  commissioned  by  President 
Cleveland  United  States  District  Judge  for  the 
southern  district  of  California.  He  qualified 
on  the  5th  of  the  following  month.  He  con- 
tinued in  that  office  until  he  took  the  bench 
as  L'nited  States  Circuit  Judge  of  the  same 
district,  to  which  he  was  also  appointed  by 
President  Cleveland  in  the  latter's  second  term. 
His  commission  as  United  States  Judge  was 
dated  February  22.  1895,  and  he  qualified  on 
March  5  following. 

Personally,  Judge  Ross  is  under  the  average 
height ;  he  looks  younger  than  he  is,  although 
he  has  hardly  passed  his  prime.  He  is  a 
studious,  reflective  man,  with  some  reserve, 
yet  of  polished  address.  The  bar  entertains 
the  highest  regard  for  him  as  a  man  and  as 
a  jurist.  His  written  opinions  evince  good 
ability,  excellent  powers  of  expression,  a  clear 
head,  and  the  true  judicial  temper.  His  en- 
lightened firmness  in  the  discharge  of  judicial 
dut}'  and  responsibility  was  well  evidenced 
during  the  great  railroad  strikes  of  1894.  He 
is  a  member  of  the  Episcopal  church.  He  is  a 
man  of  family,  having  married  Miss  Ynez 
Bcltis.  of  Los  Angeles,  in  1874.  Their  son, 
Robert  Erskine  Ross,  was  born  March  30, 
1875.  He  owns  a  fine  residence  in  that  city, 
and  one  of  the  largest  and  most  profitable 
orange  orchards  in  the  State. 

The  Judge  established  his  place,  Rossmoyne. 
on  the  San  Rafael  Rancho,  in  Los  Angeles 
county,  about  the  year  1877.  He  cleared  the 
land  and  planted  an  orange  orchard,  covering 
seventy  acres.  He  also  planted  about  eighteen 
acres  in  olives,  and  some  lemons.  It  has  be- 
come a  very  beautiful  place,  of  bountiful  yield. 


OLI.V  WELLBORN. 

The  Judge  of  liie  United  Stales  District 
Court  for  the  southern  district  of  California 
w.is  I)oni  ,it  ("uiiiiniiig,  Georgia,  June  18,  1843. 
lie  was  educated  at  Emory  College,  in  that 
st.ite,  and  the  University  of  North  Carolina. 
Wiien  the  Civil  War  broke  out  he  was  eighteen 
years  old,  and  enlisted  in  the  Confederate  army 
as  a  private.  During  the  conflict  he  was  pro- 
moled   to  lieulenant,  and  then   to  captain.     In 


658 


History  of  the  Bench  and  Bar  of  California. 


1865  he  was  admitted  to  the  bar  at  Atlanta, 
Georgia,  and  practiced  there  until  1869.  He 
then  removed  to  Dallas,  Texas,  where  he  fol- 
lowed law  practice.  He  represented  the  Dallas 
district  in  the  national  house  of  representatives, 
as  a  Democrat,  for  four  successive  terms,  or 
eight  years. 

Having  removed  to  San  Diego.  California. 
at  the  end  of  his  service  in  congress,  he  prac- 
ticed law  there  until  1893.  He  then  settled 
permanentl}'  at  Los  Angeles.  President  Cleve- 
land appointed  him  to  his  present  high  office 
on  March  i.  1895.  Besides  his  legal  attain- 
ments and  judicial  and  legislative  experience. 
Judge  Wellborn  is  a  very  effective  and  enter- 
taining speaker.  He  is  fluent  and  full  of  anec- 
dote. He  spoke  on  the  stump  for  his  party 
in  California  in  the  Presidential  campaign  of 
1888.  He  has  a  wife,  two  sons  and  two  daugh- 
ters  and  owns  his  home  in  Los  Angeles. 


J.  J.  de  haven. 

John  Jefferson  De  Haven.  United  States 
Judge  for  the  northern  district  of  California 
since  June  8,  1897,  was  born  at  St.  Joseph,  Mis- 
souri, March  12,  1845.  He  was  brought  to 
California  in  infancy  (1849).  He  grew  to 
manhood  in  Eureka,  attending  the  public 
schools,  and  w^as  admitted  to  the  bar  in  1866 
In  the  next  year,  at  the  age  of  twenty-two 
he  was  elected  district  attorney  of  Humboldt 
county,  and  served  the  term  of  two  years. 
He  represented  his  county  in  the  assembly  at 


the  eighteenth  session— December  6,  1869,  to 
April  4,  1870,  being  one  of  twelve  Republicans 
in  a  body  of  eighty  members.  In  the  middle 
of  the  session  he  was  added  to  the  judiciary 
committee  on  motion  of  the  Democratic  chair- 
man, Joseph  Naphtaly,  of  San  Francisco.  He 
was  in  the  State  senate  at  tlie  next  two  ses- 
sions, 1871-75. 

Judge  De  Haven's  public  service  has  had 
little  interruption  since  he  reached  man's  es- 
tate. In  1878-80  he  was  city  attorney  of  Eu- 
reka. In  1882  he  ran  for  congress  the  first 
time,  and  was  defeated.  For  the  period  of 
1884-89,  inclusive,  he  was  Superior  Judge  of 
Humboldt  county.  He  was  elected  as  a  Re- 
publican to  coneress  from  the  first  district  in 
1888,  his  term  being  from  March  4.  1889,  to 
March  4,  1891,  but  he  resigned  in  the  fall  of 
1890  to  accept  the  Republican  nomination  for 
Associate  Justice  of  the  Supreme  Court  for 
an  unexpired  term  of  four  years.  He  was 
elected,  and  at  the  end  of  four  years,  in  1895, 
fixed  his  residence  at  San  Francisco,  resum- 
ing the  practice  of  law  in  partnership  with  S. 
C.  Denson,  once  Superior  Judge  of  Sacra- 
mento county. 

On  June  8.  1897.  Judge  De  Haven  became. 
by  appointment  of  President  McKinley,  Judge 
of  the  United  States  Court  for  the  northern 
district  of  this  State.  He  took  his  seat  on 
that  bench  on  June  17  of  that  year.  The 
Judge  is  a  man  of  family,  having  married  Miss 
Zemah  Jane  Ball  on  June  24.   1872. 


CHIEF  JUSTICE  BEATTY. 

The  distinguished  Chief  Justice  of  the  Cali- 
fornia Supreme  Court  was  born  at  Monclova, 
Lucas  county.  Ohio,  on  the  i8th  of  February, 
1838.  Although  born  in  Ohio,  he  has  always 
considered  himself  properly  a  native  of  Ken- 
tucky, because  his  father  was  a  citi/en  of 
Kentucky,  and  he  was  taken  to  that  state  at 
a  very  early  age,  and  resided  there  until  he 
was  fifteen  years  old,  when  he  followed  his 
father  to  California.  He  arrived  in  Califor- 
nia in  March.  1853.  and  lived  in  Sacramento 
until  1855,  when  he  returned  to  the  eastern 
states,  attended  a  preparatory  academy  for  a 
year,   and   then   spent   two   years   at    the   L^ni- 


versity  of  Virginia,  during  the  sessions  of 
1856-57  and  1857-58.  In  September.  1858.  he 
returned  to  Sacramento,  California,  studied 
law  in  his  father's  office,  and  was  admitted 
to  practice  in  the  Supreme  Court  of  Califor- 
nia, at  the  January  term,  1861.  In  the  spring 
of  1863  he  went  to  Lander  county,  in  eastern 
Nevada.  When  Nevada  was  admitted  to  the 
Union  as  a  state,  in  1864.  he  became  Judge 
of  the  District  Court  in  Lander  count}',  and 
held  that  office  under  successive  re-elections  in 
Lander  and  White  Pine  counties,  until  the 
1st  of  January,  1875.  when  he  liecamc  an 
Associate  Justice  of  the  Supreme  Court  of 
Nevada,  holding  that  office  from  1875  to  1878, 
inclusive,  and  the  office  of  Chief  Justice  during 


History  of  the  Bench  and  Bar  of  California. 


659 


the  years  1879  and  1880.  He  was  rc-nominated, 
but  was  defeated  for  re-election.  At  the  close 
of  his  term  he  took  up  his  residence  in  Sac- 
ramento, practicing  law  there  until  January, 
1889,  when  he  became  Chief  Justice  of  the 
Supreme  Court  of  California,  being  elected  to 
fill  the  balance  of  the  unexpired  term  of  Chief 
Justice  Morrison.  He  was  re-elected  in  1890 
and  holds  the  office  at  present  under  that 
election.  His  term  will  expire  in  January, 
1903. 

During  the  time  that  Judge  Beatty  was  Dis- 
trict Judge  in  Nevada  a  great  many  cases  were 
tried  before  him,  the  most  important  of  which 
were  minine  cases.  The  only  two  of  any  es- 
pecial importance  were  the  two  cases  known 
as  the  Eberhardt  case,  tried  at  Austin,  in 
1868,  and  the  Kentucky  vs.  the  Raymond  & 
Ely  case,  tried  at  Pioche,  in  September  and 
October,  1873.  These  cases  were  miportant 
on  account  of  the  great  value  of  the  property 
involved,  and  the  eminence  of  counsel  en- 
gaged on  either  side,  as  well  as  the  time  con- 
sumed in  the  trials  and  the  distinguished  rep- 
utation of  the  experts  who  testified,  but  the 
cases  otherwise  presented  no  features  that 
were  not  common  to  many  others  of  less  im- 
portance. Probably,  as  the  books  run,  the 
Chief  Justice  never  tried  any  case  that  could 
be  properly  denominated  a  cause  celehrc. 

During  the  time  he  occupied  the  District 
bench  of  Nevada  there  was  an  immense 
amount  of  litigation  in  the  District  Courts  of 
Lander  and  White  Pine  counties,  upwards  of 
six  thousand  cases  going  to  judgment  during 
the  ten  years  he  was  on  the  bench,  of  which 
probably  about  one-third  were  contested  cases. 
There  were  about  one  hundred  and  twenty 
appeals  to  the  Supreme  Court  from  the  judg- 
ments of  the  Chief  Justice,  and  he  was  re- 
versed about  thirty-five  times. 

As  exemplifying  llic  (|ualily  of  llie  Chief 
Justice  as  an  exponent  of  legal  science,  per- 
haps the  case  of  Havemeyer  vs.  Superior 
Coiu-t,  etc.,  is  t(i  he  puiiUid  lo  above  many 
others  wliich  bear  the  peculiar  impress  of  his 
genius.  The  case  is  reported  in  84  Cal.  351. 
It  grew  out  of  the  suit  of  the  Stale  against 
the  American  Sugar  Refining  Company.  It 
was  tried  in  tlie  Superior  Court  of  San  Fran- 
cisco, Hon.  William  T.  Wallace  hearing  and 
deciding  it.  Tlu-  iudiinu'iit  declared  a  for- 
feiture of  tile  (lefendanl  ci iin])a!iy's  corporate 
francliise,  and  imposed  the  statutory  penalty 
of  $5,000.  .\n  anneal  was  taken.  ;i  "slay-hnnd" 
of  $12,000   lieing   given.      Not wilhstaiiding   the 


appeal,  an  application  was  made  by  the  other 
side  for  the  appointment  of  a  receiver.  Judge 
Wallace  appointed  such  receiver,  in  the  per- 
son of  the  respected  and  able  lawyer,  since 
deceased,  Patrick  Reddy;  and  directed  the  lat- 
ter to  take  possession  of  the  defendant's  prop- 
erty, especially  mentioning  in  his  order  cer- 
tain premises  as  part  of  such  property. 

Havemeyer  and  others  claimed  to  have  pur- 
chased and  taken  into  possession  the  very 
property  so  specifically  mentioned  in  Judge 
Wallace's  order.  They  petitioned  the  Judge  to 
rescind  his  order,  and  to  direct  his  receiver 
to  proceed  by  action  to  recover  the  specified 
proijorty,  in  case  he  believed  it  to  be  the  prop- 
erty of  the  corporation  and  subject  to  the 
jurisdiction  of  the  court  in  the  main  action. 

Judge  Wallace  denied  their  application,  and 
they  prayed  the  Supreme  Court  for  a  writ  of 
prohibition  against  the  Superior  Court,  Judge 
Wallace,  and  Receiver  Reddy.  This  matter 
in  the  Supreme  Court  was  ably  and  learnedly 
argued  by  counsel  on  both  sides.  Judge  Wal- 
lace himself  appeared  and  made  an  argument 
—a  motion  having  been  pressed  to  punish  him 
and  Receiver  Reddy  for  contempt  in  disre- 
garding the  alternative  writ  of  prohibiton  is- 
sued by  the  Sui)renie  Court,  which  motion  and 
the  application  for  a  peremptory  writ  of  prohi- 
bition were  heard  at  the  same  time. 

Chief  Justice  Beatty  delivered  the  opinion 
of  the  court.  It  was  concurred  in  by  five 
other  justices — all  who  had  taken  any  part 
in  the  hearing  of  the  case.  For  clear  state- 
ment of  facts  and  the  legal  propositions  in- 
volved, the  opinion  is  a  model.  It  is  an  ex- 
haustive discussion  of  the  principles  of  law 
and  the  statutes  and  decisions  bearing  upon  the 
rights  and  obligations  of  stockholders  in  cor- 
porations, in  eases  of  this  kind;  the  jiower 
of  the  court  to  appoint  a  receiver  in  the  case 
at  l)ar,  and  the  attempt  of  Judge  Wallace  lo 
dispose  sunnnarily  of  the  ))roperty  claimed 
by  the  petitioner,  in  ,1  suit  to  which  they 
were   not   parlies. 

The  decision  was  th.it  the  lower  court  had 
no  ])ower  to  ;ii)i)oint  a  receiver  in  that  ease. 
that  its  order  ii.imiiig  Mr.  Reddy  receiver 
was  void,  and  ih.it  the  elYort  to  deprive  pe- 
titioners of  the  property  in  dispute,  of  which 
tin y  were  in  jjossession.  claiming  to  own.  was 
in  violation  of  constitutional  rights,  because 
it  would  have  been  depriving  them  of  prop- 
erty without   i\\\ii  process  of  law. 

Ineideiit.il  (piestions  of  procedure  were  han- 
dled  ill   .1   masterly  manner   in  this  opinion  of 


660 


History  of  the  Bench  and  Bar  of  California. 


the  Chief  Justice,  as  well  as  the  suggestions 
presented  by  the  respotidents.  that  the  peti- 
tioners were  "bad  men,"  and  therefore  should 
be  denied  the  equal  protection  of  the  laws. 
Upon  the  question  of  contempt  the  decision 
of  the  court  was  against  Judge  Wallace  and 
his  receiver.  A  nominal  fine  of  $io  was  im- 
posed upon  each,  it  being  recognized  that  the 
"offenders."  in  their  violation  of  the  order 
of  the  court,  had  acted  in   "good   faith." 

This  was  a  case,  it  seems  in  which  ignor- 
anfia  legis  excusat. 

We  recall  a  discussion  which  we  had  over 
this  able  judicial  paper  and  its  author,  with 
that  observant  and  critical  mind  of  the  San 
Francisco  bar,  Mr.  Henry  H.  Reid.  "The 
opinions  of  Chief  Justice  Beatty,"  said  Mr. 
Reid,  "are  in  general  characterized  by  clear 
statement  and  cogent  reasoning  from  legal 
rules  and  adjudicated  cases.  They  command 
the  respect  of  those  who  are  compelled,  some- 
times, to  dissent  from  the  conclusions  drawn. 
Among  the  best  examples  of  Judge  Beatty's 
capacity  for  lucid  statement  of  facts,  and  of 
legal  exposition  is  his  opinion  in  the  case  of 
Fox  V.  Hale  &  Norcross  Silver  Mining  Com- 
pany, io8  Cal.  369.  His  description  of  mining 
processes  is  a  delight  to  the  reader,  who  has 
a  general  knowledge  of  the  subject,  but  who 
is  yet  not  an  'expert'  in  that  line ;  while  his 
statement  and  application  of  the  law  have 
been  questioned  only  by  those  whose  misfor- 
tune it  has  been  to  be  on  the  losing  side." 

On  the  subject  of  our  mining  laws  and  cus- 
toms, the  Chief  Justice  is  frequently  referred 
to,  and  quoted,  by  Judge  Davis  in  his  elaborate 
article  in  this  History. 

In  the  summer  of  1897.  the  San  Francisco 
Examiner  interviewed  many  public,  and  public- 
spirited,  men,  on  the  subject  of  their  boyhood 
days,  and  as  to  wliat  lingered  in  memory  as 
the  principal  charm  of  their  childhood — that 
was  the  idea,  we  forget  the  journal's  phrase- 
ology. On  this  head  see  the  sketch  of  General 
Barnes.  Chief  Justice  Beatty's  response,  which 
we  pigeon-holed  at  the  time,  was  as  follows: 

"When  I  was  a  boy  I  lived  in  the  country 
and  liked  hunting  and  fishing  better  than  any- 
thing else.  To  do  one  or  the  other  was  by 
long  odds  my  first  choice  whenever  I  had  a 
whole  day,  or  even  a  part  of  a  day  to  myself. 
li  for  any  reason  fishing  and  hunting  were  both 
out  of  the  question  (on  account  of  bad  weather 
or  a  crippled  gun,  or  exhausted  ammunition), 
I  cannot  remember  any  other  sport  or  occupa- 
tion that  was  a  second  choice.  It  was  anything 
to  get  through  the  day,  and  generally  it  was 


a  dull  day  at  the  best.  This  statement  should 
be  qualified  by  saying  that  it  relates  to  ordinary 
times,  and  does  not  embrace  those  rare  occa- 
sions wlien  the  circus  or  traveling  menagerie 
came  to  town.  Then,  of  course,  the  thing  was 
to  go  out  on  the  road  to  meet  the  circus,  escort 
it  into  town,  superintend  the  erection  of  the 
teiU,  go  to  the  afternoon  performance,  and,  if 
the  necessary  financial  arrangements  could  be 
effected,  to  take  in  the  evening  performance 
also." 


JACKSON  TEMPLE. 


Jackson  Temple,  a  long-ago  Justice  of  the 
Supreme  Court,  and  now  a  member  of  that 
tribunal,  was  born  in  Franklin  county,  Mas- 
sachusetts, August  II.  1827.  He  was  a  farm- 
er's son;  attended  the  common  schools  of 
Berkshire  county,  and  at  the  age  of  nineteen 
entered  Williams  College,  from  which  he  was 
graduated  in  due  time.  He  then  located  a: 
Newark,  New  Jersey,  where  he  took  up  the 
study  of  law  in  the  office  of  Judge  White- 
head. He  turned  away  from  it  for  a  period 
to  take  charge  of  a  Latin  and  grammar  class 
in  Monmouth  county.  His  preparation  for  the 
bar  was  resumed  and  completed  in  the  law 
school  at  New  Haven,  Conn. 

Judge  Temple  came  to  California  in  1853, 
arriving  at  San  Francisco,  by  way  of  Panama, 
on  April  15.  After  a  stay  of  about  six  months 
in  the  city,  and  a  year  passed  on  the  farm  of 
a  brother,  near  Vallejo,  he  commenced  the 
practice  of  law  in  Petaluma,  early  in  1855. 
Removing  to  Santa  Rosa  when  that  place 
became  the  county  seat,  he  formed  a  partner- 
ship with  Judge  William  Ross,  wh/ch  lasted 
about  two  years.  Tlien.  in  1857,  he  l)ccame 
associated  with  the  most  brilliant  man  who 
has  ever  belonged  to  the  Sonoma  bar.  rec- 
ognized as  a  wit  and  genius  by  all  who  met 
him — Charles  P.  Wilkins,  now  many  years  de- 
ceased. After  the  latter's  death  he  united  with 
Judge  A.  Thomas.  The  firm  of  Temple  & 
Thomas  was  the  leading  one  of  that  section, 
and  did  a  flourishing  business  for  seven  years. 

In  1867,  when  Henry  H.  Haight  was  urged 
to  accept  the  Democratic  nomination  for  Gov- 
ernor, he  had  a  most  valuable  practice  at  the 
San  Francisco  bar,  and  was  carrying  weighty 
business  responsibilities.  He  telegraphed  to 
Jackson  Temple  at  Santa  Rosa,  asking  him 
to  remove  to  San  Francisco  and  take  his  busi- 
ness in   hand.     A   favorable  response  induced 


History  of  the  Bench  and  Bar  of  California. 


061 


the  San  Francisco  lawyer  to  accept  the  nomi- 
nation for  Governor,  unanimously  tendered 
him.  He  was  elected  and  inaugurated  Gov- 
ernor, and  his  law  business  went  on  as  usual 
in  Judge  Temple's  charge.  In  the  middle  of 
the  Governor's  term  a  vacancy  occurred  on 
the  Supreme  bench,  and  he  had  the  pleasure 
of  tendering  the  distinguished  station  to  the 
gentleman  whom  he  believed  to  be  the  safest 
counsellor    of   the    California   bar. 

The  vacancy  was  occasioned  by  the  resig- 
nation of  Hon.  S.  W.  Sanderson,  in  January, 
1870. 

Judge  Temple  was  on  the  Supreme  bench 
at  that  time  for  two  years.  He  left  his  seat, 
and  Governor  Haight's  term  ended,  at  the 
same  moment.  Quite  in  accord  with  the  fit- 
ness of  things,  the  two  bar  leaders  resumed 
law  practice  in  partnership.  After  three  years 
Judge  Temple  returned  to  Santa  Rosa.  One 
year  later,  in  March.  1876,  he  was  appointed 
by  Governor  William  Irwin,  Democrat,  Judge 
of  the  Twenty-second  Judicial  district,  which 
district  had  just  been  formed  from  the  coun- 
ties of  Sonoma,  Mendocino  and  Marin.  Serv- 
ing two  years,  he  was  elected  for  a  full  term 
of  six  years,  and  held  the  office  until  the  new 
constitution  took  effect.  At  the  first  election 
under  that  instrument  he  was  chosen  the  Su- 
perior Judge  of  Sonoma  county  by  a  unan- 
imous vote — the  Republicans  putting  no  can- 
didate  in   the   field. 

On  October  i,  1886.  Hon.  E.  M.  Ross  re- 
signed from  the  Supreme  bench,  and  at  the 
general  election  in  the  next  month,  Judge 
Temple  was  chosen  in  fill  out  the  unexpired 
term  of  eight  years.  He  resigned  the  place 
on  Juno  2^.  1889.  He  shortly  afterwards  ac- 
cepted an  appointment  as  one  of  the  Supreme 
Court  Conmiissioners,  and  served  as  such 
irom  1890  to  the  beginning  of  1895.  when  he 
again  took  a  seat  on  our  highest  bench.  He 
was  elected  for  a  full  term  of  twelve  years, 
which  will  expire  in  the  first  week  of  January, 
1907.  He  will  then  lie  in  his  eightielli  year. 
The  editor  of  this  History  look  occasion  to 
observe  of  Judge  Temple,  as  long  ago  as 
August.  1882,  that  "his  place  and  destiny  are 
on  the  bench.  He  is  there  now,  and  he  will 
die  in  judicial  harness.  He  has  a  secure  Imld 
on  the  popular  heart.  His  opinions  reveal  a 
calm  temper  and  a  logical  mind,  and  i)alieiU 
and  severe  thought.  He  is  a  man  of  wide 
culture,  and  disciplined  in  other  sciences  as 
in  law." 


The  Judge  has  a  large  family.  He  mar- 
ried Miss  Christie  Hood  of  Sonoma  county,  in 
1870.  During  his  first  term  on  our  highest 
bench,  in  examining  a  large  class  for  admis- 
sion to  the  bar,  Judge  Temple  stated  a  case 
and  asked  each  of  the  candidates  in  turn  how 
he  would  decide  it.  Each  of  them  made  an- 
swer, some  with  admirable  promptness,  when, 
with  a  twinkle  in  his  eye,  he  informed  them 
that  the  point  in  question  was  then  pending 
before  the  Supreme  Court. 


THOMAS  B.  McFARLAND. 

Thomas  Bard  McFarland  was  born  in  Mer- 
cerberg.  Franklin  county,  Pennsylvania,  and 
is  a  graduate  of  Marshall  College,  then  lo- 
cated at  Mercerberg.  He  studied  law  at  Cham- 
bersberg,  the  county  seat  of  Franklin  county, 
with  Robert  M.  Bard,  a  distinguished  lawyer, 
who  was  a  near  relative  and  the  father  of 
our  California  Senator.  Thomas  R.  Bard,  and 
was  admitted  to  the  bar  in  November,  1849, 
by  the  celebrated  Jeremiah  S.  Black,  who  wal 
then  judge  of  the  judicial  district  which  in- 
cluded Franklin  county.  Immediately  after- 
wards he  commenced  preparations  for  cross- 
mg  the  plains  to  California,  and  arrived  here 
in  September,  1850.  He  followed  the  vocation 
of  a  working  miner  for  over  three  years,  and 
in  the  winter  of  1853-4  began  the  practice  of 
law  in  Nevada  City.  Nevada  county.  Cal.  in 
1861  he  was  elected  judge  of  the  Fourteenth 
Judicial  District,  then  composed  of  Nevada 
county  alone.  In  the  same  year  he  was  mar- 
ried to  Miss  Susie  Briggs,  a  native  of  New 
York,  and  sister  of  Mrs.  Hunt,  wife  of  Dr. 
R.  M.  Hunt,  of  Nevada  City.  There  was  only 
one  child  of  tlic  marriage.  Miss  Jennie  H. 
McFarland.  All  of  the  family  are  living  to- 
gellur  in  San  Francisco.  In  1863.  mider  a 
constitutional  amendment.  Placer  cnunty  was 
l>nt  into  the  Fourteenth  District,  and  he  was 
again  elected  judge  of  that  di.stricl.  .At  the 
end  of  his  second  term,  in  1870,  he  removed 
to  Sacramento  City  and  practiced  law  there 
for  alxnU  a  dozen  years,  and  during  a  part 
of  iliat  time  was  also  register  of  the  I'nitcd 
Slates  land  office.  He  was  also  elected  a 
member  of  the  constitutional  convention,  which 
formulated  the  present  constitution  of  the 
State,  and  served  as  such.  As  a  member  of 
the   conventii)n    lie    voted    against    must    of   its 


662 


History  of  the  Bench  and  Bar  of  California. 


provisions,  and  afterwards  opposed  its  adop- 
tion by  the  people.  In  1882  he  was  appointed 
by  G6vernor  Perkins  Judge  of  the  Superior 
Court  of  Sacramento  county ;  and  in  1884  he 
was  nominated  by  acclamation  for  the  ensuing 
term  and  elected  by  a  very  large  majority.  In 
1886  he  was  nominated  by  the  State  Republican 
Convention  for  Justice  of  the  Supreme  Court, 
and  was  elected.  Having  served  a  full  term 
of  twelve  years  he  was,  in  1898,  nominated 
and  elected  for  another  term  of  twelve  years, 
which  he  is  now  filling. 

Judge  McFarland  followed,  when  a  young 
man,  the  old  Whig  school  of  politics,  but  since 
the  first  election  of  Lincoln  has  been  an  un- 
wavering and  persistent  Repnlilican.  With 
respect  to  the  judicial  decisions  in  which  he 
has  participated,  and  the  opinions  which  he 
has  written,  it  may  be  said  that  they  embrace 
all  the  manifold  subjects  of  litigation  in  Cali- 
fornia, and  that  he  has  probably  taken  part 
in  as  many  decisions  as  any  other  California 
judge.  He  has  done  a  great  deal  of  hard  work 
on  the  bencli — he  has  devoted  practically  liis 
whole  life  to  it.  His  numerous  opinions,  con- 
tained in  the  California  Reports,  from  volume 
70  to  volume  1226  thus  far,  have  the  concur- 
rence of  the  bar  generally.  He  has  also  de 
livered  addresses  and  written  literary  papers 
which  have  been  well  rceived — as,  for  instance, 
his  remarks  from  the  bench  on  the  death  of 
ex-Supreme  Judge  A.  C.  Niles,  published  at 
the  end  of  volume  82  of  the  Reports.  His 
remarks  before  the  Howard  Club  of  San  Fran- 
cisco at  the  annual  banquet  of  November  9, 
1900,  in  response  to  tlie  tlunic  "Reminiscences 
of  College  Days,"  elicited  ajjplauM'.  ami  many 
parts  were  received  with  much  laughter.  They 
are  in  print  for  private  circulation. 


RALPH  C.  HARRISON. 

Ralph  C.  Harrison,  Justice  of  the  Supreme 
Ct)tn'l,  was  a  teacher  of  mathematics  in  Ar- 
menia Seminary,  New  York,  in  1853,  and  a 
teacher  of  ancient  languages  and  rhetoric  in 
the  same  institution,  1854-56.  He  was  a  mem- 
ber of  the  Connecticut  legislature  in  1857.  He 
studied  law  in  the  Albany  Law  School,  1858- 
59,  and  was  admitted  to  the  bar  of  the  New 
York  Supreme  Court  in  1859. 

He  practiced  law-  in  San  Francisco  from 
i860  to  January,  1891,  when  he  became  a  Jus- 
tice I  if  the  State  Supreme  Court,  having  been 
i-lected  as  a  Republican  for  the  term  of  twelve 
years.  He  first  registered  as  a  voter  in  San 
P'rancisco  on  June  2,  1866,  as  a  native  of  Con- 
necticut, then  aged  34  years. 

W'lien  he  went  to  the  Supreme  bench  in  Jan- 
uary, ib>'9i,  he  had  been  in  partnership  with 
John  R.  Jarboe  since  1867,  for  the  last  five 
years  of  wiiich  period  W.  S.  Goodfellow  was  a 
member  of  the  firm.  Right  after  his  arrival 
in  San  Francisco  he  formed  a  law  partnership 
witii  General  David  D.  Colton,  which  con- 
tinued until  he  joined  Mr.  Jarboe.  His  term 
as  Supreme  Judge  will  expire  in  January, 
1903. 

.\t  the  liar  Judge  Harrison  was  noted  for  his 
close  application  to  his  business.  He  was 
hard-working  and  painstaking.  He  impressed 
all  with  his  clearness  of  mind,  his  knowledge, 
accuracy  and  fairness.  For  legal  acumen,  lucid 
statement,  and  understanding  of  both  the  facts 
of  a  case  and  the  principles  governing  it,  he 
liad  few  e((uals.  He  was  of  high  character 
professionally  and  personally.  A  considerable 
fortune  is  tlie  result  of  his  practice.  He  has 
proven  a  very  learned  and  industrious  Judge. 
He  has  been  twice  married,  losing  his  first  wife 
many  years  ago.  The  present  Mrs.  Harrison 
is  a  niece  of  Hon.  Whitelaw  Reid,  the  eminent 
journalist  and  statesman  of  New  York. 


\\ 


A.  C.  ADAMS. 
Amos  Crandall  Adams  of  San  Francisco, 
one  of  the  survivors  of  the  old  district  bench, 
was  born  in  Pennsylvania,  March  3rd,  1824. 
He  is  eighth  in  descent  from  John  of  Cam- 
bridge, 1650,  (said  to  be  VI  John,  son  of 
Henry  of  Braintree).  His  parents  were  Jonas 
Russell  and  Olivia  (Seeley)  Adams.  He  re- 
moved with  the  rest  of  the  family  in  1836 
to    Downer's    Grove,    111. ;    returned    to    Penn- 


sylvania, and  entered  Franklin  Institute  at 
Hartford  and  afterwards  read  law  in  Chicago, 
111.,  with  Spring  &  Goodrich.  He  was  ad- 
mitted to  the  bar  in  1848.  He  came  to  Cali- 
fornia in  1850  and  engaged  in  mining,  trad- 
ing, etc.,  until  1854,  when  he  resumed  the  prac- 
tice of  his  profession  at  Mokelumnc  Hill,  Cala- 
veras county.  In  January,  1869,  he  was  ap- 
pointed by  Governor  H.  H.  Haight,  District 
Judge    of    the    then    eleventh    judicial    district 


History  of  the  Bench  and  Bar  of  California. 


663 


court  (embracing  the  counties  of  Eldorado, 
Amador  and  Calaveras)  to  fill  the  unexpired 
term  of  Hon.  S.  W.  Rrockway,  resigned.  In 
October  following,  he  was  elected  to  a  full 
term  of  six  3'ears,  and  at  the  expiration  there- 
of removed  to  San  Francisco,  and  again  re- 
sumed practice,  still  continuing  the  same  in 
partnership  with  his  son  under  the  firm  name 
of  Adams  &  Adams.  He  married  Miss  Arvilla 
Aldrich  in  1851,  and,  after  her  death,  Mrs. 
Regina  Kraft,  January  21st.  i8()6.  lie  is  of 
Democratic  politics. 


JOHN   R.    AITKEN. 


John  R.  Aitken  was  born  in  San  Francisco. 
California,  March  31,  1854,  of  Scotch  parent- 
age. He  is  a  graduate  of  Hastings  Law  Col- 
lege ;  was  admitted  to  the  bar  of  the  State 
Supreme  Court,  June  10,  1886,  and  began 
practice  in  San  Francisco.  In  1888  he  re- 
moved to  San  Diego  city,  and  was  elected  in 
the  same  year  Superior  Judge  of  San  Diego 
county,  to  fill  out  the  term  of  Hon.  John  D. 
Works,  resigned.  His  period  of  service  was 
from  the  opening  of  the  year  i88g  to  the  close 
of  i8go,  at  the  end  of  which  he  resumed  prac- 
tice in  San  Diego.  In  1893  he  returned  to  his 
native  city,  where  he  has  ever  since  been  en- 
joying a  good  general  practice. 


JOHN  K.  ALEXANDER. 

John  K.  Alexander,  the  first  Superior  Judge 
of  Monterey  county,  and  who  held  the  office 
from  January.  1880,  to  January,  1891,  was 
horn  October  8,  1839,  in  Rankin  county,  Mis- 
sissippi, of  American  parents.  His  paternal 
ancestors  were  Scotch,  and  on  his  mother's 
side  they  were  English  and  German. 

His  father  was  a  contractor  and  builder, 
and  did  a  large  business.  In  November,  1840, 
leaving  his  family,  a  wife  and  two  sons  and  a 
daughter,  at  Jackson,  he  started  for  Califor- 
nia, arriving  in  the  following  January,  and 
settled  at  Sacramento.  From  the  lime  he 
left  his  family  uiuil  July.  1S54.  his  son,  John 
K..  attended  Ixitb  public  and  i)rivate  schools 
at  Jackson.  In  that  year  the  family  circle  was 
complete  again,  at  Sacramento.  California. 
There  John  K.  entered  a  public  grammar 
school,  w  liicli  he  attended  initil  the  fall  of 
1857.  Then,  his  father  being  interested  in  a 
gold  mine  in  Calaveras  county,  he  was  offered 
an  opi)i)rHniily  tn  make  his  first  nuMu-y.  and 
worked  in  the  mine  (the  Wondhouse  Quartz 
Company's  claim)    for   about   one  year,  labor- 


ing hard,  to  his  great  advantage  physically. 
Returning  to  Sacramento,  he  attended  the 
High  School  for  three  years,  serving  one  term 
as  vice-principal.  Then  graduating,  he  com- 
menced the  study  of  law  in  the  office  of  George 
R.  Moore,  who  was  a  good  lawyer,  with  a 
large  business.  He  studied  later  under  Harri- 
son &  Estee,  and  was  admitted  to  practice  in 
the  Supreme  Court,  October  7,  1862,  upon  mo- 
tion of  Hon.  Morris  M.  Estee,  now  United 
States  Judge  of  Hawaii,  and  after  examina- 
tion  in   open   court. 

In  1863  he  formed  a  iiartnersliip  with  his 
old  instructor,  Mr.  Moore,  which  lasted  until 
the  latter's  death. 

Mr.  .Alexander  then  continued  the  practice 
alone,  doing  a  good   and  paying  l)usiness  un- 


til the  fall  of  l8()S,  when  he  formed  a  p.irl- 
iiershii)  with  Hon.  Jojni  W.  .Armstrong,  who 
afterwards  became  ."-inperior  Judge.  This  firm 
was  dissolved  uixm  .Mr.  Alexander's  i.ikin.g 
the  office  of  district   .ittorney   in    1870. 

In  tile  e.inipaign  of  i8()7,  which  resulted  in 
I  he  election  of  llenr\  11.  Ilaighi  ;is  Governor. 
Mr.  Alexander  w.■l^  a  conspicuous  political 
figure  at  the  capital,  being  chairman  of  the 
largest  Democratic  organization  in  that  sec 
tion.  I'wo  years  later  his  i).iiiy  nominaled 
him  for  district  attorney,  and  he  was  elected 
in  a  Reiiublican  county  over  his  Republican 
o])])onent.  M.  C.  Tilden.  by  f>84  majority,  lie 
serxi'd  oiu'  term,  two  year>>.  with  more  ib.in 
average  success,  and  was  llu'u  nominated  by 
his  party  for  County  Judge.  Rut  he  had  to 
run  against  that  popular  veteran.  Hon.  Robert 
C.  Clark,  who  held  a  contiiniotis  estate  in  that 
office    uiUil    it    was    abolished    I)v    the    constilu- 


664 


History  of  the  Bench  and  Bar  of  Califontia. 


lion  of  1879,  and  also  to  stand  up  against  the 
popular  current  on  which  Newton  Booth  was 
just  then  careering  towards  the  chair  of  State. 

He  now  went  with  his  family  to  the  east- 
ern and  southern  states,  to  revisit  the  friends 
and  scenes  of  his  boyhood,  and  generally  to 
see  the  country  and  its  wonders.  Returning, 
after  three  months'  absence,  he  formed  a  part- 
nership with  A.  C.  Freeman,  who  has  since 
produced  many  law  books,  and  materially  as- 
sisted in  the  preparation  of  hi.s  work  on  "The 
Law   of  Judgments." 

In  August.  1874,  Mr.  Alexander  dissolved 
with  Mr.  Freeman,  and  on  account  of  ill 
health,  removed  to  Salinas  City,  the  Monte- 
rey county  seat,  where  he  opened  a  law  office. 
ne  had  not  been  there  long  when  the  board 
of  supervisors  employed  him  in  several  im- 
portant matters  of  public  business.  Among 
these  was  the  case  against  Robert  McKee,  ex- 
county  treasurer,  on  his  bond,  and  one  agamst 
M.  .v.  Castro,  e.x-tax  collector,  also  on  his 
bond;  and  in  a  criminal  action  against  the 
latter,  and  W.  H.  Rumscy.  his  deputy,  which 
grew  out  of  the  burning  of  the  courthouse. 
In  these  bond  cases  he  recovered  judgment  and 
secured  the  money  for  the  county.  He  was 
very  successful  in  his  new  home,  and,  al- 
though often  pressed  to  re-enter  politics,  re- 
fused, and  attended  strictly  to  his  law  busi- 
ness. But,  in  1879,  being  nominated  by  his 
party  for  Superior  Judge,  he  accepted  the  nom- 
ination, and  was  elected  by  359  majority.  He 
was  re-elected  in  1884,  by  a  much  larger  ma- 
jority in  a  straight  fight  between  the  Demo- 
crats and  the  Republicans,  though  the  State 
and  county  went  for  James  G.  Blaine  for  Pres- 
ident. 

His  candidacy  in  1879  was  induced  by  a  re- 
quest in  writing,  signed  by  100  of  the  leading 
citizens  of  Monterey  coiuity.  differing  in  poli- 
tics, but  all  moved  by  a  tear  that  the  candi- 
date of  the  Workingmen's  party  would  be  Su- 
perior Judge.  He  was  afterwards  nominated 
by  the  Democratic  convention  and  the  nomi- 
nation was  endorsed  by  the  Republicans.  He 
was  elected  over  two  opponents,  for,  besides 
the  candidate  of  the  Workingmen  (N.  G. 
Wyatt),  the  New  Constitulion  party,  another 
ephemeral  organization,  presented  a  nonunce 
in  the  person  of  an  old  bar  leader  of  that 
region.  Hon.  D.  S.  Gregory,  since  Superior 
Judge   of    San    Luis   ObisjH)   county. 

Judge  Alexander  has  been  ni  very  full  prac- 
tice at  Salinas  since  leaving  the  bench.  He 
is  cautious,  careful  and  methodical,  a  man  of 


dispatch.  Very  few  of  his  judgments  from  the 
bench  were  reversed,  although  many  appeals 
were  taken  from  them.  The  first  murder  case 
tried  before  him,  that  of  the  People  against 
lams,  is  reported  in  57  Cal.,  page  115.  There 
the  Supreme  Court  unaniinously  and  highly 
complimented  him.  The  official  reporter,  Mr. 
George  H.  Smith,  sets  forth  Judge  Alexan- 
der's charge  to  the  jury  in  full.  This  is  a 
fine  legal  paper,  and  adds  to  the  value  of  the 
Reports.  The  Supreme  Court  in  their  opinion 
affirming  the  judgment  of  Judge  Alexander, 
declared:  "We  are  obliged  to  say,  in  justice 
to  the  learned  Judge  who  presided  at  the 
trial,  that  the  charge  to  the  jury  is  a  very 
clear  and  able  statement  of  the  law  of  homi- 
cide. It  is  a  long  charge,  completely  cov- 
ering all  the  points  in  the  case,  and  is,  in 
our  opinion,  entirely  correct." 

Judge  Alexander  married  at  Petaluma,  Au- 
gust 2,  1865,  Miss  Sallie  B.  Carothers,  and 
has  two  sons,  Eliner  P.  and  Roy  L.,  and  a 
daughter,  Maroueile  Alice.  He  is  a  member 
of  the  San  Francisco  Bar  Association,  whose 
rooms  he  finds  a  most  congenial  place  of  re- 
treat and  conference  in  frequent  visits  to  the 
metropolis.  He  has  a  younger  brother,  Daniel 
E.,  practicing  law  at  San  Francisco. 

On  July  7,  1888,  he  was  honored  with  the  de- 
gree of  LL.  D.  by  the  Los  Angeles  University. 
Judge  Alexander  drew  the  very  complicated 
will  of  Alberto  Tresconey,  which  was  con- 
tested, and,  after  a  long  trial,  was  admitted 
to  probate  at  Salinas.  No  direct  appeal  was 
taken,  but  it  was  again  attacked  collaterally. 
Judge  Alexander  represented  the  beneficiaries, 
and  the  will  was  sustained  in  the  Superior 
Court,  and  on  appeal.  (119  Cal.  571.)  The 
estate  was  appraised  at  over  $500,000. 

It  was  principally  through  Judge  Alexan- 
der's efforts  that  a  fine  Masonic  temple  was 
erected  in  Salinas  by  the  fraternity,  in  1896. 
He  is  President  of  the  Masorfic  Hall  Asso- 
ciation, and  has  been  such  since  its  organiza- 
tion. He  is  a  Past  Master  and  Past  Hiah 
Priest  of  the  order,  and  Past  Patron  of  O.  E. 
Star. 

His  father  died  in  December,  1896,  aged 
eighty-six  years.  His  son,  Elmer  P.,  was 
appointed  tax  collector  of  Monterey  county 
in  July,  1897,  to  fill  the  unexpired  term  of  the 
defaulting  collector,  Charles  L.  Westlake,  and 
has  held  the  ])osilion  ever  since,  having  been 
elected  for  a  new  and  full  term.  Elmer  is 
married,  and  has  one  son  about  three  years 
old. 

Judge  Alexander  received  a  very  complimen- 


History  of  the  Bench  and  Bar  of  California. 


665 


tary  vote  for  Supreme  Judge  in  the  State  con- 
vention that  nominated  Janus  II.  Budd  for 
Governor  (1894).  He  is  still  in  the  active 
practice  of  the  law  at   Salinas. 


hands   of   the    Republican    party,    and    the   en- 
dorsement  of  the   Democratic  party. 


M.  T.  ALLEN. 

Matthew  Thompson  Allen,  one  of  the  Judges 
of  the  Superior  Court  of  Los  Angeles  county, 
was  born  near  Greenville,  Ohio,  September  17, 
1848 — the  son  of  Rev.  John  Allen,  who  was  a 
native  of  Ireland.  He  attended  the  common 
schools  of  Ohio,  and  enjoyed  a  partial  course 
in  Otterbein  LTniversity,  at  Westerville,  in  that 
State.  He  studied  law  at  Winchester,  Indiana, 
in  the  office  of  Hon.  D.  M.  Bradbury,  and  for 
a  short  time  was  assistant  prosecuting  attorney 
for  the  nineteenth  circuit  of  that  State. 

Returning  to  Greenville.  Ohio,  in  1871,  he 
entered  upon  the  practice  of  law,  which  he  con- 
tinued until  the  fall  ol  1886.  In  that  year,  on 
account  of  ill  health,  He  came  to  California 
and  settled  at  Los  Angeles,  resuming  the  prac- 
tice there  in  the  following  3'ear.  He  was 
elected  a  Judge  of  the  Superior  Court  in  the 
fall  of  1896,  and  beean  his  term  on  the  bench, 
January  i,  1897.  Prior  to  this  he  was  L'^nited 
States  attorney  for  the  southern  district  of 
California  during  the  administration  of  Presi- 
dent Harrison,  resigning  such  position  upon 
the  incoming  of  President  Cleveland's  second 
term. 

During  Judge  Allen's  incumbency  upon  the 
bench,  he  has  been  the  author  of  two  decisions 
which  have  attracted  more  than  usual  attention, 
viz.,  that  which  declared  that  marriages  at 
sea,  commonly  termed  "tug-boat  marriages," 
are  void;  the  other  decision  enforced  the  right 
of  an  indigent  husband  to  maintenance  out  of 
the  separate  estate  of  the  wife,  where  he  had 
been  driven  from  home  by  cruelty.  Both  of 
these  decisions  were  affirmed  by  the  Supreme 
Court. 


FRANK  M.   ANGELLOTTI. 

The  Judge  of  the  Superior  Court  of  Marin 
county  is  a  native  son  of  that  county,  born  in 
the  year  1861.  He  was  educated  in  the  schools 
of  this  State,  and  is  a  graduate  of  the  Hastings 
College  of  the  Law. 

He  commenced  the  practice  of  the  law  in 
San  Rafael  in  the  year  1883.  In  18S4  he  was 
elected  district  attorney  of  Marin  county,  and 
was  twice  re-elected  to  that  position.  In  1890 
he  was  elected  Judge  of  the  Superior  Court, 
and  in  1896  he  was  re-elected  without  opposi- 
tion,   having    received    the    nomination    at    the 


JOHN   W.   ARMSTRONG. 

John  \\  .  Armstrong  came  from  the  State 
of  Ohio  to  California  in  1852.  He  studied  law 
under  the  late  Judge  Fabens,  at  San  Francisco, 
and  after  having  been  admitted  as  an  attor- 
ney, located  in  Jackson,  Amador  county,  where 
he  mined  for  a  year  or  more,  during  which 
time  he  practiced  law  when  the  opportunity 
presented  itself.  In  the  first  case  that  he  tried 
he  needed  a  law  book  that  could  not  be  ob- 
tained in  Jackson,  so  he  walked  to  Mokelumne 
Hill  (five  miles  distant),  and  not  having  the 
money  to  pay  his  toll  on  the  bridge  over  the 
Mokelumne  river,  he  waded  the  turbulent 
stream,  procured  the  book,  and  prevailed  in 
his  case.  He  was  a  man  of  iron  will,  and  no 
obstacle  with  which  he  was  confronted  ever 
deterred  him  from  his  purpose,  if  it  was  pos- 
sible of  execution.  His  indefatigable  industry 
and  unparalleled  perseverance,  with  his  readi- 
ness to  comprehend  and  grasp  intricate  prob- 
lems of  law,  soon  attracted  the  attention  of 
the  public,  and  he  readily  acquired  a  lucrative 
practice.  For  more  than  twelve  years,  he  was 
the  law  partner  of  the  late  United  States  Sen- 
ator James  T.  Farley.  As  early  as  1858,  it 
was  said  of  him  by  a  distinguished  Judge  of 
.\mador  county,  that  he  furnished  the  brains 
for  the  bar  of  that  county,  and  more  recently, 
in  a  discussion  of  the  relative  merits  of  the 
members  of  the  bar  of  the  State,  it  was  said 
by  the  Chief  Justice  of  our  Supreme  Cotu^t 
that  no  other  attorney  presented  his  case  in 
a  more  clear,  succinct  and  forcible  manner 
than  Judge  Armstrong"  did.  This  opinion  was 
concurred  in  by  the  Associate  Justices. 

He  moved  to  Sacramento  in  1868,  where  he 
soon  established  an  extensive  practice,  and  for 
thirteen  years  he  and  Judge  A.  C.  Hinkson 
were    associated    in    the    i)ractice    of    the    law. 

i)nring  ibe  early  pari  of  the  ;idniinistration 
nf  Governor  Stonemaii  lie  .ippointed  Judge 
AmistrcMig  to  a  vacancy  <n\  the  Superior  Court 
bench  of  Sacramento  county,  and  just  before 
tile  expiration  of  Governor  Stoneman's  term, 
aniitlicr  \acaney  ncctu'ri'd  on  the  bench  of  Sac- 
ramento county,  and  Judge  Armstrong  had 
developed  such  peculiar  fitness  for  the  position 
that  it  was  by  common  consent  that  Governor 
Sldueman  again  appointed  him  Judge  of  that 
county.  Subsequently  he  was  nominated  for 
Judge  of  the  Superior  Court  of  Sacramento  by 
the   Democratic  parly,  of  which   party  he  was 


666 


History  of  the  Bench  and  Bar  of  California. 


always  a  faithful  adherent,  and  though  the 
Republican  ticket  carried  the  county  by  a  large 
majority,  he  was  elected  by  a  majority  of  over 
two  thousand.  After  the  expiration  of  his  term 
he  resumed  the  practice  of  the  Iaw\  which  he 
pursued  up  to  his  death,  wliich  occurred  on 
the  21  si  day  of  March,  i8g6,  when  he  had  at- 
tained the  aee  of  sixty-one  years. 

Judge  Armstrong  possessed  many  commend- 
able social  characteristics.  While  he  was  a 
man  of  wonderiul  force  of  character,  and  was 
fearless  and  aggressive,  he  was  broad-minded, 
just,  tender-hearted,  sympathetic  and  generous, 
and  though  he  enjoyed  a  lucrative  practice,  his 
purse  was  always  open  to  his  friends  and  the 
needy.  By  reason  of  his  liberality  and  charity, 
he  accumulated  but  little  wealth,  but  left  to 
his  family  a  far  more  valuable  heritage,  an  un- 
sullied reputation  ;  and  as  lawyer  and  citizen, 
his  life  and  example  are  well  worthy  of  emu- 
lation bv  his  surviving  brothers  in  the  law. 


N.   D.   ARNOT 


Nathaniel  Dubois  Arnot,  Judge  of  the  Supe 
rior  Court  of  Alpine  county,  was  born  in  the 
village  of  Gouverneur,  in  the  county  of  St. 
Lawrence,  State  of  New  York,  in  April,  1845. 
He  is  the  only  son  of  N.  D.  and  Amanda 
Arnot,  who  came  to  California  in  the  early 
days.  Judge  Arnot's  father  was  a  man  of 
great  energy  and  enterprise.  He  w-as  superin- 
tendent of  the  Fremont  estate  in  Mariposa 
county,  where  he  became  intimately  acquainted 
with  General  Fremont,  Frederick  Billings  and 
Trenor  W.  Park :  he  was  later  manager  of 
the  quicksilver  mines  at  New  Almaden,  and 
an  owner  of  the  Vulcan  Iron  Works,  in  San 
Francisco. 

After  attending  the  Brayton  school  in  Oak- 
land, where  he  formed  many  close  and  lasting 
friendships,  especially  that  of  Charles  Warren 
Stoddard,  poet  and  traveler.  Judge  Arnot  was 
graduated  from  the  College  of  California,  as 
the  University  of  California  was  then  called, 
in  the  class  of  1869.  His  class  was  a  small 
one,  the  Hon.  John  B.  Reddick,  late  Lieuten- 
ant-Governor of  California,  being  of  the  num- 
ber. Deciding  upon  the  profession  of  the  law, 
Judge  Arnot  entered  the  law  school  at  Al- 
bany, New  York,  and  was  graduated  from  that 
institution  with  high  honors.  Owing  to  the 
genial  and  ingenuous  disposition  which  has 
always  made  him  hosts  of  friends  wherever  he 
has  gone,  he  was  made  president  of  his  class. 
His  course  at  this  noted  law  school  was  one 
of  great  inspiration,  especially  by  reason  of  the 


close  personal  contact  which  the  students  were 
privileged  to  have  with  the  distinguished  mem- 
bers of  the  Albany  bench  and  bar  of  that  day 
— Rufus  W.  Peckham,  Sr.,  Lyman  Tremain, 
his  law  partner,  and  Ira  Harris,  United  States 
senator  from  New  York,  and  Judge  Amasa 
J.    Parker. 

In  1871  he  married  Miss  Mary  Eugenia  Hol- 


brook,  of  Gouverneur,  his  native  place.  Mrs. 
Arnot  was  a  woman  of  rare  qualities  of  mind, 
a  Vassar  graduate,  and  a  lady  whose  unselfish 
and  radiant  disposition  won  all  hearts.  Mr. 
and  Mrs.  Arnot  took  up  their  residence  in 
San  Francisco,  w-here  they  lived  until  Mrs. 
Arnot's  death  in  1875.  Mr.  Arnot  then  re- 
moved to  Silver  Mountain  in  Alpine  county, 
where  his  father  was  building  a  large  quartz 
mill  for  an  English  mining  syndicate.  Ever 
since  that  time,  he  has  been  a  resident  of 
Alpine  county.  After  practicing  law  for  a 
short  time,  in  Silver  Mountain,  he  was  offered 
the  nomination  of  Judge  of  the  new  Superior 
Court,  which,  under  the  new  constitution,  suc- 
ceeded the  old  District  Courts.  He  was  elected 
by  a  large  majority,  and  has  held  the  office 
continuously  since  January  ist,  1880.  He  is 
one  of  the  six  judges  now  in  office  who  have 
served  continuously  since  the  new  constitution 
went  into  effect.  His  compeers  in  this  respect 
are  Judges  Corcoran  of  Mariposa,  Gottschalk 
of  Calaveras,  'Greene  of  Alameda.  Hunt  of 
San   Francisco,  and  Jones  of  Trinity. 

Judge  Arnot  married  for  his  second  wife 
Miss  Anna  M.  Ford,  of  Silver  Mountain — a 
woman  of  intellect  and  much  force  of  charac- 
ter. Eight  children  are  the  issue  of  this  mar- 
riage, the  eldest  of  whom.  Miss  M.  Eugenia 
.\rnot,  was  graduated  from  the  L^niversity  of 


History  of  the  Bench  and  Bar  of  California. 


637 


Nevada  at  Reno  in  igoo.  Judge  Arnot  has 
by  his  first  wife,  one  son,  Raymond  H.  Arnot. 
wlio.  after  graduating  at  the  Phillips  Exeter 
Academy,  Yale  College,  and  Yale  Law  Scheol. 
took  up  the  practice  of  the  law  in  Rochester, 
in  the  State  of  New  York,  where  he  still  re- 
sides. 

By  his  winning  and  gracious  manners,  gen- 
eral good  fellowship,  and  democratic  ways. 
Judge  Arnot  has  endeared  himself  to  every 
community  in  which  he  has  held  court.  Being 
a  judge  in  a  small  county,  he  is  frequently 
asked  to  preside  in  the  Superior  Court  in 
other  counties  of  the  State ;  notably  so  in 
Amador,  Calaveras,  El  Dorado.  Inyo.  Modoc, 
Mono  and  Sacramento.  Though  often  urged 
to  accept  the  nomination  for  Superior  Judge 
in  several  of  the  counties  in  which  he  has  held 
court,  he  has  refrained  from  opposing  those 
whom  he  regards  as  having  a  prior  claim  to 
the  high  office,  and  he  remains  loyal  to  little 
Alpine,  where  many  happy  years  of  his  life 
have  been  spent.  As  a  man,  he  is  universally 
respected,  and  as  a  judge  he  is  learned,  fearless 
and  impartial. 


J.  S.  BEARD. 

Judge  J.  S.  Beard,  of  Yreka,  Siskiyou  coun- 
ty, California,  was  born  in  the  old  Keystone 
State  sixty-three  years  ago.     In  the  spring  of 


183.^  he  assisted  in  the  survey  of  that  portion 
of  the  Reading  Railroad  extending  from  Sha- 
niokin  to  Sunbury.  Late  in  1854  he  entered 
the  prothonotary's  office  of  Northumberland 
county,  under  his  father.  There  lie  studied 
law,  and  was  admitted  to  the  bar  on  April 
7th,  1857.  He  practiced  his  profession  for  a 
time  in  his  native  state,  and  removed  to  Ore- 


gon in  iS5().  and  -liDrtly  thereafter  toCalifornia. 
He  settled  in  Siskiyou  county  in  1862  and  in 
1864  he  resumed  the  practice  of  the  law  in  con- 
nection witli  L.  N.  Ketchum.  During  the 
Civil  War  thtn  in  progress,  many  lawvers 
were  driven  into  other  pursuits  of  life.  He 
then  engaged  in  teaching  school,  which  oc- 
cupation he  followed  about  eieht  years,  when 
he  again  resumed  the  practice  of  law.  He 
was  president  of  the  first  Board  of  Education 
of  Siskiyou  county,  and  has  taken  a  lively  in- 
terest always  in  educational  matters.  He 
was  elected  district  attorney  in  1882,  and  was 
holding  that  office  in  1890,  when  he  was 
elected  Judge  of  the  Superior  Court.  He  was 
re-elected   to   the   judgeship   in    1896. 

Judge  Beard  is  a  man  of  family,  having 
been  married  twice.  His  first  wife's  name 
was  Annie  W.  Ackley,  by  whom  he  had  four 
children,  Annie  Ackley.  now  intermarried 
with  S.  H.  Hill  ;  John  A.,  James  G.,  and 
Charles  Webster,  the  last  named  deceased. 
His  present  wife's  maiden  name  was  Emma  J. 
Bigelow.  They  have  two  children.  Emily 
Grace  and   Susan   Margarette. 

The  Judge  joined  the  Independent  Order 
of  Odd  Fellows  on  November  6th,  1857,  and 
is  a  Past  Grand.  He  is  a  Past  Chancellor  of 
the  Knights  of  Pythias;  Past  Master  of  the 
Ancient  Order  of  United  Workmen  ;  and  for 
two  terms  held  the  position  of  Eminent  Com- 
mander of  Mount  Shasta  Commandery  No. 
32,   Knights  Templar. 

He  is  a  member  and  an  active  worker  in 
the  Methodist  Episcopal  church,  and  an  earn- 
est friend  of  every  movement  that  is  calcu- 
lated to  promote  the  welfare  and  hapoiness 
of  humanity. 


EDWARD  A.   BELCHER. 

Edward  .'\.  Belcher,  a  judge  of  the  Superior 
Court  of  San  Francisco  from  October  25,  1893, 
to  the  close  of  the  year  iqoo,  was  born  in 
Vernionl.  on  August  i.  1855.  Isaac  S.  Belcher, 
who  Ii.hI  ;i  long  :ind  distinguished  career  at 
the  bar  ,in<l  on  the  bench  in  California,  and 
who  is  wrillen  of  in  this  llislory.  and  also 
William  C".  In-lclnr.  ilsrwlurr  referred  to. 
were   his   linlf-brothers. 

ICdward  A.  Belcher  was  educiled  at  rutn.im 
College,  Newburyport.  Mass..  btU  left  for  Cali- 
fornia, in  t868,  before  graduating,  and  located 
at  Alarysville,  where  his  brothers  were  estab- 
lislud  in  law  practice.  In  their  office  he  pre- 
pared himself  for  the  bar.  He  was  a<lmitted 
to  i)ractice  by  the   Suj)reme  Court  on  October 


668 


History  of  the  Bench  and  Bar  of  California. 


10.  1876.  In  the  following  year  he  was  city 
attorney  of  Marysville.  He  was  lieutenant- 
colonel  on  the  staff  of  Governor  Perkins,  1880- 
82.  Having  pursued  the  practice  of  law  in 
Marysville  until  1890,  he  removed  to  San 
Francisco  in  July  of  that  year.  Fie  became 
a  Judge  of  the  Superior  Court,  by  appointment 
of  Governor  Markham,  on  October  25,  1893, 
to  fill  a  vacancy,  and  in  November,  1894,  he 
was  elected  a  judge  of  that  court  for  a  full 
term.  This  ended,  as  stated,  with  the  close  of 
the  year  1900. 

Judge  Belcher  is  a  member  of  the  Masonic 
order.  He  is  of  Republican  politics.  On  the 
bench  his  course  was  always  eminently  impar- 
tial, and  marked  by  that  unflagging  industry 
and  conscientious  discharge  of  every  duty, 
which  were  dominant  (lualitics  of  his  older 
lirothers. 


AARON    BELL. 


Aaron  Bell  a  native  of  Center  county, 
Pennsylvania,  was  born.  December  2nd,  1832. 
His  ancestors  came  to  America  from  Scotland 
before  the  Revolution.  His  grandfather.  John 
Bell,  served  on  the  side  of  the  colonies  under 
Benedict  Arnold,  whom  he  accompanied  on 
his  expedition  to  Quebec.  .A.fter  the  war  he 
settled  in  Ohio  where  Cincinnati  now  stands. 
He  afterwards  moved  to  Pennsylvania  where 
he  engaged  in  farming,  and  later,  in  mercan- 
tile pursuits.  John  Bell  was  a  zealous  Presby- 
terian. He  married  in  New  Jersey  and  had 
four  sons  and  two  daughters. 

John  Bell.  Jr.,  the  father  of  the  Judge,  was 
born  in  Mercer  county^  Pennsylvania,  in  1813, 
and  was  for  many  years  engaged  in  the  manu- 
facture of  iron  at  Pittsburg,  Johnstown  and 
other  places  in  that  State.  He  married  Miss 
Christiana  Evans  of  Huntingdon  county,  Penn- 
sylvania. The  Judge's  mother  made  her  home 
with  him  for  many  years  and  died  in  1899, 
aged  eighty-seven  years. 

Aaron  Bell  was  the  eldest  child.  He  was 
educated  in  Pittsburg  where  he  also  studied 
law.  He  came  to  California  in  1852  and  set- 
tled in  Ei  Dorado  county,  where  he  engaged  in 
mining.  During  his  si.xteen  years'  sojourn  in 
that  county  he  was  elected  justice  of  the  peace, 
and  appointed  deputy  county  recorder,  deputy 
county  clerk,  and  city  clerk  of  Placerville. 
Meanwhile  he  continued  his  law  studies,  and 
was  admitted  to  the  bar  in  the  old  District 
Court  in  1864.  He  practiced  for  three  years 
in  Sacramento,  giving  the  United  States  land 
law   his   special  attention. 


A  United  States  land  office  had  been  estab- 
lished at  Shasta,  and  Mr.  Bell  was  sent  there 
to  unravel  some  complications  between  that 
office  and  the  department  at  Washington.  Upon 
this  occasion  he  became  favorably  impressed 
with  the  county  and  located  at  Shasta,  where 
he  was  appointed  registrar  of  the  land  office 
and  served  in  this  capacity  for  six  years,  until 
1879,  when  he  resigned,  having  received  the 
nomination  on  the  Republican  ticket  for  Judge 


of  the  Superior  Court.  He  was  elected  by  a 
majority  of  600  votes,  runnmg  500  votes  ahead 
of  his  ticket. 

During  the  Judge's  first  term  the  sheriff-elect 
of  the  county  was  refused  the  office  by  the 
incumbent  upon  the  ground  that  the  former 
had  not  given  sufficient  bonds.  The  pretension 
was  that  by  the  census  of  1880  the  county  had 
advanced  from  third  to  second  class  and  that 
the  bond  given  by  the  sheriff-elect  did  not 
conform  to  legal  requirements.  The  case  was 
carried  into  court  and  Judge  Bell  decided  in 
favor  of  the  newly-elected  officer,  making  an 
order  to  seize  the  books  and  papers,  and  to 
take  sufficient  force  to  execute  the  same.  The 
out-going  officer  and  his  men.  armed  with 
Henry  rifles,  held  the  courthouse,  with  the 
door  barred  on  the  inside.  Refusing  admission, 
they  threatened  that  whosoever  touched  the 
door  would  do  it  at  the  peril  of  his  life.  Nev- 
ertheless, the  doors  were  broken,  the  books 
and  papers  seized,  and  the  new  officer  was  in- 
stalled. The  people  took  sides,  and  feeling 
ran  high.  The  case  was  carried  to  the  Supreme 
Court,  which  sustained  Judge  Bell  in  every 
particular. 


History  of  the  Bench  and  Bar  of  California. 


669 


Anotlier  incident  of  note  was  the  case  to 
prevent  the  removal  of  the  county  seat  from 
Shasta  to  Redding.  When  Judge  Bell  gave 
his  decision  the  courthouse  was  filled  with 
people,  and  excitement  ran  high  in  both  towns. 
The  case  was  appealed  and  after  three  years, 
the  Supreme  Court  decided  in  accord  with 
Judge  Bell's  decision  in  favor  of  the  removal. 

Judge  Bell  held  the  office  of  Superior  Judge 
for  eleven  years.  The  last  time  he  was  elected 
the  party's  majority  was  eighty,  but  he  car- 
ried the  election  by  800  majority. 

During  later  years  he  has  again  interested 
himself  in  mining.  In  1853  he  had  been  a 
partner  of  Marshall,  the  discoverer  of  gold 
in  El  Dorado  county,  and  latterly  with  his 
brother,  Jos.  E.  Bell.  He  has  also  been  inter- 
ested in  a  box,  shingle  and  lath  factory,  and 
in  1889  he  manufactured  over  400,000  raisin 
boxes. 

The  Judge  takes  much  concern  in  fraternal 
organizations.  He  became  an  Odd  Fellow  in 
1855 ;  has  been  a  member  of  the  grand  lodge 
since  1861  ;  and  is  a  member  of  the  Veteran 
Association  of  the  State.  He  is  a  charter  mem- 
ber of  Shasta  Lodge,  A.  O.  U.  W:,  which 
started  in  1878 ;  and  has  been  grand  command- 
der  of  the  American  Legion  of  Honor  of  Cali- 
fornia for  two  terms. 

In  187  <  January  ist,  the  Judge  married  Miss 
Julia  Fipps.  a  school  teacher  at  Shasta,  who 
is  still  the  happy  companion  of  his  home.  They 
have  one  son,  married,  and  another  attending 
school. 

From  the  American  Legion  of  Honor  Record 
dated  March,  1884,  the  following  lines  are 
quoted:  "Judge  Bell  is  a  gentleman  of  pleas- 
ant address  and  disposition,  and  he  is  quite 
popular  in  Shasta  county.  His  course  when 
he  became  Judge,  with  the  impartiality  and 
fairness  which  marked  his  decisions  on  the 
bench,  his  untiring  attention  to  the  duties  of 
his  high  office,  his  courtesy  and  kindness  to  his 
brother  attorneys,  have  won  for  him  the  re- 
spect and  admiration  of  the  community.  He  is 
a  strictly  temperate  man,  a  diligent  student, 
possessing  an  unruffled  tcni])cr,  courlcous  in 
his  demeanor,  the  friend  of  the  i)oor  and 
needy,  always  ready  to  do  good  to  his  fellow 
man." 

At  this  writing  Judge  I'.cll,  at  the  age  of  67, 
is  in  \igorous  health",  and  active  in  his  law 
practice.  He  has  won  the  success  he  merited, 
and  is  congenial  in  his  social  relations  and 
happy  in  his  home  circle. 


EUGENE  A.  BRIDGFORD. 

Eugene  A.  Bridgford,  now  of  San  Francisco, 
but  who  was  for  a  long  period  Superior  Judge 
of  Colusa  county,  was  born  in  Monroe  county, 
Missouri,  on  the  26th  day  of  January,  1849. 
He  was  educated  in  the  common  schools  of 
that  county,  and  later  at  Vanrensseleer  Acad- 
emy. 

He  came  to  California  in  1870,  and  began 
the  practice  of  law  in  1877  in  Colusa  county. 
He  was  active  in  the  practice  until  January, 
1S82,  when  he  was  elected  to  the  Superior 
bench.  This  position  he  occupied  for  four- 
teen years,  and  made  a  record  which  may  be 
said  to  be  exceptional  in  some  respects. 

During  his  incumbency  he  tried  twenty-five 
murder  cases,  resulting  in  twenty-one  verdicts 
of  guilty. 

Some  of  these  cases  attracted  widespread 
attention.  Among  those  more  noted  were  the 
cases  of  Miller,  for  the  killing  of  Dr.  Hugh 
J.  Glenn,  who  at  that  time  was  the  largest 
wheat  producer  in  the  world,  and  who  was 
the  Democratic  candidate  for  Governor  in 
1879;  Hong  Dye,  for  the  killing  of  Mrs.  Bil- 
lon; and  Fremont  Smith,  for  the  killing  of  two 
fishermen. 

Hong  Dye  attempted  to  kill  the  whole  Bil- 
lon family.  He  was  brought  to  trial  before 
Judge  Bridgford.  The  case  attracted  much 
attention  throughout  the  State,  and  particu- 
larly in  thai  seclinn.  People  from  many  miles 
distant  and  from  adjacent  counties  attended 
I  he  trial.  A  verdict  of  the  jury  was  reached 
about  eleven  o'clock  at  night.  This  informa- 
lion  was  conveyed  to  the  Judge.  He  had  been 
a  close  observer  of  the  situation,  and  realized 
lliat  if  the  verdict  was  anything  less  than 
nuirdir,  with  the  death  penalty,  and  the  pris- 
oner should  be  brought  into  court  at  that  time 
of  night,  mob  violence  would  at  once  ensue, 
;in(l  the  ])risoner  be  taken  from  the  comM- 
nmni  and  hanged.  Lie  felt  warranted,  under 
tlie  circiunstaiices  in  pursuing  ;i  somewhat  un- 
usual course.  So  he  direcletl  the  b.-iiliff  in 
charge  of  the  jury  to  call  some  one  of  the 
jury  t(i  the  door  of  the  jury  room  and  ask  him 
what  \\\v  verdict  was,  take  his  reply.  :ind  re- 
].(iri.  I'he  li.iilitT  did  as  directed,  and  received 
the  infcirnialion  that  the  verdict  was  mtu-der  in 
the  first  degree — penalty,  imprisonnienl  for 
life. 

The  l.;iilil"f  was  directed  to  .say  to  the  jury 
that  the  Judge  had  gone  home  for  the  night 
;ind  would  receive  the  verdict  the  following 
mornine.     .An  hour  later  it  became  known  that 


670 


History  of  the  Bench  and  Bar  of  California. 


the  jury  had  reached  a  verdict.  Accordingly, 
a  number  of  gentlemen,  including  Andrew- 
Lawrence,  who  represented  the  San  Francisco 
Examiner,  visited  the  Judge's  home,  calling 
him  up,  and  announced  that  the  jury  had 
reached  a  verdict  and  desired  his  presence. 
The  Judge  quietly  informed  them  that  he  had 
retired  for  the  night,  and  would  receive  the 
verdict  during  court  hours  the  next  day. 

The  Judge  appreciated  the  gravity  of  the  sit- 
uation. While  there  had  been  no  outward 
demonstration,  he  could  see  vengeance  in  the 
atmosphere.  He  determined,  if  possible,  to 
thwart  the  purpose  of  the  gathered  populace. 
No  one  yet  knew  what  the  verdict  was  except 
the  bailiff  and  the  Judge. 

Before  sunrise  the  next  morning  the  Judge 
visited  the  clerk  of  the  court  and  arranged 
to  immediately  repair  to  the  court  room  and 
receive  the  verdict  before  the  people  could 
know  of  it.  It  being  necessary  to  have  the 
attorney  for  the  defendant  present,  a  note  was 
written,  explaining  the  plan  of  action,  and 
given  to  a  messenger  with  directions  to  go  to 
the  home  of  the  attorney  of  the  defendant  and 
deliver  it  to  him  personally.  This  was  done, 
but  the  attorney  having  been  up  most  of  the 
night  before,  fell  asleep  again,  and  did  not 
put  in  an  appearance  until  eight  o'clock.  In 
the  meantime  it  became  known  around  town 
that  the  Judge  was  at  the  court  house.  When 
the  attorney  for  the  defendant  appeared,  the 
court  room  was  full  of  strong,  determined  men. 
The  Judge  saw  what  he  had  to  confront,  and 
prepared  to  meet  it  as  he  best  could.  He  held 
a  brief  interview  with  the  sheriff  and  admon- 
ished him  to  promptly  arrest  the  first  man 
making  any  demonstration.  The  jury  was 
brought  in  and  asked  if  a  verdict  had  been 
reached.  The  foreman  answered  in  the  affirma- 
tive. There  was  a  deathly  stillness  in  the 
court  room,  while  all  eyes  were  fixed  upon  the 
jury  and  the  prisoner.  The  foreman  an- 
nounced the  verdict  of  murder  with  life  im- 
prisonment. The  whole  court  room  rose  as 
one  man,  and  a  dozen  pistols  were  drawn.  The 
leader  said:  "We  are  not  satisfied  with  the 
verdict,  and  will  take  the  prisoner."  The 
Judge  was  immediately  on  his  feet,  and  said  to 
the  sheriff:  "Arrest  that  man."  The  sheriff 
hesitated,  and  the  Judge,  rapping  on  his  desk 
with  a  ruler,  said:  "Mr.  Clerk,  take  down  the 
name  of  every  man  who  comes  within  the  bar, 
and  I  will  see  that  he  is  prosecuted  to  the  full 
extent  of  the  law."  Andrew  Lawrence,  the 
Examiner  man,  shouted :  "Call  their  names. 
Judge,  and  I  will  take  them  down."     This  had 


the  effect  of  staggering  the  mol).  The  Judge, 
however,  realized  that  they  must  not  be  given 
time  to  recover,  and  said  sternly :  "Mr.  Clerk, 
enter  a  fine  of  $500  against  every  man  who  is 
in  this  court  room  in  two  minutes  from  this 
time."  This  had  the  desired  effect.  There 
was  a  rush  for  the  door.  The  men  who  were 
willing  to  face  guns  were  dispersed  by  threats 
of  a  fine.  The  court  room  was  immediately 
cleared.  An  examination  a  few  minutes  later 
sIiDwed  that  the  mob  had  prepared  a  rope  with 
a  noose,  and  made  it  fast  to  a  bridge  con- 
necting the  upper  stories  of  the  court  house 
and  jail  l)uilding.  The  hanging  of  the  China- 
man wnuld  have  been  the  work  of  a  minute 
had  the  mob  succeeded  in  taking  him.  The 
Chinaman  was  subsequently  taken  by  the  mob 
from  the  jjtil  and  hanged.  It  was  a  common 
saying  in  that  inirl  nf  the  State  for  a  long 
time  that  Judge  Bridgford  routed  a  mob  with 
a  ruler. 

Judge  Bridgford.  during  his  term  of  office, 
tried  hundreds  of  criminal  and  civil  cases,  and 
did  not  have  a  ruling  in  a  criminal  case  re- 
versed. One  case  was  reversed  because  the 
Supreme  Court  held  the  evidence  was  insuffi- 
cient to  warrant  the  jury  in  finding  the  de- 
fendant guilty.  His  record  in  civil  cases  was 
almost  as  good.  He  tried  many  new  and  im- 
portant questions,  and  met  with  as  few,  if  not 
fewer,  reversals  than  any  other  Judge  in  the 
State. 

In  1894  he  was  nominated  by  acclamation 
liy  the  State  Democratic  convention  for  Asso- 
ciate Justice  of  the  Supreme  Court.  It  proved 
not  to  be  a  Democratic  year,  and  he  was  de- 
feated. 

He  was  a  member  of  the  legislature  of  Cali- 
fnrnia  in  i8q",  and  was  recognized  as  one  of 
the  leaders  of  the  assembly. 

TJu-  irrigation  laws  of  the  State  had  resulted 
in  nuicli  dissatisfaction  and  protracted  litiga- 
tion. Judge  Bridgford  was  a  member  of  the 
committee  on  irrigation,  and  at  a  joint'  ses- 
sion of  the  irrigation  committees  of  the  senate 
and  assembly  he  was  appointed  to  remodel, 
bring  together  and  harmonize  the  various  acts 
upon  the  subject.  This  he  did  by  drafting 
and  presenting  a  bill  covering  the  whole  sub- 
ject.     This  became  and  is  now  the  law. 

In  1897  Judge  Bridgford  moved  to  San 
Francisco,  where  he  is  engaged  in  the  practice 
of   his   iirofession. 


ANSON  BRUNSON. 

This    well-remembercd    light    of    the    profes- 
sion of  law  was  born  in  Portage  county,  Ohio. 


History  of  the  Bench  and  Bar  of  California. 


671 


April  i6,  1834.  He  was  graduated  from  ihe 
University  of  Michigan  in  1857,  paying  his 
expenses  by  working  at  odd  jobs.  He  was 
admitted  to  the  bar  in  June,  1858.  In  1864  he 
came  to  California,  and  lived  at  Napa  and  San 
Francisco  for  short  periods.  He  settled  per- 
manently at  Los  Angeles  in  December,  1868. 
For  many  years  he  was  in  partnership  with 
J.  G.  Eastman,  under  the  firm  name  of  Brun- 
son  &  Eastman,  which,  after  January,  1875. 
was  Brunson,  Eastman  &  Graves.  In  the  fall 
of  1884  he  was  elected  a  Judge  of  the  Superior 
Court,  and  served  from  January,  1885,  to  April 
I,  1887,  when  he  resigned.  He  died  at  San 
Bernardino  on   the  8th   of  October,   1895. 

Judge  Brunson's  first  partner,  Mr.  East- 
man, died  many  years  before  him.  Mr.  J. 
A.  Graves,  his  only  other  associate  in  prac- 
tice, and  who  cherishes  his  memorj'.  has  kindly 
written  of  him  for  our  History,  as  follows : 

'"I  knew  him  intimately.  I  arrived  in  Los 
Angeles  on  the  5th  day  of  June,  1875,  and  went 
into  the  office  of  Brunson  &  Eastman  as  a  clerk 
and  law  student,  and  was  admitted  to  partner- 
ship by  them  on  my  admission  to  the  bar  in 
the  following  January. 

"Anson  Brunson  was  one  of  the  very  able 
men  of  this  Coast.  He  was  remarkably  quick 
at  seizing  an  advantage  during  the  trial  of  a 
case.  He  was  courteous  in  his  demeanor  to 
opposing  counsel,  the  judge,  and  witnesses, 
and  had  an  extremely  pleasing  address.  His 
voice  was  di-stinct,  low,  well-modulated,  pene- 
trating, and  under  perfect  control.  He  was 
extremely  ready-witted.  I  remember  during 
the  trial  of  a  case  wherein  a  prominent  bank 
of  Los  Angeles  sought  to  recover  of  one  of  its 
officers  and  directors  an  amount  of  money 
which  he  had  received  as  a  commission  on 
a  loan  made  by  the  bank,  about  the  time  of 
the  failure  of  the  Bank  of  California,  when  all 
the  banking  institutions  of  this  State  were  put 
to  a  very  severe  strain.  The  loan  was  a  large 
one,  and  should  not  have  been  made.  This 
bank,  like  many  others,  got  into  difficulties  at 
this  time.  Its  president  was  in  Europe.  He 
hurried  to  its  assistance,  put  it  on  its  feet,  and 
it  has  ever  since  been  the  leading  bank  of 
Southern  California.  The  jjresident  of  the 
corporation  was  testifying  to  the  low  condition 
of  the  finances  of  the  bank  at  the  time  the  loan 
complained  of  was  made,  and  his  testimony 
startled  every  one.  No  one  could  have  be- 
lieved that  the  bank  was  in  the  cmulitiiin  which 
his  facts  and  figures  showed  it  to  havr  been  in 
at  tlie  time.  Judge  Brunson,  in  that  inimitable 
style,  born   in  him.   full  ()f  serio-coniic   patbn'^. 


addressed  the  court  immediately  after  the  tes- 
timony was  given,  as  follows  : 

"Your  Honor,  will  you  please  adjourn  court 
for  a  few  minutes?  I  must  go  and  get  my 
note  out  of  that  bank.  I  cannot  have  my 
financial  integrity  imperiled  ))y  leaving  it  there 
longer." 

By  those  knowing  Brunson,  and  knowing 
his  utter  disregard  for  financial  matters,  and 
that  he  was  always  hard-pressed  for  mone}% 
the  humor  of  the  remark  can  be  fully  appre- 
ciated. 

On  aiKJiher  occasion,  while  he  was  counsel 
for  the  Southern  California  Railway,  he  was 
defending  an  action  for  damages.  The  attor- 
ney for  the  plaintiff,  whom  we  will  call  Mr. 
Blank,  in  examining  the  jury,  hung  to  them 
with  bull-dog  pertinacity,  and  got  frequent  and 
repeated  reiterations  from  them,  that  none  of 
them  had  ever  been  clients  of  Judge  Brunson. 
When  the  jury  was  passed  by  the  plaintiff  for 
cause,  Brunson  looked  up  and  addressed  the 
jury  about  as  follows: 

"Gentlemen,  from  the  intelligent  appearance 
of  this  jury,  I  deem  it  unnecessary  to  ask  any 
of  you  whether  you  have  ever  been  clients  of 
Mr.  Blank.     I  pass  the  jury  for  cause." 

Judge  Brunson  was  a  good  pleader,  belter 
than  the  average ;  but  after  he  had  prepared 
his  complaint  or  answer,  the  detail  work  of 
preparing  for  trial  was  exceedingly  distasteful 
to  him.  In  this  regard  he  was  one  of  the  most 
reckless  men  I  ever  met.  He  would  tell  a 
client  what  he  wanted  to  prove,  and  would 
never  examine  the  witnesses  beforehand,  and 
the  result  was  that  he  often  got  himself  and 
his  client  into  most  desperate  situations ;  but 
he  was  the  greatest  sprinter  I  ever  saw  in  get- 
ting out  of  a  pit  which  he  had  thus  dug  for 
himself.  Between  the  years  1870  and  1885  an 
examination  of  tlie  California  cases  will  show 
more  questions  of  practice  settled  in  appeals 
in  which  he  was  interested  than  in  appeals 
taken  by  any  other  ten  men  of  the  State ;  and 
in  every  one  of  these  cases  he  was  rcbcuing 
himself  from  some  desperate  situation. 

We  who  knew  him  best  loved  him  most. 
We  drew  the  mantle  of  charity  over  his  faults, 
and  I  he  nuniory  of  his  genial  manner  and  his 
gifted  intellect,  his  lovable  companionship,  and 
his  kindly  word  for  every  one,  will  forever 
lin"-cr  with  us." 

GEORGE  H.  BUCK. 

George  H.  Buck  is  a  n.itive  of  Maine,  where 
he   was  born    in    1847.      He   had  the  good   for- 


672 


History  of  the  BencJi  and  Bar  of  California. 


tune  to  start  in  life  with  a  broad  and  liberal 
education.  During  the  earlier  years  of  his 
manhood  he  had  charge  of  Gorham's  Semi- 
nary and  Academy  in  Maine.  His  mind  later 
took  a  legal  turn,  and,  believing  that  the  bar 
afforded  him  a  large  field  for  a  successful 
career,  he  entered  the  office  of  Woodbury  & 
Ingalls,  of  Boston.  Massachusetts,  as  a  stu- 
dent of  law.  He  was  admitted  to  the  bar  in 
that  state  in  1871.  For  some  years  he  held 
the  position  as  associate  attorney  for  the  In- 
dianapolis, Cincinnati  and  Lafayette  Railroad, 
which  position  he  resigned  in  1874.  Turning 
his  steps  westward,  he  came  to  California  and 
located  in  the  thriving  city  of  Redwood.  In 
1882  he  was  elected  district  attorney  of  San 
Mateo  county,  which  position  he  held  through 
successive  re-elections,  until  1890.  when  he 
was  nominated  and  elected  Superior  Judge 
of  San  Mateo  county.  He  was  re-elected  to 
the  same  position  in  1896.  upon  the  Demo- 
cratic ticket  in  a  strongly  Republican  county. 
Nothing  could  illustrate  better  Judge  Buck's 
popularity  and  the  high  esteem  in  which  he  is 
held  by  his  fellow  citizens. 

The  Judge  is  an  influential  leader  of  the 
Red  Men's  order,  as  well  as  of  the  Druids, 
I.  O.  O.  F.,  and  other  fraternal  societies.  He 
is  well  known  in  San  Mateo  county,  having 
practiced  law  there  some  years  before  his  ele- 
vation to  the  bench.  He  is  a  man  of  sin- 
cerity and  of  rare  probity  of  character,  and  is 
strongly  intrenched  in  the  regard  of  the  peo- 
ple. 


A.   J.   BUCKLES. 


Abraham  Jay  Buckles  was  born  in  Muncie. 
Indiana,  .\ugust  2.  1846.  He  was  sent  from 
home  to  live  on  a  farm  at  the  age  of  six  years. 
In  the  winter  season  he  attended  school. 

When  the  war  broke  out  in  1861,  he  enlisted 
in  a  company  raised  at  Muncie.  under  the  call 
of  the  President  for  volunteers  for  three 
months'  service.  He  was  not  yet  15  years  old, 
and  his  grandfather  would  not  permit  him 
to  go.  When  the  call  for  troops  to  serve 
three  years  was  made,  he  enlisted  again, 
June  21,  1861,  and,  informing  his  people  that 
he  was  determined  in  the  matter,  they  made 
no  further  opposition.  He  went  to  Washing- 
ton in  Company  E.  19th  Indiana  Infantry, 
which  afterwards  became  a  part  of  the  famous 
fighting  "Iron  Brigade"  of  the  Army  of  the 
Potomac. 

The  boy-warrior  was  destined  to  severe  or- 
deals.    In  the   second  battle  of  Bull  Run,  in 


August,  1862,  he  was  wounded  in  the  thigh. 
At  Gettysburg,  July  ist.  1863,  he  was  wounded 
in  the  shoulder.  In  this  battle  he  rescued  the 
colors  of  his  regiment,  and  so  became  color- 
bearer.  In  the  battle  of  the  Wilderness,  in 
May,  1864,  while  color-bearer,  and  leading  a 
charge  he  was  shot  through  the  body.  The 
L'^nited  States  congress  gave  him  a  medal  for 
his  gallantry  on  th'is  sanguinary  field.  At 
Hatchin  Run,  March  25,  1865,  fifteen  days 
before  Lee's  surrender,  while  in  charge  of  a 
skirmish  line,  he  was  "hot  through  the  right 
knee,  which  necessitated  the  amputation  of 
the  right  leg  near  the  body. 

The  war  over,  the  young  hero,  then  only  19, 
went  to  school,  and,  after  nine  months  of 
study,    became    a    school    teacher.      At    other 


times  he  clerked  in  stores,  and  did  whatever 
offered  for  a  livelihood,  the  while  keeping 
his  mind  on  the  law  and  reading  its  pages 
as  opportunities  came. 

He  was  also  young  when  he  married,  the 
lady  being  Miss  Louisa  B.  Conn.  Dec.  5,  1865. 
There  are  two  children  of  the  marriage,  Lola 
D.,  and  Jessie.  Coming  to  California  with 
his  family  in  1875,  he  located  at  Solano  coun- 
ty, and  began  the  practice  of  law  in  that 
year,  at  the  age  of  29. 

In  1879  he  was  elected  District  Attorney  of 
Solano  County,  and  was  re-elected  in  1882. 
In  1884  he  was  elected  Superior  Judge  of  So- 
lano, and  by  successive  expressions  of  the 
popular  will  he  has  ever  since  held  that  posi- 
tion. The  people  of  Solano  county  declare 
that  he  can  be  their  Superior  Judge  as  long 
as  it  shall  be  his  wish.     And,  too,  they  "love 


Joseph  H.  Budd 


History  of  the  Bench  and  Bar  of  California. 


675 


him   for   the   dangers   he   has   passed,   and   his 
bravery  shown." 

Judge  Buckles  is  a  member  of  the  A.  O.  U. 
W.,  I.  O.  O.  R,  K.  of  P.,  U.  A.  O.  D..  Elks. 
and  M.  O.  L.  L.  U.  S.  He  has  been  depart- 
ment Commander,  Department  of  California 
and  Nevada,  G.  A.  R. ;  Grand  Chancellor, 
Knights  of  Pythias,  Domain  of  California, 
and  is  now  a  Supreme  Representative  of  the 
last-named  order. 


JOSEPH  H.   BUDD. 


Judge  Joseph  H.  Budd  was  born  in  Dutchess 
county.  New  York,  January  22,  1822.  His 
father  was  a  farmer.  He  is  of  German  descent 
on  the  side  of  his  mother.  He  is  a  graduate  of 
Williams  College,  Massachusetts,  and  studied 
law  in  Poughkeepsie,  New  York.  He  practiced 
his  profession  as  a  lawyer  first  in  Janesville, 
Wisconsin.  Removing  from  that  state  to  Cal- 
ifornia in  1857,  he  settled  in  Stockton  in  i860. 
While  engaged  in  the  practice  there  he  was 
elected  a  Judge  of  the  Superior  Court  of  San 
Joaquin  county  in  1888,  for  an  unexpired  term. 
He  has  been  twice  re-elected  to  the  same  office 
for  full  terms.  The  Judge  is  the  father  of 
Hon.  James  H.  Budd,  who  has  been  a  member 
of  congress  from  California,  and  the  Governor 
of  the  State.  His  other  son  is  one  of  the 
regents  of  the  California  State  University. 
He    has    no    other    children. 


ALBERT  G.  BURNETT. 

Judge  Albert  G.   Burnett  was  born   in   Polk 
county.    Oregon,    April    9,    1856.      In    1858    he 


two  years  spent  in  his  native  state.  He  has 
been  a  resident  of  Sonoma  county  since  1873. 
His  father  was  a  clergyman  of  the  Christian 
church.  One  of  his  uncles  was  Peter  H. 
Burnett,  the  first  Governor  of  California,  and 
afterwards  a  Justice  of  the  Supreme  Court  of 
the   State. 

Judge  Burnett  was  a  teacher  in  the  public 
schools  of  Sonoma  county  for  nearly  ten 
years.  Among  the  positions  held  by  him  was 
that  of  principal  of  the  Healdsburg  public 
school  for  four  years,  and  of  the  Petaluma 
grammar  school  and  the  Petaluma  high  school 
for  three  years  and  a  half. 

He  was  admitted  to  the  bar  by  the  Supreme 
Court  in  January,  1887,  and  located  in  Santa 
Rosa  in  May  of  the  same  year  for  the  prac- 
tice of  law.  He  was  elected  district  attorney 
of  the  county  in  1888,  and  was  re-elected  in 
1890  by  an  increased  majority.  He  and  Judge 
Dougherty  were  chosen  Judges  of  the  Superior 
Court  at  the  election  held  in  November,  1896. 
Their  opponents  were  H.  B.  Ware,  Esq..  and 
Hon.  J.  C.  Sims. 


EDWIN  R.  BUSH. 


came    with    his    parents    to    California,    where 
he   has    since   resided,    with    the   exception    of 


Judge  Bush  was  born  October  17,  1846,  in  Co- 
piah county,  Mississippi.  He  removed  to  the 
Northern  states  in  April,  1855.  His  father,  a 
physician,  came  to  California  in  August  or 
September,  1849,  practiced  medicine  first  at 
Stockton,  and  in  1854  or  1855  went  to  San 
Francisco,  where  he  continued  the  practice  of 
his  profession  for  many  years. 

Mr.  Bush  remained  at  the  East  u/itil  Au- 
gust, 1869,  acquiring  an  education  and  prepar- 
ing for  the  practice  of  the  law,  studying  in  the 
offices  of  several  prominent  practitioners  in 
New  York  and  Michigan.  He  attended  the 
session  of  1865-66  of  the  law  school  of  the  Uni- 
versity of  Michigan,  and  the  sessions  of  1867- 
68  and  1868-69  of  the  University  of  Virginia, 
graduating  from  the  latter  institution  July  3, 
1869.  with  the  degree  of  B.  L.  He  arrived  in 
California  in  the  latter  part  of  August  1869. 
and  was  admitted  to  practice  by  the  Supreme 
Court  of  California  in  December  of  that  year. 
He  reniDved  to  Yolo  county  in  May,  1870.  for 
till'  practice  of  law,  and  has  resided  there  ever 
^inci.-. 

In  1871  he  was  elected  |)ublic  administrator, 
and  held  the  office  for  three  years.  In  1875 
he  was  elected  .County  Judge  for  four  years, 
and  served  the  term  ;  and  in  1879  was  electetl 
Superior  Judge  for  the  first  term  under  the 
new  constitution,  and   hold   tlic  office   for  five 


676 


History  of  the  Bench  and  Bar  of  California. 


years.      In    1898  he   was  elected   to  his  present 
(iffice  of  district  attorney,  for   four  years. 


JAMES  V.  COFFEY. 

James  \'incent  Coffey,  Superior  Judge  since 
1883,  was  born  in  New  York  City,  on  the 
14th  day  of  December,  1846.  He  was  employed 
in  that  city  in  a  law  office  for  five  years  prior 
to  coming  to  California.  He  is  of  Irish  par- 
entage. His  early  education  was  accjuired  at 
Bridgeport,  Conn.,  where  he  was  a  close  stu- 
dent in  many  departments  of  learning.  His 
father  was  by  occupation  a  farmer  and  mer- 
chant. The  Judge  came  to  California  in  1863. 
He  prosecuted  his  studies  at  Nevada  City,  one 
of  his  preceptors  being  W.  E.  F.  Deal,  since 
distinguished  in  law  and  politics  in  Nevada 
state,  and  now  at  the  bar  of  San  Francisco. 
Under  Mr.  Deal  he  became  a  good  Latin  and 
general  scholar.  He  subsequently  passed  some 
years  in  Virginia  City.  Nevada,  where  he  was 
clerk  in  the  leading  law  firm  of  Corson  & 
White.  (Captain  Martin  White  now  lives  in 
San  Francisco,  retired.  Dighton  Corson  be- 
came Chief  Justice  of  the  Supreme  Court  of 
South  Dakota.)  In  San  Francisco  he  was 
employed  in  the  office  of  Casserly  &  Barnes 
(  Hon.  Eugene  Casserly  and  General  W.  H.  L. 
Barnes)  for  some  two  years.  1867-69.  During 
all  this  time  he  had  been  reading  law  dili- 
gently, and  was  admitted  to  the  bar  of  the  Cali- 
fornia Supreme  Court  in  1869.  receiving  some 
very  complimentary  expressions  from  the  ex- 
amining judges.  In  the  early  period  of  his 
professional  career  he  was  for  some  si.x  years 
an  editorial  writer  on  the  San  Francisco  Daily 
Examiner.  In  1879  h^  ^vas  chairman  of  the 
Democratic  county  convention  of  San  Fran- 
cisco. In  that  year  the  Democratic  State  con- 
vention unanimously  nominated  him  for  attor- 
ney-general, but  he  declined.  In  1882  he  was 
elected  Judge  for  an  unexpired  term,  and  for 
the  succeeding  full  term  of  six  years,  on  the 
bench  of  the  Superior  Court.  He  was  re- 
elected for  a  full  term  in  1888,  and  again 
in  1894.  He  was  presiding  Judge  of  the  court 
in  1887.  He  was  elected  again  for  a  full  term 
in   November.   1900. 

After  nearly  a  year's  service  in  a  general 
civil  department,  he  was  assigned  to  the  pro- 
bate department  of  the  court. 

There  were  twelve  Judges  of  the  court  then, 
as  now,  but  only  one  of  the  departments  was 
devoted  to  probate  business.  Since  the  year 
of  1889  part  of  the  i)robate  business  has  been 


diverted  to  another  department.  Judge  Cof- 
fey's service  in  probate  has  far  exceeded  that 
of  any  other  Probate  Judge  the  State  has 
ever  had,  but  there  are  six  Superior  Judges 
in  the  State  whose  periods  on  the  bench  have 
l)een  a  little  longer  than  Judge  Coff'ey's,  and 
who  exercise  probate  powers  with  their  general 
jurisdiction.  Judge  Coffey's  department  is 
probate  strictly.  His  decisions,  down  to  1888. 
were  published  by  T.  J.  Lyons  and  Edmund 
Tauszky.  Two  more  volumes  are  in  prepara- 
tion. 

Judge  Coffey  was  twice  elected  a  member  of 
the  assjcmbly  from  5an  Francisco,  serving  at 
I  Ik-  legislative  sessions  of  1875-76  and  1877-78. 
lie  was  made  chairman  of  the  San  Francisco 
delegation  at  both  sessions.  He  was  also  an 
industrious  nienibcr  of  the  judiciary  com- 
mittee. 

Judge  Coffey,  in  addition  to  his  legal  knowl- 
edge, has  a  large  fund  of  general  learning.  He 
has  excellent  literary  tastes,  and  is  a  great 
lover  of  books.  He  has  been  since  1893  Presi- 
dent   of    the    California    Historical    Society. 

In  1890  he  was  one  of  the  candidates  for 
Justice  of  the  State  Supreme  Court,  but  was 
defeated  with  his  party.  The  Judge  is  a 
man  of  excellent  habits,  capable  of  long  con- 
tinued exertion,  very  methodical  and  painstak- 
ing. He  has  the  habit  of  taking  full  notes  in 
long-hand  of  the  testimony'  of  witnesses  before 
him. 

His  integrity  is  a  proverb.  The  man.  on 
or  off  the  bench,  cannot  be  pointed  out.  who 
loves  truth  more  or  follows  dutj'  closer.  The 
public  sentiment  insists  that  he  shall  remain 
in  his  present  position  as  long  as  he  desires, 
unless  he  leaves  it  to  take  a  seat  on  the  Su- 
preme bench.  His  elevation  to  that  bench  is 
generally  looked  for,  and  is  altogether  proba- 
ble. Only  in  a  court  of  last  resort  can  a  judicial 
mind  of  such  sharp  sight  and  wide  survey, 
searching  the  springs  of  human  action  and 
reading  the  enigmas  of  human  temperament, 
find  its  proper  forum. 

The  Judge  is  a  bachelor.  He  has  lost  two 
brothers  in  California.  His  nephews.  Jere- 
miah V.  Coffey  and  Edward  I.  Coffey,  are  men 
of  character  and  standing,  widely  known  in  the 
State. 

Judge  Coffey  has  a  rich  vein  of  humor,  and 
has  said  more  witty  things  from  the  bench 
than  any  other  Judge  in  our  State  history.  In 
the  command  of  language  he  is  exceptionally 
gifted,  being  remarkable  for  nicety  and  ex- 
actness of  expression. 


James    V.    Coffzy 


History  of  the  Bench  and  Bar  of  California. 


679 


We  had  occasion  to  say  of  Judge  Coffey, 
after  he  had  been  on  tlie  bench  a  few  years, 
that  "having  impressed  his  mind  on  the  legis- 
lation of  the  State,  while  the  head  of  the  San 
Francisco  delegation  in  the  assembly,  he  has 
since  so  crowned  the  bench  with  honor  as  to 
show  this  is  his  peculiar  station.  And  he 
possesses  so  deep  an  insight  into  human  char- 
acter that  he  seems  to  learn  by  heart  every  one 
with  whom  he  is  called  to  deal." 

A  statement  of  the  great  Blythe  case  will 
be  found  in  the  sketch  of  General  W.  H.  H. 
Hart.  A  jury  being  waived,  the  trial  occu- 
pied Judge  Coffey  for  one  year,  after  which 
he  gave  four  weeks  to  a  close  study  of  the 
large  mass  of  evidence.  On  July  31,  i8go,  he 
rendered  his  decision,  which  comprised  about 
125,000  words.  The  editor  of  this  History  had 
the  pleasure  of  being  present  on  the  interesting 
occasion.  General  W.  H.  L.  Barnes,  William 
F.  Herrin,  and  many  other  prominent  law- 
yers were  close  observers,  in  addition  to  the 
great  array  of  counsel  in  the  case.  General 
Barnes,  w-ho  came  early,  remarked  that  al- 
though he  was  not  an  attorney  in  the  case,  he 
regarded  the  decision  about  to  be  pronounced 
as  the  event  of  a  lifetime.  Some  ladies  were 
in  attendance,  including  those  most  interested, 
the  one  claiming  to  be  the  widow,  and  Flor- 
ence, the  heiress.  Florence  was  then  in  her 
seventeenth  summer. 

Judge  Coffey,  on  taking  the  bench,  referred 
to  his  custom  of  simply  placing  his  decisions 
on  file  in  the  clerk's  office,  where  the  attor- 
neys, and  others  interested,  might  examine 
them  at  convenience.  He  had  determined  in 
this  Blythe  case  to  read  his  opinion,  but  would 
abbreviate  by  omitting  the  formal  parts  and 
the  numerous  exhibits.  He  had  prepared  two 
full  opinions  in  the  eight  cases  into  which  this 
controversy  was  divided,  and  also  had  writ- 
ten briefer  opinions  on  the  collateral  cases. 

Judge  Coffey  was  voted  for  in  the  Califor- 
nia legislature  of  1899,  as  Democratic  candi 
date  for  United  States  senator.  He  was  ten- 
dered the  Democratic  nomination  for  congress 
in  the  Fourth  district  on  the  Democratic  ticket 
in  September,  1900.  but  declined. 

We  had  some  correspondence  willi  .1  very 
excellent  and  scholarly  man,  a  Judge  of  the 
San  Francisco  Superior  Court,  on  the  subject 
of  Judge  Coffey  in  connection  with  our  "Bench 
and  Bar"  sketches  of  a  decade  ago.  "I  would 
deprecate,"  that  jurist  wrote  to  us  then,  "any 
too  great  stress  upon  the  struggles  of  Judge 
Coffey's  life,  which  he  has  borne  more  man- 


fully than  most  men— than  myself.  I  know— 
and  yet  it  is  the  temper  which  he  has  brought 
unsoured  out  of  his  battles  that  is  his  chief 
proof  of  manliness." 


CARROLL  COOK. 


Carroll  Cook,  one  of  the  twelve  Superior 
Judges  of  San  Francisco,  was  born  in  that 
city  in  January.  1855.  A  sketch  of  his  father, 
Elisha  Cook,  who  maintained  a  high  fame  at 
that  bar  for  a  goodly  period,  will  be  found  in 
this  History.  Carroll  Cook  was  educated  in 
the  public  schools  of  San  Francisco,  and  at 
Union  University.  He  was  admitted  to  the 
bar  of  the  California  Supreme  Court  in  1874, 
and  practiced,  principally  in  criminal  cases,  for 
about  twenty  years.  In  1876-77  he  was  in 
partnership  for  about  one  year  with  John  Lut- 
trell  Murphy,  who  was  afterwards  city  attor- 
ney, and  in  1890-91  with  John  E.  Foulds.  He 
was  first  assistant  United  States  attorney 
under  Hon.  S.  G.  Hilborn,  1883-86. 

Judge  Cook  was  elected,  as  a  Republican,  a 
Judge  of  the  Superior  Court  in  November, 
1896.  for  a  full  term  of  six  years,  which  will 
end  in  January.   1903. 

The  Judge  was  married  in  1876.  and  is  now 
a  widower,  Mrs.  Cook  having  departed  this 
life  in  March,  1899.  He  has  two  young  daugh- 
ters living.  Mrs.  Cook  was  a  daughter  of  the 
late  W.  W.  Stow. 


N.  P.  CONREY. 


N.  P.  Conrey,  elected  a  Judge  of  the  Su- 
perior Court  of  Los  Angeles  county  at  the 
general  election  in  November.  1900,  was  born 
in  Indiana,  June  30,  i860.  He  received  his 
earlj'  educatiim  in  the  cununon  schools  at 
Shelbyville.  in  tliat  state,  and  in  1881  he  was 
graduated  from  tlie  iiidi.ina  .\sbury  (now  De 
Pauw )  University.  He  began  the  study  of 
law  in  that  year,  at  Indianapolis,  in  the  office 
of  Hon.  Joseph  E.  McDonald,  who  was  at  one 
time  United  States  senator.  In  October.  1882, 
lie  entered  the  senior  class  of  the  law  scliool 
lit  the  l^niversity  of  Michigan,  and  was  grad- 
n.'itt'd  willi  his  class  in  tlie  following  year. 

Judge  Conrey  came  to  California  in  the 
spring  of  1884.  Settling  in  Los  Angeles,  he 
has  always  since  lived  there,  engaged  in  the 
practice  of  law.  excepting  a  few  years'  resi- 
dence in  Pasadena  in  the  same  county. 

lie  was  elected  the  first  city  attorney  of 
Pasadena,  and  served  a  term  of  two  years, 
1 886- 1 887. 

During  the  years   1897-fjS  tiie  Judge  was  a 


680 


History  of  the  Bench  and  Bar  of  California. 


member  of  the  city  board  of  education  of  Los 
Angeles,  representing  the  second  ward.  Ik- 
represented  the  seventy-fifth  assembly  district 
in  the  legislature  of  iSgy,  and  at  the  special 
session  of  1900.  At  the  latter  session  he  aided 
m  bringing  the  long  deadlock  to  an  end  by  the 
election  of  Hon.  Thomas  R.  Bard  to  the 
United  States  senate.  His  bill  for  reform 
of  the  civil  service  of  the  State  failed  of  pass- 
age. 

The  Los  Angeles  Express,  after  the  election 
of  Judge  Conrey  to  his  present  position,  said 
of  him.  as   follows  : 

"As  a  lawyer,  the  new  Judge  has  by  his 
conduct  held  the  respect  of  the  members  of  the 
bar,  and  it  is  largely  to  their  good  opinion 
that  he  is  indebted  for  his  promotion  to  a 
place  on  the  bench.  His  record  gives  promise 
of  a  bright  and  useful  career,  and  we  have  no 
doubt  that  when  his  short  term  expires,  the 
good  people  of  tins  county,  regardless  of  party, 
will  ask  him  to  remain.  This  will  be  in  line 
with  the  policy,  as  to  local  political  oflfices,  ad- 
vocated by  this  paper  early  last  summer,  and 
now,  of  electing  the  right  man,  and  when  once 
elected,  keeping  him  there,  so  long  as  he  is  both 
honest  and  capable,  no  matter  what  party  may 
claim   his    allegiance." 

Judge  Conre3''s  judicial  term  will  expire  in 
the  first  week  of  January,  1903.  It  may  be 
mentioned  right  here  that  he  and  his  brother 
of  the  Superior  bench,  Hon.  M.  T.  Allen,  were 
former  law  partners  in  Los  Angeles. 

The  Judge  was  for  a  time  professor  of  medi- 
cal jurisprudence  in  the  College  of  Medicine, 
University  of  Southern  California.  He  is  a 
Knight  Templar,  and  is  married,  and  has  a  son 
and  a  daughter. 


JOHN  M.  CORCORAN. 

John  ]\I.  Corcoran,  Judge  of  the  Superior 
Court  of  Mariposa  county,  California,  was 
born  in  Covington.  Kentucky,  June  2^.  1834. 
His  parents  were  natives  of  Ireland.  When 
he  was  three  years  old  his  parents  moved,  with 
him.  to  Cincinnati,  Ohio,  where  he  was  edu- 
cated in  the  district  and  Hughes  High  School. 
During  liis  attendance  at  the  High  School 
he  read  a  number  of  books  of  law.  He 
crossed  the  plains  to  Salt  Lake  City  in  1854, 
and  came  to  California  in  1855.  He  pursued 
mining  and  other  avocations  until  he  was 
admitted  to  the  bar  in  i860.  From  that  date 
he  practiced  law  in  Mariposa  and  adjoining 
counties,  until  1865,  when  he  went  to  Idaho 
and  followed  his  profession  for  six  months. 
Returning   to    Mariposa,    he    was    elected    dis- 


trict attorney,  and  served  during  llie  years 
1866  and  1867.  He  was  elected  County  Judge 
in  187 1,  and  was  re-elected  in  1875,  serving 
eight  years.  In  1879  he  was  elected  Judge  of 
the  Superior  Court,  and  re-elected  in  1884, 
1890  and   1896.     He  is  still  the  incumbent  of 


that  otitice.  He  is  one  of  the  six  Superior 
Judges  who  were  elected  when  that  court  was 
created,  in  1879,  and  adding  his  two  terms 
as  County  Judge,  he  has  been  on  the  bench 
twenty-nine   consecutive   years. 


JOHN    F.    DAVIS. 

John  F.  Davis  is  a  native  of  California,  hav- 
ing been  born  on  Angel  island.  Marin  county, 
June  5,  1859.  When  he  was  nine  years  of  age, 
the  family  moved  to  San  Francisco,  where  he 
attended  the  North  Cosmopolitan  (now  Han- 
cock) grammar  and  boys'  high  school,  at  the 
latter  of  which  he  was  graduated  in  1876.  In 
1872-73  the  family  went  abroad,  and  young 
Davis  attended  the  village  school  in  Germany 
in  Glucksburg  and  Flensburg  for  about  a  year. 
After  a  post-graduate  course  in  the  San  Fran- 
cisco high  school,  he  entered  Harvard  College 
in  1877,  and  was  graduated  at  that  institution 
in  1881,  with  high  honors,  and  was  one  of  the 
commencement    speakers. 

Returning  to  California,  he  attended  the 
Hastings  College  of  the  Law  for  three  years, 
and  was  graduated  in  1884,  immediately  after 
which  he  was,  with  the  entire  class,  admitted 
by  the  Supreme  Court  of  California  to  prac- 
tice in  all  the  courts  of  the  State,  upon  mo- 
tion of  Professor  J.   N.   Pomeroy. 

After  practicing  for  a  while  in  San  Fran- 
cisco, he  went  on  a  two  years'  trip  abroad, 
during  which  he  attended  the  lectures  at  the 


i 

HK 

IB 

i^^^l 

W^rY/ram  9^.  Daingerfield 


History  of  the  Bench  and  Bar  of  California. 


683 


University  of  Berlin,  and  at  the  Ecoledes 
Sciences  Politiques,  in  Paris,  and  traveled 
throughout  Europe. 

Returning  home,  he  settled  in  Calaveras 
county,  where  his  brother  was  opening  and 
conducting  mining  operations  at  the  Esmeralda 
mine,  and  after  being  connected  with  much 
important  litigation  through  the  firm  of  Gar- 
ber,  Boalt  &  Bishop,  in  cases  which  took  him 
east  and  to  Alaska  on  important  missions,  he 
went  to  the  Samoan  islands  to  represent  the 
American  land  claims  before  the  Samoan  land 
commission. 

In  1890,  as  chairman  of  the  Calaveras  dele- 
gation, he  made  the  fight  for  the  nomination 
of  John  B.  Reddick  as  Lieutenant-Governor, 
and  later  in  the  campaign,  in  company  with 
George  G.  Blanchard,  of  El  Dorado  county, 
canvassed  the  second  congressional  district 
in  advocacy  of  the  election  of  Markham  and 
Reddick.  In  1892  Judge  Davis  defeated  Grove 
L.  Johnson  by  the  decisive  vote  of  sixty-five  to 
thirty-six  for  the  Republican  nomination  for 
congress,  but  was  himself  defeated  in  the  cam- 
paign   which    followed. 

Shortly  after  his  defeat  for  congress.  Gover- 
nor Markham  appointed  him  Judge  of  the 
Superior  Court  of  Amador  county,  to  which 
county  he  thereupon  removed.  In  his  wearing 
of  the  ermine  for  two  years.  Judge  Davis 
gained  a  well-merited  reputation  for  the  fair- 
ness, the  impartiality,  and  the  correctness  of 
his  rulings.  At  the  end  of  the  term  of  his 
appointment.  Judge  Davis  declined  to  allow 
his  name  to  be  presented  to  the  convention 
as  a  candidate  for  Superior  Judge,  but  an- 
nounced his  determination  to  confine  himself 
to  the  practice  of  the  law.  This  resolution  he 
has  steadfastly  adhered  to,  and  has  built  up  a 
large  and  remunerative  practice,  not  simply  in 
Amador,  but  also  in  Calaveras  and  San  Fran- 
cisco. He  has  made  a  specialty  of  mining  and 
water    rights    litigation. 

In  1898  the  Republican  convention  of  the 
fourteenth  senatorial  district,  comprising  the 
counties  of  Amador,  Calaveras,  Alpine  and 
Mono,  nominated  Judge  Davis  for  state  sena- 
tor by  acclamation,  and  very  much  against 
his  inclination  he  accepted  the  nomination  and 
was  elected  to  that  important  office,  which  he 
still  holds.  He  was  appointed  chairman  of 
the  committee  on  mines,  drainage  and  debris. 
He  at  once  impressed  his  personality  on  the 
senate  as  a  tireless  legislator,  a  keen  debater, 
a  resourceful  parliamentarian,  and  one  of  the 
most  eloquent  orators  of  the  State.  As  a  sen- 
ator  his   strength   and   ability  have   been   most 


conspicuous  in  his  unrelenting  hostility  to 
vicious  legislation.  Holding  this  office  at  a 
considerable  sacrifice  to  his  business  interests, 
he  has  always  strenuously  contended  that  men 
of  education  have  no  right  to  shirk  the  respon- 
sibilities of  active  public  life,  and  that  in  any 
attempt  to  do  so  they  will  prove  themselves 
recreant  to  all  sense  of  public  spirit  and  civic 
duty. 

Judge  Davis  is  married,  and  has  a  family  of 
two  children.  He  is  a  member  of  the  Harvard 
Club  of  San  Francisco,  the  Greek  Letter  Fra- 
ternity of  Beta  Theta  Pi,  the  Union  League 
Club,  and  the  Native  Sons  of  the  Golden 
West. 

WILLIAM    R.    DAINGERFIELD. 

William  Raymond  Daingerfield  was  born  in 
Shasta,  California,  on  June  9,  1857.  In  1865 
he  came  to  San  Francisco,  was  educated  in  the 
public  schools  of  that  city,  and  was  grad- 
uated from  the  University  of  California  at 
Berkeley  in  1878.  He  was  a  member  of  the 
first  class  of  Hastings  College  of  the  Law, 
under  the  tutelage  of  Professor  John  Norton 
Pomeroy,  and  was  admitted  to  the  bar  in  Oc- 
tober, 1879.  He  was  associated  in  the  prac- 
tice of  the  law  with  Wallace,  Greathouse  & 
Blanding  and  with  O'Brien,  Morrison  &  Dain- 
gerfield, of  which  latter  firm  he  was  the  junior 
member.  In  1892  he  was  elected  to  the  Superior 
bench,  to  fill  a  vacancy  caused  by  the  death  of 
Hon.  J.  P.  Hoge.  In  1894  he  was  elected  Supe- 
rior Judge  for  a  full  term  of  six  years.  At  the 
latter  election  the  successful  candidates  for 
nuuiicipal  oflnces  were,  in  the  main.  Repub- 
lican, yot  till-  two  Judges  of  the  Superior 
Court  highest  at  the  polls  were  Hon.  James 
V.  Coffey  and  Hon.  William  R.  Daingerfield, 
whose  political  affiliations  were  Democratic. 

Judge  Daingerfield  is  a  man  of  strong  judi- 
r:ial  temiterament,  and  has  been  called  "Judge" 
by  his  companions  since  his  infancy.  His  fa- 
ther. Judge  William  Parker  Daingerfield,  was 
a  Virginian,  and  his  mother,  Eliza  Raymond 
Daingerfield,  was  born  in  Vermont.  The  elder 
Judge  Daingerfield  occupied  the  bench  of  the 
Ninth  and  Twelfth  Judicial  districts  at  va- 
rious times  from  1854  to  1879,  under  the  old 
judicial  system,  and  was  the  first  presiding 
Judge  of  the  Superior  Court  of  the  city  and 
county  of  San  Francisco  at  the  lime  of  his 
death,  in  May,  1880.  A  sketch  of  him  appears 
in   this  History. 

The  present  Judge  Daingerfield  is  a  man  of 
wide  information  and  great  versatility.  Dur- 
ing   his    college    experiences    at    Berkeley    he 


684 


History  of  the  Bench  and  Bar  of  California. 


developed  a  fondness  for  mechanical  and 
mat4iematical  pursnits,  and  worked  as  a  prin- 
ter and  proof-reader  in  the  college  printing 
office,  with  several  associates,  who  afterwards 
became  locally  prominent  in  public  life,  nota- 
bly Hon.  Charles  W.  Slack  and  J)r.  A.  A. 
D'Ancona.  Judge  Daingerfield  also  mastered 
the  art  of  practical  telegraphy,  and  became  an 
expert  operator.  His  mathematical  and  scien- 
tific recreations  extended  over  a  wide  range, 
and  in  surveying  and  astronomy  he  stood  at 
the  head  of  his  class.  In  certain  feats  of  men- 
tal arithmetic  the  Judge  seems  to  be  a  prodigy, 
although  he  disclaims  the  ability  to  add  a 
column  of  figures  with  even  ordinary  speed 
and  accuracy.  He  can  mentally  compute  the 
date  Easter  will  fall  on  in  any  given  year, 
tell  what  time  approximately  the  moon  rose 
on  a  given  evening,  and  instantaneously  deter- 
mine the  day  nf  ilu'  week  on  which  any  date 
fell  ur  will  fall.  He  has  also  made  contribu- 
tions of  great  value  to  the  art  of  nautical  as- 
tronomy. Of  late  3xars  he  has  become  inter- 
ested in  the  higher  aspects  of  the  game  of 
whist.  He  is  a  well-known  contributor  to 
whist  journals  and  whist  columns,  under  his 
reversed  initials,  "D.  R.  W.,"  and  he  belongs  to 
what  is  technically  known  as  the  '"New 
School,'  at  variance  witji  llu-  iraditiona!  school 
of  "Cavendish"   and   Pole. 

In  his  judicial  work.  Judge  Daingerfield  is 
rapid  and  indefatigable.  lie  never  forgets, 
in  his  demeanor  toward  the  members  of  the 
bar  that  he  is  their  servant,  not  their  master. 
On  the  bench  his  manner  is  military  and  pon- 
derously courteous,  but  at  other  times  he  is 
usually  in  lighter  vein. 

Most  of  his  experience  has  been  had  in  the 
trial  of  jury  cases.  Few  of  them  have  been 
sensational  or  of  great  public  interest.  The 
taxpayer  suit  of  Mock  vs.  Santa  Rosa,  an 
equity  case  determining  the  liability  of  public 
officers  for  official  misfeasance,  is  a  striking 
exception.  The  recent  case  of  Wall  vs.  Mines, 
involving  the  rights  of  claimants  to  an  alleged 
charitable  use,  is  another  instance  of  Judge 
Daingerfield's  abilities  as  a  chancellor,  which 
he  has  had  too  few  opportunities  to  display. 


J.    W.    DAVIS. 

Ex-Judge  J,  W.  Davis,  of  Tulare,  was  born 
at  Norristown,  Pennsylvania,  on  June  20,  1845, 
He  is  descended  from  Revolutionary  stock, 
his  grandfather,  Captain  John  Davis,  having 
been  an  officer  in  the  army  under  Washington. 
His  great  grandfather.  John  Morton,  was  a 
signer  of  the  Declaration  of  Independence,  and 


gave  the  casting  vote  of  Pennsylvania,  whose 
delegation  in  the  continental  congress  was. 
without  him.  evenly  divided,  thus  placing  hi. 
State  in  favor  of  the  declaration,  dropping  i> 
as  the  last  block  into  the  arch  of  liberty,  giving 
it  the  name  of  the  "Keystone  State,"  and  mak- 
ing the  endorsement  the  unanimous  act  of  the 
thirteen  colonies. 

Judge  Davis  received  his  early  education  in 
the  .schools  of  his  native  town,  and  after- 
wards was  for  three  years  a  pupil  in  the 
high  school  at  Lawrenceville,  N.  J.  While 
there  he  enlisted  in  the  L'nion  army,  at 
the  time  of  the  Confederate  raid  into 
Pennsylvania,  in  the  year  1864,  and  when  dis- 
charged at  the  expiration  of  his  term  of  ser- 
vice, he  returned  to  school.  Six  weeks  later 
he  was  graduated  with  the  first  honor  of  his 
class.  In  less  than  a  year  and  a  lialf  thetc- 
after  he  re-entered  the  institution  as  an  in- 
structor, and  passed  nearly  six  years  in  that 
position,  devoting  his  spare  time  to  the  study 
of  law,  under  Charles  E.  Green.  L.L  D.,  of 
Trenton,  N.  J. 

He  was  admitted  to  the  bar  by  the  Supreme 
Court  of  New  Jersey  in  1871,  and  soon  there- 
after turned  his  steps  westward.  Rut  a  short 
time  elapsed  until  he  was  induced  to  return 
to  the  East,  and  there  accepted  a  position  as 
partner  with  Judge  J.  D.  Bartine.  at  Somer- 
ville,  N.  J.,  where  he  spent  some  years  in 
active  and  successful  practice. 

In  1881  he  went  to  Arizona,  and  in  1882  he 
was  appointed  probate  judge  of  Pinal  county, 
by  the  Governor.  In  the  fall  of  the  same 
year  he  was  elected  to  the  territorial  council, 
where  he  was  chairman  oT  the  judiciary  com- 
mittee. 

In  1884  the  Judge  came  to  California,  and 
settled  in  Santa  Rosa,  where,  the  following 
year,  he  was  appointed  deputy  district  attor- 
ney. He  served  in  that  capacity  till  1886,  when 
he  removed  to  Tulare,  where  he  still  resides. 
Here  a  partnership  was  formed  between  him 
and  J.  A.  Allen,  which  continued  till  the  elec- 
tion of  the  latter  to  the  district  attorneyship  of 
the  county,  in  i8g8.  when  they  were  the  oldest 
law  firm  in  the  county.  This  election  com- 
pelled their  dissolution,  since  which  time  Judge 
Davis  has  handled  alone  what  has  grown  to  be 
a  successful  and  profitable  law  business. 

In  1890  he  was  nominated,  without  effort  on 
his  part  and  without  opposition,  as  the  Repub- 
lican candidate  for  Superior  Judge  of  Tulare 
county,  and  made  a  very  complimentary  though 
unsuccessful  run,  his  party  being  largely  in  the 
minority  in   that  county. 


Edivin  cA.  Da^vis 


History  of  the  Bench  and  Bar  of  California. 


687 


In  1884  he  was  nominated  for  the  assembly, 
and  was  elected. 

He  has  been  prominent  in  G.  A.  R.  circles 
and  in  the  Masonic  fraternity,  and  has  been  a 
Mason  for  over  thirty  years,  having  passed 
through  the  chairs  and  become  a  past  master 
in  two  states. 

He  is  a  studious,  careful  practitioner,  pre- 
ferring to  keep  his  clients  out  of  litigation 
rather  than  to  extricate  them,  even  in  a  satis- 
factory manner,  after  they  have  become  in- 
volved. His  record,  as  legislator,  lawyer,  and 
judge,  is  without  spot. 


EDWIN    A.    DAVIS. 


Edwin  A.  Davis,  Superior  Judge  of  Yuba 
and  Sutter  counties,  was  born  on  the  30th  day 
of  June,  1839,  in  Livingston  county.  New 
York.  At  the  age  of  ten  years  he  was  throwii, 
upon  his  own  resources,  and  began  business 
by  working  in  summer  on  a  farm  for  $5.00 
per  month,  while  in  winter  he  did  chores 
for  his  board  and  went  to  school.  At  the  age 
of  seventeen  he  began  school  teaching,  and 
in  1859  entered  the  State  Normal  College  at 
Albany.  In  1861  he  enlisted  in  Company  G, 
of  the  Twenty-seventh  New  York  infantry, 
under  Colonel  Slocum,  afterwards  Major  Gen- 
eral Slocum,  and  participated  in  the  first  battle 
of  Bull  Run,  where  he  was  disabled  and  was 
soon  after  discharged  and  sent  home.  As 
soon  as  he  was  able  he  re-entered  the  Normal 
College  and  was  graduated  therefrom  in  1864. 
Shortly  after  his  graduation  he  was  chosen 
principal  of  the  Yates  Polytechnic  Institute  of 
Chittenango,  and  had  been  in  charge  thereof 
about  three  months  when  he  resigned  to  ac- 
cept the  chair  of  higher  mathematics  in  Clin- 
ton Liberal  Institute  at  Clinton,  Oneida  county, 
to  which  he  had  been  elected. 

Here,  on  January  ist,  1865,  he  married  Miss 
Imogene  Waggoner,  daughter  of  Rev.  W.  H. 
Waggoner,  a  Universalist  clergyman,  the  lady 
holding  a  corresponding  position  in  the  fe- 
male department  of  the  institute  named.  Here, 
also,  in  October,  1868,  was  born  to  them  their 
only  child,  Wm.  H.  Davis,  who  is  now  the 
executive   secretary  of   Governor   Gage. 

In  1867,  Judge  Davis  received  from  Ham- 
ilton College  the  degree,  in  course,  of  bachelor 
of  laws,  which  entitled  him  to  practice  law  in 
all  the  courts  of  New  York.  At  the  end  of 
the  year  1868,  he  and  his  wife  resigned  their 
positions  in  the  institute,  and  soon  thereafter 
started  for  California,  arriving  in  San  Fran- 
cisco bv  steamer  on   March    iSth,    1^(^)0.     They 


at    once    proceeded    to    Marysville,    and    have 
ever   since   resided   in    Yuba   county.     During 
the  first  five  months  of  his   residence  in   this 
State,  Judge  Davis  taught  school  at  Campton- 
ville,    at    the   close    of    which    period    he    was 
elected  a  teacher  in  the  city  schools  of  Marys- 
ville.     Here   he   taught   until    the  end   of   the 
school    year,    July,    1870,    when    he    formed    a 
law  partnership  with  Eastman  &  Merrill,  under 
the  new  firm  name  of  Eastman,  Merrill  &  Da- 
vis.     The    firm    then    opened    a    branch    office 
at    Colusa,    under     the     management    of     its 
junior    member.      This    business    arrangement 
lasted    but    a    few    months,    however,    and    in 
February,    1871,    the   junior   member    returned 
to  Marysville  and  opened  an  office  by  himself 
and   has   since  conducted  business  alone.     In 
the  fall  of  1871  he  was  elected  district  attorney 
of  Yuba  county,  on  the  Republican  ticket,  and 
was  re-elected  in   1873.     He  was  not  a  candi- 
date in  1875,  but  in  1877  he  was  again  elected 
to   that   office.      In    1879   he   was   elected   joint 
senator    from    Yuba    and    Sutter    counties    by 
over  500  majority.     During  his  term  as  sen- 
ator,  he   was   chairman  of   the   committee  on 
education,  and  was  a  member  of  the  judiciary 
and   other   committees.      In    1887    he    received 
from    Tufts    College,    of    Boston,    Mass.,    the 
honorary  degree  of  master  of  arts. 

He  was  appointed  by  Governor  Markham, 
Judge  of  the  Superior  Court  of  Yuba  and 
Sutter  counties  in  1891  to  fill  the  vacancy 
.  caused  by  the  death  of  Hon.  Phil.  W.  Key- 
ser,  and  two  years  thereafter  was  elected  to 
fill  the  unexpired  term.  At  the  end  of  that 
term  he  was  again  elected  and  is  now  serving 
his  second  term. 

The  foregoing  .sketch  of  Judge  Davis  is 
taken,  substantially,  from  "A  Memorial  and 
Biographical  History  of  Northern  California." 
published  at  Chicago,  in  1871,  by  the  Lewi.e 
!'nl)li>hing  Company. 

W.  S,   i).\V. 

W.  S.  Day.  Judge  of  the  Superior  Court  of 
the  county  of  Santa  Barbara,  was  born  in 
Smith  county.  Tennessee,  March  14.  1848.  In 
1859  he  went  with  his  parents  to  .Arkansas, 
and  thence  in  April.  iS()i.  to  Union  county, 
Illinois.  He  was  admitted  to  practice  by  the 
Supreme  Court  of  that  slate  at  its  June  ses- 
sion. 1874.  and  by  the  Supreme  Court  of  the 
United  States  in  October,  1883.  He  was 
State's  attorney  for  his  county  from  1876  to 
1880.  and  a  member  of  the  Illinois  legislature 
in  1887-8.    He  came  to  California  in  June,  1888, 


688 


History  of  the  Bench  and  Bar  of  California. 


and    located   at    Santa    Barbara.      He   was   ap- 
pointed Judge  of  the  Superior  Court  in  April, 


1897.  to  fill  the  vacancy  occasioned  by  the 
resignation  of  Hon.  W.  B.  Cope,  and  was 
elected  to  succeed  himself  in  November,  1899. 


W.  F.  FITZGERALD. 


General  W.  F.  P'itzgerald  had  become  dis- 
tinguished in  several  lines  or  s])heres  before  he 
settled  in  California.  His  activity  in  our  State 
has  been  consonant  with  lus  previous  career. 

He  was  born  at  Jackson,  Mississippi,  on  the 
"th  of  February,  1846.  His  earliest 'education 
was  received  at  a  private  school,  which  he  left 
at  the  age  of  twelve  years  to  enter  St.  Mary's 
College  in  Kentucky.  While  he  was  in  that 
institution  the  Civil  War  opened,  and  he  en- 
listed, on  the  J/th  of  March.  1861,  at  the  age 
of  fifteen,  in  the  Confiilerate  army,  lie  served 
through  the  war,  and  was  several  limes  pro- 
moted for  gallantry  in  action.  The  Vicks- 
burg  Daily  Herald,  many  years  afterward, 
when  General  Fitzgerald  had  become  promi- 
nent in  law  and  politics,  thus  referred  to  his 
brilliant  military  record: 

"It  was  under  the  eye  of  the  gallant  Bob 
Smith  that  Fitzgerald,  then  a  beardless  strip- 
ling of  seventeen,  charged,  with  his  company, 
the  impregnable  federal  works,  held  by  a  large 
body  of  troops,  strongly  intrenched,  witli  heavy 
siege  guns,  behind  quadrilateral  earthworks, 
and  fell,  sword  in  hand,  pierced  through  the 
lungs,  at  the  foot  of  the  murderous  parapet. 
He  alone  of  his  entire  command  succeeded  in 
reaching  the  works.  For  his  gallantry  and 
reckless  daring,  yoiuig  Fitzgerald  was  pro- 
moted to  a  first  lieutenancy  on  that  bloody  field 
of  battle." 


At  the  close  of  the  war  the  young  soldier, 
then  only  nineteen  years  of  age,  commenced 
the  study  of  law.  He  was  admitted  to  tht'  bar 
by  the  Supreme  Court  of  Mississippi,  on  the 
18th  of  February,  1868.  Beginning  practice 
at  Jackson,  the  capital,  he  soon  entered  upon  _! 
a  very  active  professional  and  itublic  life.  He 
was  twice  elected  city  allorney  of  Jackson,  and 
was  afterward,  for  seven  years,  district  attor- 
ney for  the  judicial  district  embracing  Jack- 
son and  V'icksburg,  the  most  important  in  the 
state.  He  espoused  the  cause  of  the  Repub- 
lican party,  whicli  party  nominated  him  for 
attorney-general  in  July,  1S81.  He  was  en- 
dorsed by  the  Greenback  and  Independent 
Democratic  parties.  He  ran  five  thousand 
votes  ahead  of  his  ticket,  but  was  defeated,  the 
regular  Democrats  carrying  the  state  by  a 
heavy  majority. 

in  Jamiary,  1882,  when  the  distinguished 
Democratic  statesman,  L.  Q.  C.  Lamar,  was 
re-elected  to  the  United  States  senate.  Gen- 
eral Fitzgerald  was  the  caucus  nominee  of  the 
opposition  for  the  place.  The  Vicksburg 
Cuiiiiiicrcial  (Democratic)  observed  at  the 
time,  that,  "Although  the  Democrats  are  in  the 
majority,  and  will  undoubtedly  elect  Senator 
Lamar  as  his  own  successor,  the  nomination 
of  General  Fitzgerald  shows  in  what  high  es- 
teem he  is  held  oy  his  party,  of  which  he  ia 
the  acknowledged  leader  in  Mississippi." 

The  General  was  one  of  the  delegates  from 
the  Cotton  E.xchange  and  Chamber  of  Com- 
merce of  the  city  of  \'icksburg  to  the  National 
Mississippi  River  improvement  convention, 
which  met  in  Washington,  D.  C,  in  February. 
1883.  While  attending  that  convention  he  was 
ai)])ointed  by  President  Arthur  a  Justice  of  the 
SuprciiK'  C'onrt  of  .Arizona.  I  he  senate  unan 
iniously  eontirmed  the  nomination.  The  ap- 
l)ointee  had  just  been  re-elected  district  attor- 
ney in  Mississippi  for  a  term  of  four  years, 
ile  resigned  this  ofhce,  and  assumed  that  of 
United  States  Judge  in  Arizona.  This  latter 
position  he  also  gave  un.  after  two  years"  in- 
cumbency, and  removed  to  Los  Angeles,  Cal- 
ifornia, There  he  quickly  attained  prominence 
as  a  lawyer  and  citizen.  He  became  chairman 
of  the  board  of  directors  of  the  Chamber  of 
Commerce,  a  member  of  the  Republican  State 
central  conmiittee,  one  of  the  original  prospect- 
ors and  a  director  in  the  California  Sewer-pipe 
Company,  one  of  the  largest  manufacturing 
industries  in  Southern  California,  and  was  sev- 
eral limes  president  of  the  Republican  county 
conventions.  In  1892  he  was  elected  and  served 
as  chairman  of  the  Republican  Stale  central 
eonnnittee. 


Samuel  K,   Dougherty 


History  of  the  Bench  and  Bar  of  California. 


091 


On  February  2,  1893.  Governor  Markham 
appointed  General  Fitzgerald  an  Associate 
Justice  of  the  Supreme  Court,  in  place  of  John 
R.  Sharpstein,  deceased,  and  he  served  for  the 
unexpired  term,  ending  with  the  close  of  the 
year  1894.  In  the  latter  year  he  was  elected 
attorney-general  of  the  State,  and  served  the 
four  years'  term,  which  ended  in  January, 
1899.  In  1899  he  was  appointed  by  Governor 
Gage  to  a  vacancy  on  the  Superior  bench  of 
Los  Angeles  county,  and  he  served  the  frac- 
tional term  which  ended  in  January,  1901. 

Upon  leaving  the  bench,  as  last  stated.  Gen- 
eral Fitzgerald  resumed  the  practice  of  law  at 
Los  Angeles. 

He  has  a  wife  and  a  married  daughter.  Mrs. 
Fitzgerald  is  the  daughter  of  the  late  Dr.  C. 
S.  Knapp,  of  Jackson.  Mississippi,  and  niece 
of  the  late  New  York  statesman,  Daniel  S. 
Dickinson. 


SAMUEL  K.  DOUGHERTY. 

Judge  Dougherty  was  born  at  Berien 
Springs,  Michigan,  July  2,  1851.  His  prepar- 
atory foundation  for  the  law  was  laid  in  Mas- 
sachusetts, where  he  was  fitted  for  colleee 
at  Graylock  Institute,  in  Berkshire  county.  He 
afterwards  entered  Amherst  College,  and  took 
the  full  course,  graduating  with  the  degree  of 
Bachelor  of  Arts,  in  1878.  He  studied  law 
for  three  years  in  the  office  of  the  bar  leader 
and  distinguished  statesman,  Lyman  Trum- 
bull, in  Chicago,  and  took  a  three  years'  course 
in  the  Union  College  of  Law  in  that  city. 
Very  soon  after  this  he  came  to  California 
and  located  at  Petaluma,  where  he  began  the 
practice  of  law.  He  was  early  and  generally 
recognized  as  a  man  of  fine  legal  ability  and 
high  character,  studious  and  laborious,  and 
secured  many  friends  and  clients,  .'\fter  five 
or  six  years  of  general  practice,  he  was  elected 
one  of  the  Judges  of  the  Superior  Court  of 
Sonoma  county,  in  1888,  to  serve  out  an  unex- 
l)ired  term.  He  has  been  twice  re-elected.  He 
is  a  man  of  superior  judgment  and  iiatient 
investigation,  and  has  the  confidence  and  re- 
gard of  the  bar  and  of  l)oth  political  ])arties. 
lie   is   Re])u!)lican    in    his   political    views. 


ROliERT  FERRAL 


Ex-Judge  Ferral  like  his  close  personal 
friend,  the  political  economist,  Henry  George, 
'.vas  l)orn  in  Philadelphia.  He  was  born  two 
vears  after  Mr.  George— October  13.  1841.  He 
came  to  California  with  his  father,  and  the  hit- 
ter's   family,    in    1852.    ;irriving    at    San    Fran- 


cisco, by  steamer,  in  June.  Colonel  E.  D. 
Baker  was  a  passenger  on  the  same  steamer. 
The  elder  Ferral  was  a  journalist.  He  was 
a  Democrat,  while  Baker  was  a  devoted  Whig. 
The  two  gentlemen  had  a  clash  on  the  steamer, 
but  it  did  not  go  beyond  a  war  of  words.  We 
believe  that  politics  had  nothing  to  do  with  it. 

The  Ferral  family  settled  at  Santa  Rosa, 
where  the  future  Judge  grew  up,  attended 
school,  and  decided  to  follow  his  father's  pro- 
fession. He  was  an  editor  and  journalist  for 
many  years,  both  before  and  after  his  admis- 
sion to  the  bar,  in  California  and  in  Nevada. 
He  was  admitted  to  the  bar  at  Aurora,  in  the 
latter  state,  in  1863.  Returning  to  California, 
he  became  a  figure  in  politics  on  the  Demo- 
cratic side,  and  at  the  legislative  session  of 
1869-70,  when  there  was  a  Democratic  ma- 
jority in  both  branches,  he  v/as  elected  clerk 
of  the  assembly.  At  the  next  session,  1871-72. 
when  the  senate  was  Democratic  and  the  house 
Republican,  he  was  made  secretary  of  the  sen- 
ate. The  custom  was,  and  is,  that  the  house 
shall  be  first  called  to  order  by  the  person  who 
was  clerk  of  that  body  at  its  last  session.  Mr, 
Ferral,  who  had  been  clerk  at  the  eighteenth 
session,  accordingly  called  the  house  to  order 
at  the  nineteenth  session.  He  then  went  into 
the  senate  chamber,  where  he  was  soon  in- 
stalled as  secretary.  At  the  twenty-first  session. 
1875-76,  the  legislature  was  again  Democratic 
in  both  branches,  and  Mr.  Ferral  was  again 
made  clerk  of  the  assembly.  He  was  assistant 
district   attorney   in   the  years   1874  and    1875. 

During  the  years  1872  and  1873  Mr.  Ferral 
was  an  editorial  writer  with  Henry  George 
on  the  Evcninii  Post,  San  Francisco.  During 
lliis  period,  and  later,  he  appeared  now  anc' 
then  on  the  lecture  platform.  He  sometimes 
addressed  the  Dashaway  Temperance  Society. 
His  lecture  on  Aaron  Burr  may  be  found  in 
the  Post  of  March  3,  1873.  He  was  the  first 
and  only  Judge  of  the  City  Criminal  Court, 
which  was  created  in  1876,  and  passed  out  of 
exi.stence  with  the  old  constitution  in  January, 
1880.  He  stei)pcd  from  that  ])lace  to  the  bci.ch 
of  the  new  Superior  Court,  being  one  of  the 
first  twelve  Judges  of  that  tribunal  chosen  un- 
der the  present  constitution.  He  drew  a  full 
lerni.  ;md  servi'd  it  out,  leaving  the  liench 
witli   tile  opening  of  the  year    1S85. 

Since  that  time  Judge  Ferral  has  been  en- 
gaged in  law  practice,  his  business  being  nearly 
all  in  the  criminal  line.  He  is  a  ready  and  ca- 
l)able  lawyer,  of  high  reptUalion.  and  a  very 
agreeable  an<l   well-liked  man  personally.     He 


692 


History  of  the  Bench  and  Bar  of  California. 


has  a   family,  owns  his  Ikhik'.  and  has  a   fine 
inccinic  from  his  practice. 


WILLIAM    IIUDSOX  (,RAXT. 

William  Hudson  Grant  was  i(orn  in  Canton. 
Lewis  county.  Missouri,  on  the  31  si  day  of 
August,  1853. 

His  paternal  ancestor,  Donald  Grant,  was  a 
Scotch  Highlander,  who,  with  the  greater  part 
of  his  clan,  went  out  in  1745  in  support  of  the 
claims  of  his  hereditary  sovereign  and  kins- 
man, "Prince  Charlie"  (Charles  Edward,  the 
Pretender),  and  followed  the  fortunes  of  that 
ill-fated  prince  through  all   his  last  campaign. 


which  terminated  with  the  disastrous  defeat  at 
Cullodcn,  in  1746.  After  that  battle,  young 
Donald,  with  a  price  upon  his  head,  escaped 
from  Scotland,  crossing  over  to  France  in  a 
fishing  boat,  and  from  France  emigrated  to 
the  colonies,  settling  in  Virginia.  He  lived 
there  long  enough  to  participate  in  the  stirring 
events  attending  the  Declaration  of  Independ- 
ence and  the  War  of  the  Revolution  which 
followed.  Though  an  old  man  then,  he  and 
his  youngest  son,  John,  were  members  of  the 
famous  light  horse  cavalry,  the  daring  brigade 
of  Virginia. 

The  maternal  ancestor  of  our  subject  was  a 
French  Huguenot,  who,  after  the  revocation 
of  the  Edict  of  Nantes,  (Oct.  23,  1685),  also 
emigrated    to    America. 

As  might  have  been  expected,  the  union  of 
these  two  strains  of  the  blood  of  political 
and  religious  exiles,  produced  in  Judge  Grant, 
a  man  of  little  love  for  "authority,"  who,  in 
all  his    professional     career,     both     as    practi- 


tioner and  judge,  has  held  steadfastly  to  the 
doctrine  that  "nothing  is  settled  till  it  is  set- 
tled right."  In  his  adherence  to  this  doc- 
trine he  has  at  times  astonished  the  bar  by 
refusing  to  be  guided  by  well-established 
precedents,  which,  in  his  opinion,  were  not 
sound  in  principle.  He  was  admitted  to  the 
bar  of  the  Supreme  Court  of  this  State  in 
April,   1877. 

In  the  year  1890,  at  the  age  of  37,  he  was 
elected  Judge  of  the  Superior  Court  of  Yolo 
County,  and  served  one  term.  In  1896  he 
sought  a  re-nomination,  but  was  defeated  in 
the  Convention  by  the  "machine"  element  of 
his  party,  whose  ill-will  he  had  incurred  by 
refusing  to  pay  an  "assessment"  of  $1,000.00. 
levied  for  the  purpose  of  "influencing"  voters 
at  the  election  of  1890.  In  that  campaign  he 
met  all  legitimate  expenses,  and  his  refusal 
to  pay  the  so-called  "assessment"  was  to  dis- 
countenance political   corruption. 

During  the  early  part  of  his  term  as  Judge 
of  the  Superior  Court  he,  at  the  request  of  the 
Governor,  relieved  Judge  E.  A.  Davis,  of 
Yuba  and  Sutter  counties,  in  the  trial  of  one 
of  the  election  fraud  cases  which  grew  out 
of  the  division  of  Colusa  county.  Later,  at  the 
request  of  the  Judges  of  Sacramento  County, 
he  heard  and  determined  the  celebrated  case  of 
Livermore  vs.  Waite,  which  involved  the  va- 
lidity of  the  "Senate  Constitutional  Amend- 
ment, No.  23,"  which  provided  for  the  removal 
of  the  State  Capital  from  Sacramento  to  San 
Jose.  His  opinion  filed  in  that  cause  was 
commented  upon  by  able  men  of  the  bar  as 
a  well-written,  logical  and  forceful  document. 

In  1894,  during  the  great  railroad  strike,  a 
train  was  wrecked  in  Yolo  County,  which  re- 
sulted in  the  death  of  several  persons,  and 
a  number  of  the  strikers  were  arrested  and 
lirought  before  Judge  Grant  for  trial  upon 
the  charge  of  murder.  Acquittals  were  secured 
in  all  of  the  cases,  except  that  of  S.  D.  Wor- 
den,  who  was  convicted  of  murder  in  the 
first  degree,  and  sentenced  to  death,  but  this 
sentence,  after  affirmance  by  the  Supreme 
Court,  was  commuted  by  Governor  Budd  to 
life   imprisonment. 

Judge  Grant  has  generally  been  considered 
a  close  reasoner,  and  a  hard  student,  whose 
effort  was  always  to  discover  the  basal  prin- 
ciples underlying  a  cause  and  rest  his  decision 
thereon,  rather  than  upon  precedents  which 
Jid  not  appeal  to  him  as  authoritative.  He 
is  now  located  at  Woodland,  and  at  the  age  of 
47,  is  in  the  prime  of  his  physical  and  profes- 
sional usefulness. 


■ 

1 

■ 

1 

1 

fc"' 

f> 

'^1 

1 

i 

F* 

^^L      -N| 

y 

j^^m^^^^^^^^^^^ 

H 

1 

Jmk     i 

I    > 

R 

E,M,   Gibson 


History  of  the  Bench  and  Bar  of  Califor)iia. 


695 


E.   M.   GIBSON. 

Col.  E.  M.  Gibson  was  born  at  Carmel, 
Hamilton  county,  Indiana,  on  the  13th  day  of 
June,  1842.  His  education  was  in  country 
and  district  schools,  and  five  months  in  a 
Quaker  seminary  in  that  county,  and  two 
years  in  the  law  department  of  the  Columbian 
University  in  Washington  city,  where  he 
graduated  in  June,  1867.  A  few  weeks  there- 
after he  was  admitted  to  the  bar  of  the 
Supreme  Court  of  the  District  of  Columbia. 
He  came  to  California  first  in  1870,  but  located 
in  this  State  in  1873,  and  has  been  here  ever 
since.  He  was  district  attorney  of  Alameda 
county  for  four  years  and  later  Judge  of  the 
Superior  Court  of  that  county  for  six  years. 

The  Colonel's  family  are  Americans  and  his 
ancestors  have  been  in  this  country  for  two 
hundred  years.  His  father  and  mother  were 
born  in  North  Carolina,  where  his  grand- 
parents all  lived  and  are  buried.  His  grand- 
father Gibson  was  a  soldier  in  the  American 
army  during  the  war  of  the  Revolution.  His 
mother's  maiden  name  was  Winslow  and  her 
ancestors  came  over  on  the  Mayflower.  His 
mother's  mother  was  a  Stanton  of  North 
Carolina,  and  belonged  to  the  same  family 
with  E.  M.  Stanton,  who  was  Secretary  of 
War   under   Lincoln. 

Colonel  Gibson  won  his  military  title  in  the 
Civil  War,  through  which  he  fought  hero- 
icall)^,  suffering  the  loss  of  a  leg.  He  has  a 
wife  and  three  accomplished  daughters.  He 
resides  at  Oakland,  and  is  at  present  associ- 
ated in  law  practice  with  Ben.  F.  Woolner, 
(Gibson   &    Woolner). 


C.  V.  GOTTSCHALK. 
Judge  Gottschalk  was  born  in  New  Or 
leans,  Louisiana,  in  1827.  He  received  his 
first  instruction  from  jjrivate  tutors ;  after- 
wards he  attended  private  schools  until  1840, 
when  he  went  to  Philadelphia  and  studied  in 
a  preparatory  school,  from  which  he  entered 
the  University  of  Pennsylvania.  Fie  returned 
to  New  Orleans  in  1844  and  engaged  in  com- 
mercial pursuits,  until  1850,  when  he  left  for 
California,  arriving  at  San  Francisco  on  the 
4th  day  of  August  of  that  year.  After  remain- 
ing a  year  in  San  Francisco  he  went  to  tjie 
mines,  arriving  at  Mokelumne  Hill  in  Sep- 
tember, 1851.  He  followed  mining  for  several 
years  with  indifferent  success,  in  the  vicinity 
of  Mokelumne  Hill  and  San  .Xndreas.  He 
early  took  an  active  part  in  jxililics.  on  the 
Democratic  side,  believing  then  as  now  that 
the  Democratic  doctrine,  as  taught  by  the 
fathers  of  our  country,  is  the  true  policy  for 
a  rei)u])lican  government. 


Judge  Gottschalk  has  occupied  various  po- 
sitions in  Calaveras  county,  having  been  dep- 
uty sheriff,  deputy  county  clerk,  and  district 
attorney,  which  last  position  he  resigned  in 
December,  1879,  to  take  his  seat  on  the  bench 
of  the  Superior  Court,  to  which  office  he  was 
elected  in  that  year.  He  has  been  re-elected 
to  the  same  office  three  consecutive  times,  hav- 
ing been  on  the  bench  since  the  adoption  of 
the  present  constitution. 

There  are  five  other  Judges  who  have  been 
on  the  bench  of  the  Superior  Court  in  Cali- 
fornia ever  since  the  court  was  created,  twenty 
years  ago.  These  are  Judges  Greene  of  Ala- 
meda, Jones  of  Trinity,  Arnot  of  Mono,  Cor- 
coran of  Mariposa,  and  Hunt  of  San  Fran- 
cisco. 

JOHN  C.  GRAY. 

John  Carleton  Gray  was  born  at  Dresden, 
Lincoln  county,  Maine,  February  2,  1837,  being 
the  fourth  of  nine  children  born  to  Hon.  John 
L,  and  Lydia  (Carleton)  Gray,  four  sons  and 
five  daughters.  Judge  Gray  is  the  only  remain- 
ing son.  Two  of  the  boys  died  while  yet 
young;  and  the  third  at  the  age  of  forty-two 
years,  after  having  followed  the  sea  twentv- 
five  years,  nearly  twenty  of  which  he  was 
master  of  a  good  ship.  In  1877,  Captain  Gray 
was  presented  by  the  citizens  of  Honolulu  with 
a  silver  service  for  carrying  to  them  the  oiffi- 
cial  notice  of  the  adoption  of  the  reciprocitv 
treaty  between  the  United  States  and  the  Sand- 
wich Islands. 

Judge  Gray's  ancestors  came  from  England 
and  the  north  of  Ireland,  and  in  the  Revolu- 
tionary War  were  found  in  both  armies,  as 
some  of  them  held  important  positions  in  the 
British  service  before  the  struggle  began.  Both 
his  parents  were  natives  of  Maine,  where  his 
mother  died  in  1874  at  the  age  of  sixty- seven 
years,  and  his  father  in  1897,  at  the  age  of 
ninety   years.      His   sisters   are   all   living. 

The  family  moved  from  Dresden  to  China, 
Maine,  when  our  subject  was  but  three  years 
of  age.  He  lived  upon  a  farm  until  he  w^r 
eighteen  years  old,  when  he  bought  the  remain- 
der of  his  minority  and  started  out  in  life  for 
himself.  He  taught  .school  to  get  the  means 
to  fit  himself  for  college,  which  he  entered  in 
1859,  at  Waterville,  Maine,  then  known  as 
Waterville,  now  as  Colby  University,  where 
he  remained  but  two  years.  He  then  entered 
tiie  law  office  of  Hon.  A.  Libbey  at  Augusta. 
There  he  remained  until  admitted  to  practice 
in  the  highest  court  of  that  State.  His  admis- 
sion was  on  the  i6th  of  June,  1863,  and  on  the 
next    day   he   started    for   California,   arriving 


69G 


History  of  the  Bench  and  Bar  of  California. 


in  thi^  State  July  19.  of  the  same  year.  He 
went  to  Sacramento,  where  he  found  work  for 
a  year  and  a  half  as  night  clerk  at  the  What 
Cheer  hotel.  On  the  first  of  January,  1865.  he 
removed  to  Butte  count}',  and  taught  school 
for  the  next  seven  years,  five  of  which  were 
in  Oroville,  as  principal  of  the  grammar 
school,  after  which  and  about  the  first  of 
June,  1872.  he  opened  a  law  office  in  Oroville, 
at  which  place  he  has  ever  since  resided. 

The  next  year,  1873,  he  was  elected  a  mem- 
ber of  the  assemblj'  and  took  his  seat  in  the 
legislature  the  following  December.  The  ses- 
sions were  then  four  months  long,  and  a  great 
amount  of  important  business  was  transacted 
that  winter.  The  codes  had  become  the  law 
of  this  State  on  the  first  of  January,  1873. 
and    the   bench   and   bar   had   seen    and    tested 


them  nearly  a  year,  and  the  number  of  amend- 
ments that  were  presented  to  the  legislature 
at  that  session  were  nearly  as  large  and  volum- 
inous as  the  codes  themselves.  The  judiciary 
committee  of  the  assembly,  of  which  Judge 
Gray  was  a  member,  was  presided  over  by 
Judge  Williams,  of  El  Dorado  county,  and 
contained  such  men  as  Hon.  John  F.  Swift, 
Hon.  M.  M.  Estee,  Hon.  J.  F.  Cowdery,  and 
many  others,  of  equal  learning  and  fame. 
Before  it,  almost  nightly,  was  the  code  com- 
mission, at  the  head  of  which  was  Hon.  Creed 
Haymond,  then  in  his  best  years,  and  leading 
lawyers  from  every  part  of  the  state,  who  did 
not  take  kindly  to  the  innovations  made  by  the 
code  in  their  forms  of  pleading  and  practice. 
The  sessions  of  that  committee  ran  into  the 
morning  hours,  and  there  were  six  of  them 
each  week,  and  the  work  there  done,  familiar- 
i'-'cd  each  member  with  the  codes  to  that  extent 


that  each  had  a  far  better  knowledge  of  it 
than  other  lawyers  in  the  State.  Each  member 
went  home  equipped  to  take  a  leading  part  in 
the  litigation  of  his  own  bar.  From  this  school 
of  law  Judge  Gray  returned  to  Oroville,  and 
in  a  very  short  time  took  a  commanding  place 
in   the  profession. 

In  1874,  at  the  earnest  request  of  the  leading 
citizens  of  Oroville,  he  became  part  owner 
and  editor  of  the  Oroville  Mercury,  which  he 
managed  in  connection  with  his  law  business, 
although  as  he  often  said,  his  editorial  work 
had  to  be  done  at  night,  and  on  Sunday.  The 
paper  under  his  management  soon  took  the 
first  rank  in  the  county,  and  maintained  it  as 
long  as  he  was  at  its  head.  In  1878,  he  dis- 
posed of  his  interest  in  it.  and  devoted  his 
whole  attention  to  his  legal  business,  which 
was  rapidly  increasing  and  would  not  permit 
of  his  giving  his  attention  to  other  matters, 
as  can  be  seen  by  a  reference  to  the  Supreme 
Court  reports.  He  also  was  largely  engaged 
in  procuring  government  titles  to  agricultural 
and  mineral  lands,  and  some  of  the  arguments 
made  by  him  before  the  commissioner  of  the 
general  land  office,  and  also  before  the  secre- 
tary of  the  interior,  were  among  the  best 
received  by  those  officers,  and  have  been  used 
by  others  in  later  considered  cases. 

He  received  the  nomination  of  the  Repub- 
lican party  for  the  office  ot  district  attorney 
in  1884,  and  after  a  hot  contest  was  elected 
for  a  term  of  two  years,  and  w-as  re-elected 
by  a  much  larger  majority,  but  refused  to  run 
for  a  third  term.  It  w-as  during  his  term  of 
office  that  some  seven  criminals,  forming  one 
of  the  worst  bands  of  outlaws  in  the  state, 
were  sent  to  prison  for  terms  varying  from 
one  to  sixty  years,  thus  ridding  Oroville  of  a 
menace  that  had  hung  over  it  for  years. 

In  i8go,  he  received  the  nomination  of  his 
party  for  the  office  of  Superior  Judge,  a  placj 
then  held  by  Judge  P.  O.  Hundley,  one  of  the 
most  popular  men  in  the  northern  part  of  the 
State,  and  who  was  his  opponent  in  the  con- 
test, but  which  resulted  in  the  election  of 
Judge  Gray  by  a  large  majority.  His  duties 
on  the  bench,  as  is  the  case  with  all  judges  of 
interior  counties,  where  farming,  mining, 
fruit-raising,  lumbering  and  other  interests 
are  carried  on.  embraced  a  wide  field  and  gave 
full  play  to  a  brain  full  of  common  sense. 
Tfiat  his  administration  of  affairs  gave  satis- 
faction was  evidenced  by  the  fact  that  when 
he  came  up  in  1896  for  re-election  he  receiv.ed 
the  largest  majoritv  ever  given  to  a  candidate 
in  Butte  count}'.     He  is  now  near  the  close  of 


William  E.   Greene 


History  of  the  Bench  and  Bar  of  California. 


699 


his  ninth  year  on  the  bench,  and  is  regarded 
as  a  man  of  more  than  average  abilities  for 
the  place.  Fairness  and  honesty  of  purpose 
is  accorded  him  on  all  sides,  and  by  all  par- 
ties, who  have  had  business  in  the  courts 
before  him. 

His  fraternal  life  began  with  his  entrance 
into  college,  where  he  joined  the  Delta  Kappa 
Epsilon  fraternity.  He  has  ever  since  been 
a  devoted  member  of  it,  often  inviting  to  his 
home  such  young  men  as  he  learned  belonged 
to  the  organization.  He  also  became  a  Mason, 
and  advanced  as  far  as  the  order  of  the  Knights 
Templar,  in  each  of  the  several  divisions  of 
which  he  became  the  presiding  officer,  places 
which  he  filled  with  ability.  He  is  also  an 
Odd  Fellow,  being  an  encampment  member. 
As  age  creeps  on,  he  is  little  inclined  to  visit 
the  lodges,  claiming  that  in  his  day  he  did  his 
full  duty,  and  younger  men  should  be  given 
the  places  of  honor. 

Having  worked  upon  the  farm  in  early  life, 
it  was  not  unnatural  for  the  Judge  in  after 
years  to  turn  his  attention  to  the  farm  in  this 
State,  where  the  land  yields  its  choicest  re- 
turns, with  but  a  tithe  of  the  labor  required 
of  the  farmer  in  the  harsh  and  inhospitable 
climate  of  Maine.  Accordingly,  we  find  him 
turning  his  attention  to  fruit-raising  as  early 
as  1886,  being  the  pioneer  in  that  business  in  his 
part  of  the  county.  He  cleared  the  land  of  the 
dense  forests,  planted  trees,  and  now  has  one 
of  the  "show"  places  of  this  region,  an  orchard 
of  some  4,000  peach  trees,  fifty  acres  of  White 
Adriatic  figs,  and  one  hundred  acres  planted 
to  olives,  all  in  bearing  and  yielding  bountiful 
harvests.  He  has  extensive  pickling  works, 
the  crop  reaching  a  number  of  thousands  of 
gallons,  while  his  extensive  oil  machinery,  as 
good  as  can  be  found  in  America,  annually 
turns  out  hundreds  of  gallons  of  pure,  sweet, 
delicious  olive  oil.  Here  he  spends  a  portion 
of  his  time  when  not  occupied  with  official 
duties. 

On  the  6th  day  of  October,  1869.  he  was 
married  to  Miss  Bella  R.  Clark,  who  had  been 
one  of  his  pupils,  and  for  a  time  had  been 
one  of  the  teachers  m  the  school  of  which  he 
was  principal.  Of  this  marriage,  there  wer<- 
three  children,  one  son  and  two  daughters,  the 
eldest  of  whom,  Helen,  died  in  infancy.  The 
son,  Carleton  Gray,  lives  in  Oroville,  and  is 
following  his  father's  profession,  while  tlie 
youngest,  Miss  Ida  B.  Gray,  is  the  official 
reporter   for   his   court. 

His  married  life  was  a  happy  one.  for, 
though   his  wife  was   for  mnnv  years   in   p^or 


health,  she  yet  possessed  a  siveet,  lovable  dis- 
position, and  the  rare  good  judgment  almost 
always  found  among  the  women  of  Scotch 
parentage.  Their  home  was  their  paradise. 
Her  death  took  place  on  the  14th  of  November, 
1897,  in  San  Francisco,  where  she  had  gone 
to  attend   the  wedding  of  her  son. 

In  person.  Judge  Gray  is  six  feet  tall,  weighs 
about  two  hundred  and  twenty,  is  of  florid 
complexion,  and  of  a  genial,  happy  disposi- 
tion. 


WILLIAM    E.    GREENE. 

William  Ellsworth  Greene,  who  has  been  a 
Judge  of  the  Superior  Court  of  the  State  of 
California  ever  since  that  Court  was  created. 
was  born   November   14,   1836,  at  Farmington. 
Maine.     He  came  of  a  well-known  New  Eng- 
land   family   of   that   name,   many   of   the   de- 
scendants of  which  have  attained  prominence 
in   professional   life.      The   first   of  the   family 
in  this  country  came  from  England  about  the 
year   1635,  and  settled  in  Maiden,  Massachu- 
setts.     About    eighty    years    later    the    family 
removed  to  Leicester,  in  the  same  state,  where 
many  of  the  members  continued  to  reside  as 
late  as  the  War  of  the  Revolution.     It   was 
there    that    Judge    Greene's    grandfather    and 
three  granduncles,  and  his   great  grandfather 
and  three  great  granduncles  at  that  time  re- 
sided, all  of  whom  rendered  military  service  to 
the  United  colonies  in  their  struggle  for  inde- 
pendence. Judge  Greene  was  prepared  for  ad- 
mission to  Bowdoin  College  at  sixteen  years  of 
age,    and    later    entered    that    institution,    and 
was,  in  due  course,  graduated  therefrom  with 
the    degree    of   A.    B.,    and    three   years    later 
was  given  the  degree  of  A.  M.     He  came  to 
this  State  in  1863,  arriving  in  San  Francisco 
on  August  17th  of  that  year,  and  in  the  same 
month  took  up  his  residence  at  Stockton.     He 
engaged  in  teaching  there  for  a  time,  but  in 
the  early  part  of  the  year  1865  entered  upon 
the  practice  of  his  profession.    He  was  elected 
assemblyman  of  San  Joaquin  county  that  year 
and   served    in    the   session   of   the   legislature 
of   1865-66.     He  continued  in  the  practice  of 
his  profession   until   the  first   Monday  of  Jan- 
uary,   1868.   when   he   began    his   long  judicial 
career  as  County  Judge  and  ex  officio  Probate 
Judge  of  San  Joaquin  cotmty,  to  which  posi- 
tion   he   had   been   elected   the   previous   year. 
He  held  that  office  until  April  30,   1874,  when 
he    resigned    to    take   charge   of   an    extensive 
hnnber   concern    in   the   northern    part   of   the 
State,   in   which   he  had  become  largely  inter- 
im'ed.     Having  closed  out  his  interest   in  that 


700 


History  of  the  Bench  and  Bar  of  California. 


concern  in  ilio  early  part  of  the  jear  1875. 
he  removed  to  Oakhind.  Cahfornia.  and  re- 
sumed the  practice  of  tlie  hivv,  opening  an 
office  in  San  I'rancisco  and  lati'r  in  Oak- 
hind. 

In  1879  he  was  elected  a  Judge  of  the  Su- 
perior Court  of  the  State  in  and  for  the  county 
of  Alameda,  and  entered  upon  the  discharge 
of  the  duties  of  that  office  on  the  first  Mon- 
day of  January,  1880,  since  which  time  he  has 
continuously  held  that  position,  having  been 
three  times  re-elected.  His  present  term  of 
office  will  expire  on  the  first  Monday  of 
January,  1903,  at  which  time,  if  he  shall  com- 
plete his  present  term  of  office,  he  will  have 
been  in  the  judicial  service  of  the  State  twen- 
ty-nine years  and  four  months.  Of  all  the 
Judges  who  went  upon  the  Superior  Court 
bench  of  the  State  when  that  court  was  first 
organized,  only  six  remain,  who  have  contin- 
uously held  that  office  to  the  i)resent  time, 
and  Judge   Greene  is  one  of  the   six. 

A  distinguished  member  of  the  bar  of  this 
State,  who  is  very  familiar  with  Judge 
Greene's  judicial  career,  recently,  in  referring 
to  his  long  judicial  service,  spoke  of  him  as 
follows,   viz  : 

"The  hold  which  he  has  so  long  retained 
upon  the  public  confidence  as  a  lawyer  and  a 
Judge,  and  which  grows  stronger  witii  time, 
is  due  to  his  industry,  legal  ability,  broad  gen- 
eral knowledge  and  his  sole  aim  to  administer 
justice  according  to  law.  His  chief  mental 
characteristics  are  those  which  impel  him  in- 
stantl}'  to  the  ])reciM'  matter  in  (lis]nne  in  all 
controversies,  whether  involving  questions  of 
•law  or  fact,  a  retentive  memory,  a  compre- 
hensive grasp  of  legal  principles,  a  rapid  ap- 
plication of  them  to  the  matter  in  hand,  keen- 
ness of  perception,  accuracy  of  judgment,  abil- 
ity to  discover  truth  where  hidden  by  motives 
of  deception,  and,  finally,  the  ability  to  impar- 
tially consider  and  comprehend  the  whole  case, 
and  reach  conclusions  thereon,  fortified  by 
reason,  logic  and  sound  legal  discretion.  These 
qualifications  eminently  fit  him  to  fill  and 
adorn  a  judicial  position.  The  facility  with 
which  he  is  able  to  transact  a  large  amouiu 
of  legal  business  in  a  comparatively  limited 
period  of  time,  and  consequently  to  administer 
justice  economically,  has  long  been  a  matter 
of  common  observation  and  remark,  i)y  all  who 
are  acquainted   with  his  judicial  attainments." 

This  is  a  very  high  encomium,  and  yet  it  is 
quite  justified  by  the  reputation  which  Judge 
Greene  has  acquired  for  judicial  ability,  un- 
swerving integrity  and  untiring  industry.  In 
1897,  when  tlie  ])osition  nf  United  States  Dis- 


trict Judge  for  the  Xorthern  district  of  Cali- 
lornia  was  mado  vacant  by  the  ap])ointment  of 
Judge  W.  W.  Morrow  to  the  United  States 
Circuit  beiicli.  Judge  Greene  was  very  earn- 
estly and  very  strongly  recommended  to  the 
President  for  appointment  to  fill  such  va- 
cancy, by  many  distinguished  men  of  the  bench 
and  l)ar,  and  by  many  others  prominent  in 
])rivate  life.  In  these  recommendations  Judge 
(ireene  was  declared  to  be  a  man  of  ripe  judg- 
ment, of  superior  ai)ility  and  unquestioned 
honor  and  integrity.  They  declared  that  he 
was  liked  best  by  those  who  knew  him  best, 
that  he  was  distinguished  for  fearlessness  in 
his  decisions,  and  endowed  with  the  courage 
so  essential  to  the  character  of  a  good  Judge, 
and  they  pointed  particularly  to  his  long  and 
splendid  record  on  the  bench. 

We  have  had  occasion,  in  sjjcaking  of  the 
strong  men  of  our  bench  and  bar,  to  refer  to 
some  of  them  as  being  strong  also  physically. 
Judge  Greene  inherited  a  splendid  physique, 
and  this,  by  reason  of  his  exemplary  habits, 
is  still  preserved  to  him.  The  trite  phrase,  "in 
the  prime  of  life,"  applies  to  him  now,  and 
probabl}'  wall  for  many  years  to  come,  al- 
though "three-score  years  and  ten"  are  not  far 
off. 

In  1869  Judge  Greene  married  Anna  Isabel, 
daughter  of  Mr.  and  Mrs.  W.  W.  Webster, 
then  of  Maplewood,  Massachusetts.  Mrs. 
(jreene  died  in  1893.  Their  children  are 
Carlton  W.,  Mabel  E.,  Ethel  A.,  and  Lau- 
rence L. 


CHARLES  N.  FOX. 


Charles  Nelson  Fox.  Judge  of  the  .Supreme 
Coiu't  in  1889-90,  was  born  in  Redford,  Wayne 
county,  Michigan,  in  a  log  cabin,  surrounded 
by  a  dense  forest,  on  the  9th  of  March,  1829. 
Like  all  the  pioneers  of  that  country,  his  par- 
ents were  poor,  and  such  schooling  as  he  re- 
ceived was  had  in  the  traditional  log  school- 
house,  for  a  few  months  only  in  each  year, 
and  to  attain  this  he  was  compelled  to  walk 
one.  and  sometimes  two  miles  to  school.  Di- 
viding his  time  between  the  school  and  the 
farm  until  he  was  fifteen,  at  that  age  he  re- 
lieved his  parents  of  his  support,  with  their 
approval,  and  went  to  Ann  Arbor,  determined 
to  make  his  own  living,  and  if  possible  work 
his  way  through  the  university,  then  just 
o])ened.  Securing  a  place  where  he  could  work 
for  his  board  and  lodging,  he  matriculated  at 
the  imiversity,  and  spent  some  time  in  the 
study  of  Latin  and  Greek,  when  he  was  taken 
sick.     This   iin-olved  a   loss  of  six   months  in 


Chas.   N.  Fox 


History  of  the  Bench  and  Bar  of  California. 


'03 


his  studies,  and  postponed  for  a  year  the  pe- 
riod of  his  possible  graduation.     At  that  time 
the  only  course  of  study  open  at  the  university 
was  the  classical  course.     After  much   reflec- 
tion, young  Fox  concluded  that  in  the  struggle 
of    that    conclusion,    but    right    or    wrong,    he 
which  must  be  spent  in  the   university  would 
not    be    compensated    by    the    benefits    derived 
from  the  course  of  study  then  opened  to  him. 
He  has  many  times  since  doubted  the  wisdom 
of  life  for  a  poor  man,  the  four  or  five  year.s 
acted   upon   it,   and   abandoned   the    university 
for  a  printing  office,  where  he  mastered  every 
department  of  the  printer's  art,  as  then  prac- 
ticed in  Ann  Arbor.     At  an  early  age  he  be- 
came   somewhat    noted    as    a    country    editor. 
From    infancy   he   had   known    intimately   and 
been  a  favorite  of  General  Lewis  Cass,  and  he 
early  began  to  take  an  active  part  in  politics. 
In  1848,  when  only  nineteen  years  old,  he  made 
his  first  speech   to  a  mass  meeting,  when,  as 
president    of    the    Young    Men's    Democratic 
Club  of  Ann  Arbor,  he  opened  the  campaign 
of  1848  with  a  speech,  3.nd  introduced  General 
Cass,  who  had  insi.<;ted  that  his  young  friend 
should  speak  first,  and  expressed  his  gratifica- 
tion at  being  introduced  by  one  of  his  own 
boys.    The  General  had  before  that  offered  Mr. 
Fox  a  place  at  West  Point,  which  he  had  de- 
clined  to   take    and  which    declension   he  has 
ever    since    regretted.      At   that    time    he    pre- 
ferred the  na\'y,  b'lt  into  this  the  General  re- 
fused   to    place    him,    unless    he    first    got    his 
father's    consent — a    thing    which    young    Fox 
believed    would   be    impossible,    and    so    never 
made  an  effort.     At  twenty-one  ne  was  made 
chief  deputy  m  the  office  of  the  recorder  of 
deeds  of  his  county,  and  for  two  years  was 
practically    the    chief   of    that    office.      During 
this  period  he  was  also  elected  city  recorder 
of  the  city  of  Ann  Arbor.    A  vacancy  occurring 
m  the  office  of  mnyor,  he  S'^rved  ex-officio  in 
that  capacity  for  a  portion  of  the  term. 

Retiring  from  public  place,  ■  he  entered  the 
law  office  of  Kingslcy  &  Morgan  to  complete 
the  study  of  the  law.  While  yet  a  student  in 
this  office,  he  attracted  the  favorable  notice 
of  the  great  commercial  agency  of  Bradstreet 
&  Co.,  by  his  peculiar  ability  to  "read  be- 
tween the  lines"  and  understand  the  motives 
and  intentions  of  men — a  faculty  which  he  has 
«iver  since  retained  in  a  large  degree, — and  he 
still  is  a  trusted  counsellor  of  that  great 
<:f)mnicrcial  house.  He  was  admitted  to  the 
bar  of  the  Supreme  Court  of  Michigan  in  1856, 
and  in  1857  his  parents  and  all  otlier  members 


of  the  family  having  already  settled  in  Cali- 
fornia, he  came  hither,  arriving  in  August  of 
that  year,  immediately  locating  in  the  county  of 
San  Mateo.  In  November,  a  vacancy  occur- 
ring in  the  office  of  district  attorney,  he  was 
appointed  to  fill  it,  and  by  successive  elections 
held  that  office  for  five  years,  when  he  declined 
further   election. 

In  the  early  struggles  of  the  Spring  Valley 
Water  Works  to  gain  a  foothold  in  San  Mateo 
county,  he  was  retained  against  them,  and  for 
some  time  succeeded  in  preventing  them  from 
acquiring  any  rights  necessary  to  the  construc- 
tion of  their  works.  Finally,  having  been 
beaten  in  all  litigation,  the  company  retained 
him  to  acquire  such  rights  as  they  desired,  and 
he  at  once  went  to  work,  and  without  litigation 
secured  for  them  all  that  they  had  theretofore 
been  seeking  through  the  courts.  He  so  man- 
aged the  business  of  the  company  in  that  county 
that  for  ten  years  it  had  no  suit  there  of  any 
kind. 

Upon  the  organization  of  the  San  Francisco 
&  San  Jose  Railroad  Company.  Mr.  Fox  be- 
came the  local  attorney  of  that  corporation  to 
secure  the  right  of  way  through  San  Mateo 
county,  and  continued  to  act  in  that  capacity 
until  the  road  was  sold  out  to  Newhall  &  Co. 
During  that  time  he  became  the  general  at- 
torney of  Charles  McLaughlin,  and  ultimately 
the  attorney  and  president  of  the  Western 
Pacific  Railroad  Company— a  place  which  be 
held  until  that  road  was  sold  out  to  the  Cen- 
tral Pacific  Company.  These  duties  having 
brought  him  to  San  Francisco,  he  was  ap- 
pointed general  attorney  of  the  Spring  Valley 
Water  Works,  more  tlian  tliirty-five  year«! 
ago,  and  held  that  position  until  he  wont  on 
the   Supreme  bench   in   i88q. 

In  his  early  practice  in  the  State  he  becam.e 
S(;mcwhat  noted  as  a  criminal  lawyer,  and  met 
with  more  than  ordinary  success  in  that  line 
of  practice,  but  after  being  so  much  engaged 
in  corporation  law,  ho  practically  withdrew 
from  criminal  practice,  and  has  since  given 
that  department  of  law  very  little  attention. 

During  Mr.  Fox's  incumbency  of  the  offict" 
of  district  attorney,  a  statute  took  efiVrt  re- 
iiuiring  that  delinquent  taxes  should  bo  col- 
lected by  suit,  and  for  two  years  nearly  ail  the 
heavy  taxes  of  his  county,  San  Mateo,  wcrr 
contested,  but  never  with  success.  Almost  im- 
mediately upon  retiring  from  office  he  was 
retained  to  defend  against  similar  claims,  and 
then  raised  the  question  of  I  lie  unconstitu- 
tionality (if  the  revonno  laws  llicn  in  force,  bv 


704 


History  of  the  Bench  and  Bar  of  California. 


reason  of  the  large  exemption  from  taxation 
which  were  made  by  those  laws.  Upon  this 
point  he  prepared  an  elaborate  brief,  which 
was  not  only  used  in  the  courts,  but  in  the 
legislature,  and  he  and  others  who  subse- 
quently joined  him  in  the  contest,  kept  up  the 
fight  until  at  lasi  tlie  Supreme  Court  sus- 
tained the  point  and  held  the  exemptions  to 
be  unconstitutional.  The  legislature  then 
changed  the  laws,  and  since  that  time  taxa- 
tion in  this  Slate  has  been  perhaps  more  uni- 
form in  any  other  stale  in  the  Union. 

Mr.  Fox  was  twice  named,  but  refused  to 
be  a  candidate,  for  judge  of  the  old  Twelfth 
District  Court.  Several  times  he  was  urged  to 
accept  legislative  and  congressional  position, 
but  always  refused,  except  at  the  first  session 
of  the  legislature  under  the  new  constitution 
of  1879,  when  he  was  chairman  of  the  judi- 
ciary committee  of  the  assembly.  Chancellor 
Hartson,  who  was  a  member  of  the  same  body, 
said  of  Mr.  Fox  and  the  work  that  devolved 
upon  him  at  that  time :  "I  would  rather 
spend  the  time  of  this  session  in  the  peniten- 
tiary than  in  his  position." 

The  constitution  had  wrouglit  many  radical 
changes.  '  All  the  laws  of  the  State  had  to  be 
brought  into  harmony  with  it,  and  at  least 
three-fourths  of  all  the  bills  went  to  his  com- 
mittee. While  the  statutes  of  that  session 
sliow  a  great  amount  of  work  accomplished, 
the  burden  of  his  work  and  that  upon  which  he 
did  the  State  the  best  service,  is  found  in  the 
mass  of  bills  which  did  not  get  into  the  stat- 
utes. It  is  said  that  in  the  hundred  days  he 
reported  a  thousand  bills  for  indefinite  post- 
ponement, and  very  few  bills  so  reported  were 
ever  passed.  Considering  the  rapidity  with 
which  one  in  his  position  was  compelled  to 
think  and  act,  under  such  circumstances,  it  is 
a  curious  fact  that  every  measure  that  was 
passed  against  his  opposition,  on  the  ground 
of  unconstitutionality,  and  that  has  since  come 
up  for  judicial  determination,  has  been  de- 
clared to  be  unconstitutional.  Perhaps  the 
most  prominent  of  these  was  the  revenue  bill 
passed  at  that  session,  against  which  he  voted 
and  spoke,  and  filed  a  written  protest.  At 
the  very  next  session  the  legislature  passed  a 
new  bill,  bringing  it  into  harmony  with  the 
view'S   which    he   then   expressed. 

Judge  Fox  was  commissioned  by  Governor 
Waterman  a  Justice  of  the  Supreme  Court  in 
June,  1889.  in  place  of  Hon.  Jackson  Temple, 
resigned,  and  he  served  to  the  close  of  the 
following  year. 


In  the  seventeen  and  a  half  months  which 
covered  Judge  Fox's  period  on  the  Supreme 
bench  he  did  a  larger  volume  of  work  than  any 
other  man  connected  with  the  court,  and  much 
of  it  was  in  cases  involving  grave  questions 
of  corporation  and  constitutional  law.  His 
opinion  in  the  Jessup  case  is  the  only  one.  so 
far  as  we  know,  that  has  ever  been  attacked, 
and  that  was  only  by  the  counsel  for  the  los- 
ing side.  It  has  now  become  the  acknowledged 
rule  of  decision  all  over  the  United  States.  On 
a  question  of  constitutional  law,  we  believe 
he  has  never  been  overruled  in  any  position 
taken  by  him.  either  on  the  bench,  in  the  legis- 
lature, or  at  the  bar.  In  one  case  which  the 
United  States  Supreme  Court  decided  against 
him,  he  told  his  client  in  advance  that  it  would 
be  so:  his  object  was.  however,  to  force  a  di- 
rect decision  on  the  point  involved,  as  dis- 
tinguished from  an  inferential  one,  so  that 
he  might  use  it  in  another  case  afterwards,  and 
he  succeeded.. 

For  twenty-five  years  before  his  elevation 
to  the  Supreme  bench,  Mr.  Fox  had  his  office 
in  San  Francisco.  Besides  his  duties  as  at- 
torney of  the  water  company,  he  was  engaged 
in  general  practice,  about  half  of  the  time  in 
partnership  with  A.  and  H.  C.  Campbell,  and 
the  balance  of  the  time  in  partnership  with 
M.  B.  Kellogg,  until  the  year  1889.  when  F. 
R.  King  w^as  added  to  the  firm. 

Mr.  King,  whose  father  was  the  distinguished 
Thos.  Starr  King,  withdrew  altogether  from 
the  legal  profession  in  1895.  Since  that  time 
Judge  Fox  has  been  in  partnershiu  with  Mr. 
Roscoe   S.   Gray. 

Judge  Fox  has  three  children  living,  two  of 
whom  have  married.  Since  the  year  1875  he 
has  resided  in  the  city  of  Oakland. 


JAMES  A.  GIBSON. 

Ex-Judge  James  A.  (iihson,  one  of  the  able 
men  at  the  Los  Angeles  bar,  is  a  native  of 
Boston,  Massachusetts,  and  was  born  August 
21,  1852.  He  came  to  California  in  1874  and 
located  first  at  San  Bernardino.  He  was  ad- 
milted  to  the  bar  there,  in  the  old  Eighteenth 
District  Court,  June  13,  1879;  and  to  the  bar 
of  the  Supreme  Court,  April  19,  1882.  In  1884 
he  was  elected  Superior  Judge  of  San  Ber- 
nardino county,  on  the  Republican  ticket,  for 
the  term  of  six  years,  from  tlie  first  Monday 
in  January,  1885,  and  served  until  in  May, 
1888,  when  he  resigned.  In  the  latter  year  he 
was  appointed  one  of  the  commissioners  of 
the  Supreme  Court.     This  office  he  held  until 


E.   C.  Hart 


History  of  the  Bench  and  Bar  of  California. 


1()1 


January  i,  1891.  He  then  resigned,  and  wont 
to  San  Diego,  where  he  practiced  law  in  part- 
nership with  John  D.  Works  and  H.  L.  Rives. 
Removing  to  Los  Angeles,  in  June.  iSg".  he 
formed  a  law  partnership  with  John  D.  Bick- 
nell  and  W.  J.  Trask,  under  the  firm  name  of 
Bicknell,  Gibson  &  'IVask,  which  still  con- 
tinues. 

Judge  Gibson  is  the  vice-president  of  the 
American  Bar  .Association  for  California.  He 
has  been  twice  married.  The  death  of  his  first 
wife  caused  his  resignation  as  Supreme  Court 
Commissioner.  He  has  four  children,  two  by 
his  first  wife  and  two  by  the  present  Airs. 
Gibson. 


E.    D.    HAM. 


The  worthy  Superior  Judge  of  Napa  county 
was  born  in  Alabama  in  1839.  His  father,  a 
farmer,  removed  with  his  family  to  Arkansas 
in  1854.  The  son  worked  on  the  farm  in 
summer,  and  attended  a  subscription  school  in 
winter.  In  1857,  through  the  aid  of  Hon. 
David  Walker,  of  Fayetteville,  he  entered  Ar- 
kansas College,  afterwards  studied  law.  and 
had  just  commenced  practice,  when  the  Civil 
War  opened.  He  went  north  and  joined  the 
Union  army  under  General  Curtis,  February 
15,   1862. 

For  his  conduct  on  the  field  he  received  tm- 
qualified  commendation  from  his  superior  offi- 
cers. Colonel  B.  O.  Carr,  one  of  General 
Curtis'  stafif,  said :  "Ham  was  such  a  bright 
young  fellow  that  he  was  soon  given  command 
of  a  corps  of  scouts,  and  before  the  close  .of 
the  war  he  was  a  Major." 

Judge  Ham  later  was  on  the  stafif  of  General 
John  M.  Schofield,  who  was  afterwards  Gen- 
eral-in-Chief of  the  United  States  army. 

The  confidence  the  young  Captain  then  in- 
spired was  evidenced  by  an  order  issued  by 
General  Schofield  at  Cassville,  October  1,3, 
1862,  directing  all  commanders  in  the  army 
of  the  frontier  to  furnish  the  Captain,  as 
chief  of  scouts,  with  whatever  number  of  men 
he  might  require.  His  promotion  to  be  Major 
followed  the  battle  of  Prairie  Grove  in  De- 
cember,  1862. 

President  Lincoln,  in  March,  1865,  at  the 
request  of  Major-General  Steele  and  Governor 
Murphy,  appointed  Major  Ham  United  States 
district  attorney  for  the  western  district  of 
Arkansas,  comprising  eleven  counties,  to  which 
the  Si.x  Indian  Nations  were  added.  In  1868 
he  was  appointed  Judge  of  the  Circuit  Court 
for   the   fifth   district   of   .•\rkansas,   and   occu- 


pied that  bench  until  April  i.  1874,  when  he 
came  to  California.  He  located  at  Napa,  and 
began  the  practice  of  law.  In  1890  he  was 
elected  as  a  Republican.  Suprerior  Judge  of 
Napa  county.  He  served  the  full  term  of  six 
years,  and  was  re-elected  in  1896.  Judge  Ham 
is  married,  and  has  three  grown  daughters. 


E.  C.  HART. 

Elijah  Carson  Hart,  a  Judge  of  the  Su- 
perior Court  of  Sacramento  county,  was  born 
near  Carson  City,  Nevada,  in  an  immigrant 
wagon,  his  parents  being  at  the  time  on  their 
way  across  the  plains,  bound  for  California. 
It  was  in  the  year  1854.  At  the  age  of  twelve 
years  he  began  to  learn  the  trade  of  printer, 
which  being  acquired,  he  worked  thereat,  set- 
ting type  on  the  same  newspaper,  until  he  was 
twenty.  He  then  became  local  reporter  on 
the  Marysville  Daily  Appeal.  In  the  follow- 
ing year  he  took  editorial  charge  of  the  Oro- 
ville  Mercury,  editing  the  paper  for  six 
months.  He  then  went  to  Willows,  now  the 
county  seat  of  Glenn  county,  and  established 
the  Journal,  a  weekly  paper,  which  he  pub- 
lished  and   edited   for   six   years. 

Judge  Hart  began  the  study  of  law  in  1884. 
It  was  at  Sacramento,  in  the  office  of  his 
brother,  A.  L.  Hart,  who  had  been  attorney- 
general  of  the  State  for  the  years  1880-81-82. 
In  August,  1885,  he  was  admitted  to  prac- 
tice by  the  Supreme  Court.  In  the  following 
si)ring  he  was  elected  city  attorney  of  Sac- 
ramento, and  served  the  term  of  two  years. 
He  was  elected  a  member  of  the  assembly  in 
the  fall  of  1888,  for  the  twenty-eighth  legis- 
lative session — which  opened  in  January,  1889. 

He  continued  uninterruptedly  in  public  life, 
being  elected  city  attorney  again  in  the  spring 
of  1890,  and,  for  a  third  time,  two  years  later. 
He  resigned  the  ])iace  at  the  end  of  1892.  to 
enter  the  State  senate,  having  been  elected 
to  rei)resent  Sacramento  county  in  that  body. 
During  all  this  period  he  kept  in  law  prac- 
tice ill  so  far  as  it  did  not  interfere  with  his 
Mriii-i:il   duties. 

In  the  fall  of  1896  he  was  elected  a  Judge 
ot"  the  Superior  Court  of  Sacramento  county, 
and  went  on  llie  l)enoli.  just  as  his  senatorial 
term  expired,  in  January.  1897.  His  term  will 
expire  in  January,  1903.  He  has  held  court  for 
his  I)rotlier  Superior  Judges  in  quite  a  number 
of  oilier  counties,  jiresiding  in  many  important 
cases. 

I'lu-    Judge    was    married,    ;it    the    age    of 


708 


History  of  the  Bench  and  Bar  of  California. 


twenty-one,  to  Miss  Addie  Vivian,  a  niece  of 
the  famous  Indian  fighter.  Kit  Carson. 

Hon.  A.  L.  Rhodes  ex-Justice  of  our  Su- 
preme Court,  *no\v  a  Judge  of  the  Superior 
Court  at  San  Jose,  is  an  uncle  of  Judge  Hart, 
and  came  across  the  plains  in  the  same  train 
of  ox-teams  with  the  Judge's  parents. 


J.  C.  B.  HEBBARD. 

J.  C.  B.  Hebbard,  Judge  of  the  Superior 
Court  of  San  Francisco,  was  born  in  Canada 
on  April  ii,  1854.  He  came  to  California  in 
1862.  and  was  educated  in  the  public  schools 
of  Nevada  county  and  at  the  College  of  St. 
Augustine  at  Benicia.  He  was  admitted  to  the 
bar  by  the  Supreme  Court  in  May,  1870.  and 
began  his  law  practice  in  San  Francisco.  He- 
was  married  in  1889  to  Miss  Martha  Schroth, 
daughter  of  Charles  Schroth,  one  of  San  Fran- 
cisco's well-known  leading  pioneers.  Judge 
Hebbard  was  elected  to  the  bench  of  the  Su- 
perior Court  of  San  Francisco  in  1890,  and 
re-elected  in  1896.  His  current  term  ends  in 
January,  1903.  His  name  became  particularly 
and  deservedly  familiar  throughout  the  United 


States  because  of  his  judicial  action  in  the 
celebrated  case  of  Fox  vs.  Levy  et  al.,  uni- 
versally known  as  the'  Hale  &  Norcross  case. 
That  case  was  commenced  at  San  Francisco  in 
the  year  1891,  by  the  plaintiff,  a  stockholder  of 
the  corporation.  Hale  &  Norcross  Silver  Min- 
ing Company,  who  charged  that  defendants, 
some  of  whom  were  directors  of  the  corpora- 
tion, having  secured  complete  control  of  its 
affairs,  conspired  to  defraud,  and  did,  in  fact, 
defraud  it  of  property  to  the  value  of  $2,- 
100.000.  Trial  of  the  case  was  commenced  on 
the    i8th    day   of   November,    1891,    the    result 


being  that  Judge  Hebbard  rendered  a  decision 
wlierehy  he  awarded  to  plaintiff  a  recovery  of 
$1,011,835.  and  appointed  a  receiver  to  enforce 
collection  of  the  judgment,  to  secure  the  ben- 
efit thereof  to  the  stockholders  of  the  corpora- 
tion. Upon  an  appeal  from  this  judgment  and 
order,  the  Supreme  Court  of  the  State,  tak- 
ing occasion  to  advert  to  the  large  amount  in 
controversy,  the  difficulties  presented  by  the 
subject  of  litigation,  the  great  length  of  the 
trial,  the  immense  mass  of  evidence,  and  the 
ability,  industry  and  ingenuity  of  counsel, 
whicli  combined  to  raise  an  unusual  number 
of  difficult  questions  for  consideration,  re- 
duced the  recovery  awarded  to  plaintiff  to  the 
sum  of  $210,197.30,  directed  a  new  trial  of  the 
case  as  to  certain  issues,  and  affirmed  the  or- 
der api)ointing  a  receiver  to  collect  the  judg- 
ment. 

Afterwards  the  case  encountered  many  vicis- 
situdes of  law,  the  upshot  being  that  in  Octo- 
ber, 1898,  plaintiff  concluded  to  accept  the  re- 
covery first  confirmed  by  the  Supreme  Court, 
rather  than  risk  further  uncertainties,  and  con- 
sented to  a  decision  by  which  final  judgment 
for  that  amount  entered.  Thereupon  the  re- 
ceiver, under  the  direction  of  Judge  Hebbard, 
on  November  7,  1898,  collected  for  principal 
and  interest  on  the  judgment  the  sum  of  $304,- 
447.72,  and  within  thirty  days  thereafter  paid 
the  dividend  of  $1.50  per  share  declared  out  of 
said  sum,  to  the  stockholders  of  the  company. 
Those  cognizant  of  the  merits  of  this  fiercely 
contested  lawsuit  are  unstinted  in  their  praise 
of  Judge  Hebbard's  fair  and  forceful  action 
throughout  the  litigation,  and  its  remarkably 
good  results. 

Judge  Hebbard  presides  in  Department  Four 
of  the  Superior  Court,  which  has  been  one  of 
the  busiest  departiuents  of  that  court,  and  has 
most  satisfactorily  disposed  of  a  great  mass 
of  important  and  complex  judicial  work. 


ADDISON   C.   HINKSON. 

A.  C.  Hinkson  came  from  the  State  of  Mis- 
souri, in  1852,  when  a  mere  boy,  and  located 
in  Amador  county.  There,  in  1865,  he  was 
elected  county  recorder  and  auditor,  and  at 
the  expiration  of  his  term  was  elected  county 
clerk  by  a  larger  vote  than  was  received  by 
any  candidate  for  any  office  in  his  county. 
At  the  expiration  of  his  term  as  clerk  he 
located  in  Sacramento  and  engaged  in  the 
practice  of  the  law,  and  for  twelve  years  was 
the  partner  of  the  late  Judge  J.  W.  Armstrong. 
Though  he  had  always  been  a  Democrat  in 
politics,    he    was    elected    for   three    successive 


cAddison  C.  Hinkson 


History  of  the  Bench  and  Bar  of  California. 


711 


term?,  superintendent  of  public  schools  of 
Sacramento  city,  against  a  large  Republican 
majority.  He  was  a  director  of  the  Sacra- 
mento Free  Library  for  eighteen  years.  In 
1894,  when  an  additional  Superior  Judgeship 
was  provided  for  Sacramento  county.  Gov- 
ernor Budd  appointed  him  to  the  place.  The 
reputation  which  he  acquired  on  that  bench 
is  illustrated  by  an  editorial  of  the  Sacra- 
mento Record-Union,  a  leading  Republican 
paper  of  Sacramento,  which  was  published 
when  he  retired  from  office.  It  is  as  fol- 
lows : 

"With  the  passing  of  the  old  year  there  re- 
tires  from  the   Superior   Court  of  this  county 
a    jurist    whose    failure    to    remain    upon    the 
bench    is    the    cause    of    common    expressions 
of  regret  among  all  the  people.     That  failure 
was   due   to   a    remarkable   and   unusual    com- 
bination    of    circumstances     which    in     honor 
bound    him    to    accept    the    situation.      Judge 
Hinkson  came  to  the  bench  as  the  first  judge 
of    the    third    department.      It    is    simple    jus- 
tice to  say  that  when  he  was  elevated  to  that 
position  the  breadth  and  judicial  mind  of  the 
man  and  his  special  fitness  for  the  place  were 
not  realized  even  by  his  nearest  friends,  since 
he  had  not  pushed  himself  into  notice,   while 
modesty   and   unpretentious  bearing  had   kept 
his   real  ability  much  in  the  background.    But 
he  proved,  when  once  on  the  bench,  to  be  one 
of  the  best  judges.    His  peculiar  fitness  for  the 
judicial    office    was    at    once    made    manifest, 
his   breadth  of  mind,   perfect   impartiality,   his 
inflexibility    of    purpose    in    doing    what    he 
conceived    to    be    duty,    regardless    of    conse- 
quences,   or    of   persons,    place    or    station,    to 
individuals,    enabled    him    to    hold    the    scales 
of   justice   on    such   even   balance   as   to   elicit 
the  admiration  and  praise  of  even  those  upon 
whom  the  judgments  of  the  court  descended. 
Aside      from      this,    Judge    Hink.son    became 
known   all   over  the   State  as   the   modern  ex- 
emplar  of  judicial   promptness   and   precision. 
His  rules  and   practice   in  this  regard  became 
the  terror  of  the  laggard  and  evil  doer  and  the 
admiration     of    the    prompt.       He    held     that 
the    time    of    the    court    is    the    time    of    the 
peo])lc.   and    it    is   no   more   to   be   wasted   and 
trilled    with    than    is    the    money   and    property 
of    the    people.      His    inflexible    demand    that 
respect   be    paid    the    court   and    its   processes, 
as    representing    the    dignity    and    supremacy 
of  the  people,  was  enforced  with  such  firmness 
and   perfect   impartiality  as   to  awaken   atten- 
tion everywhere  and  win  for  him  the  respect 
of   the   bar   and    the   applause   of   citizens.'    It 
may    be    said    that    those    who    suffered    most 


under  his  conceptions  of  the  majesty  of  the 
law  and  the  dignity  of  the  people's  tribunal, 
are  today  loudest  in  commending  his  course. 
Judge  Hinkson  retires  from  the  bench  to  a 
practice  awaiting  him  with  the  proud  dis- 
tinction of  having  done  an  important  work 
in  elevating  the  character  of  the  bench  in 
the  estimation  of  the  people.  He  proved  to 
them  it  is  not  always  the  man  who  is  most 
pretentious  at  the  bar  who  is  best  fitted  for 
the  judicial  office.  That  dignity,  firmness, 
impartiality,  studious  habits  and  thoroughness 
are  what  the  people  respect  in  their  courts, 
and  will  always  sustain.  Learned  in  the  law, 
broadminded  in  view,  sympathetic  and  tender, 
inflexible  in  the  discharge  of  duty,  having 
such  profound  reverence  for  the  principles  of 
justice  that  nothing  could  sway  him  in  its 
administration  to  purposely  deflect  it  a  hair's 
breadth  from  its  true  course.  Judge  Hinkson 
retires  after  a  brief  career  on  the  bench  with 
the  respect,  admiration  and  regard  of  all  the 
people." 

Judge  Hinkson  has,  since  his  retirement 
from  the  bench  been  engaged  in  the  practice 
of  the  law  at  Sacramento.  Mr.  C.  A.  Elliott, 
a  most  promising  young  lawyer,  has  been  his 
partner    for    some    years. 


JAMES  B.  HOLLAWAV. 

James  Bledsoe  Hollavvay,  a  veteran  of  the 
Los  Angeles  bar.  was  born  on  the  2d  day  of 
February.  1829.  in  Sumner  county.  Tennessee. 
He  was  educated  in  the  common  schools.  On 
.April  15th.  1850.  in  c(inii)any  with  six  other 
young  men,  he  left  his  home  for  a  trip  across 
the  plains  to  California,  traveling  with  mule 
teams.  They  arrived  at  Nevada  City,  Cal.,  Oc- 
tober 4th.  1850.  by  what  was  called  the  Truckee 
route,  all  in  good  health,  losing  only  one  mule 
on  the  tri]).  He  worked  in  the  placer  mines 
during  the  winter  near  Auburn,  Placer  county: 
mined  on  tlie  .\nierican  river  during  the  sum- 
mer of  1851.  lie  was  one  of  the  company  of 
thirtrrn  tli;il  bnilt  what  w;is  known  as  the 
Jones.  Truman  iJc  Co.  ditch,  from  the  North 
Fork  of  the  Cosunmes  river  to  Diamond 
.Springs,  in  1853.  at  a  cost  of  $90,000.  which  was 
111  It  a  success  to  the  builders.  Our  friend  lost 
his  all.  He  borrowed  $10.00  and  left  Diamond 
Springs  by  stage  for  Sacramento;  paid  $8.00 
stage  fare.  $1.00  for  breakfast,  on  the  road, 
arrived  the  same  day  with  one  silver  dollar. 
That  was  in  May.  1854.  He  hired  out  as  pilot 
on  the  Water  Lily,  a  sidewhecl  steamer  then 
running  on   the  Upper   Sacramento  river.     He 


12 


History  of  the  Bencli  and  Bar  of  California. 


got  a  salary  of  $300  per  month.  After  working 
two  months,  he  got  the  ague,  and  quit,  and 
went  north  to  Yreka.  He  mined  on  Humbug 
Creek,  and  was  in  the  beginning  of  what  is 
known  as  the  "Klamath  War,"  with  the  In- 
dians in  1855-6.  He  held  a  commission  as 
First  Lieutenant  of  the  Siskiyou  Guards.  Con- 
tracting rheumatism,  he  returned  to  Sacra- 
mento in  May,  1856. 

Mr.  Hollaway  was  in  San  Francisco  during 
the  time  of  the  Vigilance  Committee  of  1856, 
and  saw  Cora  and  Casey  taken  out  of  jail  on 
that  memorable  Sunday.  Going  to  Sonoma 
county,  he  bought  a  ranch  on  which  a  portion 
of  the  town  of  Cloverdale  now  stands,  and 
went  into  the  cattle  business.  He  was  reason- 
ably successful.  He  was  twice  elected  consta- 
ble of  the  townshi]!.  He  removed  to  what  is 
now  Lake  county  in  ih'6i.  There  he  was  elected 
justice  of  the  peace  in  1862.  served  one  term. 
He  was  a  member  of  the  Court  of  Sessions.  In 
1863  he  was  elected  County  Judge,  and  served 
the  term  of  four  vears.  He  was  re-elected  in 
1867,  and  served  out  the  second  term.  He  re- 
moved to  Los  Angeles  county  in  1872,  locating 
near  Downey.  He  has  since  been  engaged  in  the 
practice  of  the  law  in  the  courts  of  that  county. 
He  was  elected  by  the  Democratic  party  to  rep- 
resent that  county  in  the  assembly  in  the  year 
1877.  After  the  end  of  the  session,  he  re- 
turned to  Downey.  In  1882  he  located  at  Los 
Angeles  City,  and  opened  an  office  in  the 
Temple  Block.  In  1884  he  entered  into  co- 
partnership with  W.  T.  Kendrick.  known  bv 
the  firm  name  of  Hollaway  &  Kendrick.  which 
continued  until  about  1895.  Mr.  Hollaway 
now  resides  at  Monrovia,  the  "Gem  of  the 
Foot-hills,"  enjoying  a  delightful  climate,  and 
pure  water  among  orange  groves  and  banks 
of  flowers.  On  the  2d  day  of  February,  1901, 
he  was  seventy-two  years  of  age,  hale  and 
hearty,  and  .shows  the  results  of  having  lived 
over  a  half-centurv  in  California. 


RODNEY  J.  HUDSON. 

Judge  Hudson  was  born  at  St.  Helena,  Cali- 
fornia, and  is  now  forty-eight  years  old.  He 
received  his  literary  education  at  the  Uni- 
versity of  Michigan,  at  Ann  Arbor.  His  law- 
education  was  acquired  at  Cumberland  Uni- 
versity, Lebanon,  Tennessee.  He  first  began 
law  practice  at  Los  Angeles,  as  a  partner  of 
Anson  Brunson,  who  was  then  the  leading 
lawyer  in  Southern  California.  He  remained 
with    him    two    years,    and    was    then    elected 


district  attorney  of  Los  Angeles  couiUy.  He 
served  out  his  term  and  then,  by  reason  of 
ill  health,  moved  to  Lake  county,  California, 
and  followed  the  practice  there.  In  January, 
1880,  he  took  his  seat  as  Superior  Judge  of 
that  county,  which  he  retained  for  eleven  years. 
Upon  his  retiring  from  the  bench  in  January, 


1891,  he  resumed  the  practice  of  law.  In  Jan- 
uary, 1899,  he  removed  to  Hanford,  Califor- 
nia, and  began  the  practice  of  law  there,  in 
connection  with  John  r.  Pryor.  That  asso- 
ciation still  continues. 

Judge  Hudson's  mother  and  father  are  both 
California  pioneers,  having  crossed  the  plains 
from  a  Southern  state  before  the  gold  seekers, 
in  1845.  His  father  was  an  officer  with  Fre- 
mont, under  the  Bear  flag.  The  "History  of 
Napa  and  Lake  Counties,"  published  in  1881, 
has  a  fuller  sketch  of  our  subject. 


JOSEPH  W.  HUGHES. 

Joseph  W.  Hughes  was  born  at  F"ayette, 
Howard  county.  Missouri,  on  the  loth  day  of 
June,  i860.  His  parents  were  J.  Romeo  and 
Priscilla  Ann  Hughes,  both  of  whom  were  na- 
tives of  the  State  of  Kentucky.  His  father's 
occupation  was  that  of  farmer.  The  Judge 
w^as  educated  at  Central  College.  Fayette,  Mis- 
souri. He  came  to  California  in  February, 
1882,  and  has  since  resided  at  Sacramento. 
He  was  admitted  to  practice  law  on  the  4th 
day  of  May,  1886,  in  the  Supreme  Court  of  this 
State,  and  on  the  12th  day  of  December,  1892, 
was  admitted  in  the  Supreme  Court  of  the 
United  States.  He  was  elected  Judge  of  the 
Superior  Court  in  November,  1896,  and  his 
term   of   office   will   expire   on   the    ist   day   of 


History  of  the  Bench  and  Bar  of  California. 


713 


January.  1903.  He  was  married  on  the  i8th 
day  of  April,  1893.  to  Nellie  M.  Stanley,  daugh- 
ter of  Lee  Stanley,  ex-sheriff  of  Sacramento 
county. 

Judge  Hughes  went  on  the  bench  an  e.\- 
perienced  and  able  lawyer,  and  his  decisions 
and  rulings  as  a  Judge,  as  well  as  his  manner 


of  trying  cases,  and  his  general  conduct  of 
his  important  office  have  met  the  hearty  ap- 
proval of  the  bar,  and  added  greatly  to  his 
strength  with  the  people.  His  continuance  on 
the  bench  for  a  long  period  is  to  be  taken 
for  granted. 


A.  W.  HUTTON. 


Aurelius  W.  Hutton,  ex-Superior  Judge  of 
Los  Angeles  county,  was  born  in  Greene 
county,  Ala])ama,  July  23,  1847.  He  was  de- 
prived of  his  parents  when  a  little  child,  his 
father  dying  in  1852,  and  his  mother  in  1854, 
and  he  was  reared  in  the  fatnily  of  his  eldest 
sister,  Mrs.  D.  H.  Williams,  whose  husband 
was  his  guardian.  He  entered  the  University 
of  Alabama,  a  military  school,  in  1863,  becom- 
ing a  member  of  the  Alabama  Corps  Cadets. 
He  was  pursuing  his  studies  there  in  April, 
1865,  when,  shortly  before  the  close  of  the 
Civil  VV^ar,  the  institution  was  destroyed  by 
the  Federal  forces.  In  the  following  Jan- 
uary lie  began  the  study  of  law  in  the  office 
of  Bliss  &  Snedecor,  in  Gainsville,  Alabama, 
Mr.  Bliss  was  a  lawyer  of  distinction,  from 
New  England,  and  had  been  associated  with 
Joseph  G.  Baldwin,  who  became  the  great  Cal- 
ifornia Judge.  After  reading  a  year  and  a 
half.  Mr.  Hutton  entered  the  law  department 
of    the     University     of    Virginia,     being     now 


twenty  years  of  age.  He  covered  the  courses 
of  study  of  both  the  junior  and  senior  classes 
in  one  year,  and  graduated  in  June,  1868,  a  few 
weeks  before  bis  twenty-first  birthday,  with 
the  degree  of  B.  L.  He  was  admitted  to  prac- 
tice by  the  Supreme  Court  of  Alabama  in  Jan- 
uary,  1869. 

Judge  Hutton's  professional  career  has  been 
entirely  cast  in  California,  and  in  Los  An- 
geles county.  He  started  for  this  State  in  the 
month  of  his  admission  to  the  bar,  sailing 
from  New  York  City  on  January  23,  and  ar- 
riving at  San  Francisco,  by  way  of  Panama, 
February  15,  1869.  Settling  at  Los  Angeles 
within  sixty  days  thereafter,  he  there  began 
the  business  of  his  life. 

In  December,  1872,  he  was  elected  city  at- 
torney of  Los  Angeles,  and  was  re-elected  in 
1874,  serving  four  years.  In  that  capacity  he 
drafted  the  first  regular  city  charter  of  Los 
Angeles,  and  the  revised  charter  of  1876 — 
which  were,  in  part,  incorporated  in  tlie  re- 
vised charter  of  1878. 

When,  by  act  of  the  legislature,  of  February 
7,  1887,  two  additional  Judges  were  added  to 
the  Superior  bench  of  Los  Angeles  county, 
Judge  Hutton  was  recommended  to  Governor 
Washington  Bartlett  for  one  of  the  appoint- 
ments. At  the  meeting  of  the  bar,  held  to 
consider  the  merits  of  candidates,  he  received 
the  endorsement,  by  a  vote  of  82  out  of  104 
votes  cast.     There  were  six  candidates  under 


consideration,  and  judge  llutton  received  llie 
highest  vote  of  ail.  Iieing  nominated  on  the 
first  ballot.  Ihe  (Governor  appointed  him  to 
the  office,  wliicli  he  held  until  the  next  general 
election,  a  period  of  nearly  two  years.  He 
was  nominated  on  the  Democratic  ticket  for 
re-election,   and   r;ui   some  800  votes   ahead  of 


714 


History  of  the  Bench  and  Bar  of  California. 


his  ticket,  but  the  Republicans  carried  the 
county  by  a  plurality  of  about  4,000.  The 
Judge,  at  the  end  of  his  term,  resumed  the 
practice   of  law. 

Judge  Hutton  was  appointed  United  States 
attorney  pro  tern,  for  the  district  of  Southern 
Calitornia  by  Judge  Field,  in  1889,  and  after- 
wards was  one  of  the  special  counsel,  with 
Alexander  Campbell,  in  the  Itata  case  at  the 
time   of  the   threatened   trouble   with   Chile. 

Judge  Hutton  was  one  of  the  original  in- 
corporators of  the  San  Gabriel  Orange  Grove 
Association — Indiana  Colony — wliich  founded 
the  city  of  Pasadena. 

He  married,  in  February,  1874.  Miss  Kate 
Travis,  who  was  born  in  his  own  native  state, 
and  who  came  with  her  parents  to  California 
on  the  same  steamer  with  him,  just  five  years 
before.  They  have  four  daughters  and  two 
sons   living. 

T.  E.  JONES. 

Theodore  Eldon  Jones,  Judge  of  the  Su- 
perior Court  of  Trinity  county  for  the  full 
period  of  twenty  years  that  has  elapsed  since 
the  court  was  created,  was  born  in  Herkimer 
county,  New  York,  December  30,  1830.  His 
father,  Eldon  Jones,  a  native  of  Wales,  came  to 
America  early  in  life.  Acquiring  a  competence, 
he  invested  it  all  in  a  sea-going  vessel  and  a 
stock  of  merchandize,  and  sailed  as  super- 
cargo from  New  York  City  for  a  foreign  port, 
in  1835.  He  was  lost,  with  the  vessel,  at  sea. 
His  widow,  mother  of  our  subject,  was  a  na- 
tive of  New  York  state,  her  maiden  name  be- 
ing Ann  Kingsbury,  resided  in  Philadelphia 
for  about  five  years  after  her  husband's  death, 
and  then  removed  with  her  son,  who  was 
her  only  child,  to  Illinois.  The  boy  there  grew 
up  to  manhood,  learning  the  printer's  trade. 
He  came  to  California,  overland,  in  1850,  with 
two  of  his  uncles,  arriving  at  Hangtown,  now 
Placerville,  on  the  20th  of  August.  He  settled 
in  Trinity  county  in  1853.  He  there  followed 
the  occupation  of  miner,  on  Trinity  River, 
until  1861.  He  continued  to  be  interested  in 
mines  for  ten  years  longer. 

The  interval  between  our  friend's  life  in 
mining  camps  and  his  long  career  on  the  bench 
was  devoted  to  journalism.  In  1861  he  estab- 
lished the  Trinity  Gazette  at  Douglas  City. 
Its  publication  ceased  after  one  year,  on  ac- 
count of  an  exodus  of  the  people  to  go  into  the 
Civil  War,  and  a  rush  to  new  mining  regions 
at  Washoe  and  in  Idaho. 

In  the  winter  of  1867-68  he  was  a  member  of 
the  assemblv  from  Trinitv. 


In  1871  he  became  editor  of  ilic  Shasta 
Courier.  After  two  years  he  returned  to 
Weaverville,.  with  the  intention  of  resuming 
mining,  but  accepted  an  offer  to  become  editor 
of  the  Trinity  Journal.  His  editorial  service 
was  ended  by  his  election  as  County  Judge,  1 
in  1875,  and  he  served  out  the  four  years'  term  • 
under  the  old  constitution,  which  was  super- 
seded by  the  present  organic  law  in  the  first 
week  of  1880.  He  then  became,  by  election 
in  the  preceding  fall,  the  first  Superior  Judge 
of  Trinity  county.  He  has  been  three  times 
re-elected,  and  his  present  term  will  expire 
on  the  first  Monday  in  January,  1903.  Of 
course,  it  were  idle  to  speak  of  the  excellent 
judicial  qualities  of  such  a  man,  so  long  for- 
tified in  the  confidence  of  his  people. 

Judge   Jones   was   a   Bell   and    Everett   man        ^ 
in  the  Presidential  election  of  i860.    He  joined        *■ 
the   Union   party   at   its   organization   in    1861, 
and   upon    its   dissolution,   in    1867.   he   united 
with    the    Republican    party,    and    has    always 
since  acted  with  it. 

The  Judge  has  done  a  good  deal  of  literary 
work.  A  press  writer  said  of  him  not  long 
ago  that  the  productions  of  his  pen,  in  news- 
papers and  magazines,  are  gems  of  their  class, 
and  that  in  his  stories  of  mining  life,  which 
have  been  his  especial  field  of  literary  labor, 
the  peculiar  charm  of  his  style  is  best  dis- 
played. 

The  Judge  is  a  member  of  the  Masonic  or- 
der, of  the  I.  O.  O.  F..  A.  O.  U.  W.,  and  was 
one  of  the  organizers  in  1880  of  the  Old  Set- 
tlers' Association  of  Trinity  county,  and  has 
represented  several  of  these  orders  in  their 
grand  councils.  He  has  been  thrice  married, 
his  first  wife  having  been  Sarah  Jane  Puter- 
man,  who  died  at  Sacramento ;  his  second  wife 
was  Mrs.  Mary  Barnes,  nee  Willey,  who  died 
in  San  Francisco.  He  was  last  married  to 
Miss  Clara  L.  Huggins,  a  native  of  Nova 
Scotia.  A  daughter  by  the  first  named  is  the 
wife  of  George  I.  Thompson,  of  Portland, 
Oregon. 

The  Judge  is  the  best  authority  to  consult 
on  all  matters  pertaining  to  the  history  of 
Trinity  county. 


EDWARD  INSKIP  JONES. 

Judge  Jones  was  born  in  Cincinnati.  Ohio, 
December  3,  1844.  He  was  brought  by  his 
parents  to  San  Francisco,  where  the  family 
.-•.rriverl  in   May,   1850. 

His  primary  education  was  in  the  public 
schools  of  San  Francisco.     He  was  present  at 


Ed<ward  Ins  kip  Jones 


History  of  the  Bench  and  Bar  of  California. 


V 


the  organization  and  entered  as  a  pupil  in  the 
first  public  school  estsljlished  in  thai  city.  His 
further  scholastic  training  was  in  the  Univer- 
sity of  the  Pacific  at  Santa  Clara. 

In  Agril,  1870,  he  was  admitted  to  the  bar 
of  the  Supreme  Court  at  Sacramento.  The 
class  of  applicants  numbered  fourteen,  of 
whom  but  eight  were  admitted.  Of  these, 
three  have  since  served  as  Judges  of  the  Su- 
perior Court,  one  was  appointed  United  States 
district  attorney,  one  was  elected  attorney- 
general,  and  one  has  since  beconie  an  es- 
pecially distinguished  member  of  the  bar. 

Judge  Jones'  first  public  office  was  that  of 
city  attorney  of  the  city  of  Stockton,  which 
office  he  held  for  two  years.  He  was  elected 
to  the  assembly  from  Stockton  district  in 
1894.  He  was  chairman  of  the  committee  on 
capital  and  labor,  and  was  an  active  and  prom- 
inent member  of  the  judiciary  committee. 

In  1896  he  was  elected  one  of  the  Judges 
of  the  Superior  Court  in  and  for  San  Joaquin 
county,  which  position  he  now  holds.  His 
professional,  as  well  as  his  official  career,  has 
always  been  marked  by  close  attention,  hard 
work  and  conscientious  devotion  to  detail, 
joined  with  high  character,  good  health  and  a 
genial   disposition.  J.   G.    S. 


M.    A.    LUCE. 


The  following  sketch  is  taken  substantially 
from  the  book  called  "Southern  Califor- 
nia." 

Judge  M.  A.  Luce,  one  of  the  best  known 
and  most  prominent  men  in  every  movement 
to  advance  the  best  interests  of  San  Diego, 
comes  of  good  New  England  stock.  His 
father  was  a  native  of  Maine,  and  a  preacher 
in  the  Baptist  church.  His  mother  was  a  na- 
tive of  New  Hampshire,.  By  his  parents 
he  is  also  connected  with  the  Masons  and 
Hoyts  of  New  Hampshire. 

He  was  born  near  Quincy,  Illinois,  in  1842. 
He  lived  with  his  parents  in  Central  Illinois 
until  fourteen  vears  of  age,  when  he  left 
home  to  prepare  for  college  at  Hillsdale, 
Michigan.  He  had  entered  the  Sophomore 
class  when  there  came  an  eventful  April  day 
in  1861,  when  the  call  to  arms  resounded 
through  the  land.  And  on  the  day  after  Eort 
Sumpter  was  fired  upon,  young  Luce  en- 
listed as  a  private  soldier,  and  afterward 
joined  the  4th  Michigan  Infantry.  During  the 
war  he  took  part  in  all  the  battles  of  the 
Army  of  the  Potomac,  and  these  were  many, 
including    Bull    Run,    Malvern    Hill,    Second 


Manassas,  Chancelorsville,  Gettysburg,  the 
Wilderness,  Cold  Harbor  and  Petersburg.  He 
was  wounded  slightly  at  Spottsylvania  while 
with  the  forlorn  hope  in  the  assault  on  Laurel 
Hill,  and  for  his  action  on  that  day  he  re- 
ceived from  Congress  a  medal  of  honor. 

After  the  war  Mr.  Luce  resumed  his  col- 
legiate studies,  and  graduated  from  Hillsdale 
College  in  1866.  He  then  attended  the  Law 
University  at  Albany,  and  was  graduated 
therefrom,  a  member  of  the  same  class  with 
President  McKinley.  He  entered  upon  the 
practice  of  law  in  1868  in  his  native  State, 
at  the  city  of  Bushnell,  of  which  he  was  the 
first  city  attorney,  and  re-elected  to  that  of- 
fice on  the  expiration  of  his  first  term.  While 
practicing  in  Bushnell  he  was  the  attorney  of 
the  First  National  Bank  of  Bushnell ;  local 
attorney  of  the  C.  B.  &  I.  R.  R.  Co.;  and  in 
1872  was  a  candidate  for  the  State  senate. 
In  the  winter  of  1873  his  health  began  to 
fail  and  he  found  it  necessary  to  move  to  a 
climate  where  he  could  continue  the  practice 
of  his  profession. 

That  was  the  time  when  Col.  Tom  Scott 
was  building  his  Texas  Pacific  across  the 
continent,  to  have  its  terminus  on  the  shores 
of  San  Diego  bay.  To  the  city  of  San  Diego 
Mr.  Luce  moved  in  May.  1873,  and  immediate- 
ly opened  a  law  office  and  engaged  in  the  prac- 
tice of  his  profession. 

In  the  fall  of  1875  he  was  elected  Judee 
of  the  County  Court  of  San  Diego  county, 
and  held  that  office  until  the  new  constitution 
went  into  effect  and  terminated  the  jurisdic- 
tion of  that  court  in  January,    1880. 

In  the  fall  of  1880  the  California  Southern 
Railroad  Company  was  organized,  and  he 
was  elected  its  vice-president  and  appointed 
attorney  of  the  company  for  California.  In 
1887  he  was  attorney  for  the  railroad  company, 
the  Pacific  Coast  Steamship  Company,  and 
other  large  corporations;  but  owing  to  con- 
tinued overwork,  he  withdrew  entirely  from 
the  practice  of  the  law  for  two  years  and  de- 
voted himself  entirely  to  recuperation  of  his 
health. 

He  resumed  the  practice  of  the  law  in  1890 
in  the  firm  of  Luce,  McDonald  &  Torrance, 
has  continued  in  the  practice  ever  since,  being 
now  of  the  firm  of   l.uce  &  Sloane. 

Judge  Luce  has  been  interested  in  the  ad- 
vancenu'ut  and  upl)uilding  of  the  city  of  his 
adoption.  Hi-  has  alsti  been  concerned  in  the 
mining  developments  of  the  county  and  is  a 
principal  shareholder  in  the  Shenandoah 
mine  at  Mesa  Grande. 


718 


History  of  the  Bench  and  Bar  of  California. 


In  1889  he  was  apoointed  by  President  Mc- 
Kinley  postmaster  at  the  city  of  San  Diego. 

Judge  Luce  is  six  feet  in  height,  of  slight, 
figure,   and   his    face   has   more   the   look   of  a 


student  than  of  one  immersed  in  business. 
He  has  strong  taste  for  literature  and  pos- 
sesses  a   well-appointed    library. 

J.   H.   LOGAN. 

James  Harvey  Logan,  tiic  first  Superior 
Judge  of  Santa  Cruz  county,  was  born  near 
Rockville,  Indiana,  December  8th.  1841.  He 
lived  on  his  father's  farm,  attending  the  dis- 
trict schools,  until  the  fall  of  1856.  He  then 
entered  the  Waveland  Collegiate  Institute  at 
Waveland,  Ind..  and  completed  a  four-year 
classical  course  in  June,  i860,  wlicn  he  moved 
to  Kansas  City,  Mo.  He  taught  school  at 
Independence,  Mo.,  during  the  summer  and 
fall  of  i860,  and  the  winter  of  1861.  The  se- 
cession movement  in  Missouri  paralyzed  all 
business  in  that  locality  and  threw  him  out 
of  employment.  He  started  for  Omaha  early 
in  April,  1861,  and  went  into  the  service  of 
the  Overland  Telegraph  Company,  then  build- 
ing a  telegraph  line  across  the  deserts  to  Cali- 
fornia. He  arrived  at  Salt  Lake  in  the  fall 
of  1861,  and  from  there  he  came  to  California 
by  overland  stage,  arriving  at  San  Jose,  De- 
cember I2th.  1861.  Shortly  after,  he  entered 
the  law  office  of  Hon.  C.  T.  Ryland.  and  was 
admitted  to  the  bar  in  if<65.  In  1867  he  moved 
to  Santa  Cruz  and  began  tiu-  practice  of  law. 
He  was  dejiuty  district  attorney  under  Julius 
Lee,  and  had  sole  charge  of  the  office  from 
January  ist.  1868.  to  January  1st.  1872.  He 
was  elected  district  attorney  in  1871.  1875.  and 


1877.  and  in  1879  was  elected  the  first  Superior 
Judge  of  Santa  Cruz  county. 

Judge  Logan's  first  term  on  the  bench  ended 
in  January.  1885.  He  was  president  of  the 
Bank  of  Santa  Cruz  County  from  September 
1887.  to  October.  1893.  when  he  was  appointed 
by  Governor  Markham  Superior  Judge,  to  fill 
the  vacancy  caused  by  the  death  of  Hon.  F. 
J.  McCann,  in  September.  1893.  He  was  elected 
Superior  Judge  for  the  unexpired  term  in  1894. 
His  last  term  of  office  expired  January  ist, 
1897. 

He  was  a  wise  and  faithful  judge.  He  is 
now  practicing  law  at  .Santa  Cruz.  He  has  a 
family,  an  elegant  home,  and  is  in  good  cir- 
cumstances. He  is  of  a  tall  figure,  fine  pres- 
ence, genial  temperament  and  companionable, 
and  loves  to  tell  or  to  hear  a  good  story.  He 
is  very  popular  and  deservedly  so.  There  is 
no  other  man  in  the  county  whose  taking  off 
would  be  so  generally  lamented.  He  enjoys 
superl)  health. 


W.   G.   LORTGAX. 

The  parents  of  this  respected  Santa  Clara 
county  jurist  were  both  natives  of  Ireland,  and 
came  to  the  United  States  in  their  youth, 
settling  in  Ohio.  From  Sunshine.  Fruit  and 
Flozccrs.  published  in  San  Jose,  in  1895.  we 
learn  that  the  parents  of  Mr.  Lorigan  removed 
in  1852  from  Cincinnati  to  the  gold  fields  of 
.\ustralia.  and  it  was  while  they  were  teni- 
jiorarily  residing  there,  in  18^^.  that  our  sub- 
ject was  born.  Five  years  later  his  ])arents 
returned  to  America,  settling  in  Santa  Clara 
county.  California,  and  there  the  son  passed 
his  youth  and  early  manhood  until  he  took  up 
his  residence  in  San  Jose,  in  the  same  county 
in  1884,  except  for  a  period  while  attending 
school  in  the  East.  His  education  was  ob- 
tained at  Santa  Clara  College.  California,  and 
at  St.  Vincent's  College,  at  Cape  Girardeau. 
.Missouri.  He  studied  law  witii  the  firm  of 
Moore,  Laine.  Delmas  and  Lieb.  at  San  Jose, 
and  after  a  thorough  courvie  of  preparation,  he 
was  admitted  to  practice  by  the  Supreme  Court 
in  1879.  He  immediately  engaged  in  active 
practice,  and  it  was  not  long  until  he  was  rec- 
ognized as  one  of  the  hot  lawyers  in  the  city. 
In  1890  he  was  elected  to  the  position  of  Su- 
perior Judge  of  Santa  Clara  county,  an  office 
wliich  he  has  filled  with  grace,  dignity  and 
learning.  As  a  judge  he  has  been  impartial 
in  his  rulings,  justly  exacting  regarding  the 
conduct  of  lawyers  in  his  court,  yet  treating 
all  with  a  gentleness  and  courtesy  which  have 


W.   G.  Lorigan 


History  of  the  Bench  and  Bar  of  California. 


721 


won  for  him  the  universal  respect  of  ihe  bar. 
The  Supreme  Court  has  almost  universally 
sustained  the  views  of  Judge  Lorigan  in  mat- 
ters of  law  which  have  been  appealed  from  his 
department. 

Thus  far.  we  have  somewhat  closely  followed 
the  language  used  in  the  publication  named. 

The  Judee  was  re-elected  in  1896.  and  his 
present  term  will  expire  in  January,  1903.  He 
has  charge  of  all  the  criminal  business,  and 
also  tries  one-third  of  the  civil  cases.  There 
are  three  Judges  of  the  Superior  Court  of  his 
county.  Our  information  and  observation 
show  that  the  judgment  of  the  Santa  Clara 
county  bar  accords  with  the  expressed  views 
of  the  San  Jose  Herald,  in  1895,  to-wit :  that, 
"since  his  accession  to  the  bench  Judge  Lori- 
gan has  won  for  himself  an  enviable  reputation 
as  an  able,  clear-headed,  honest-minded  jurist. 
He  has  handled  manj-  important  cases  in  a 
manner  that  has  demonstrated  a  rare  judicial 
ability.  In  personal  at)oearance  Judge  Lorigan 
is  portly  and  dignified,  with  a  smooth,  open 
face,  the  prominent  characteristics  of  which 
are  intelligence,  firmness  and  benevolence." 

The  Judge  is  an  influential  member  of  the 
Young  Men's  Institute,  of  the  American  For- 
esters, and  of  the  Elks. 


JAMES  W.  McKINLEY. 

James  W.  McKinley,  who  was  a  judge  of 
the  Superior  Court  of  Los  Angeles  county  for 
eight  years  (nearly),  ending  in  January,  1897, 
was  born  in  Newcastle,  Pennsylvania,  April 
24,  i8=;7.  He  was  graduated  from  the  literarj' 
department  of  the  University  of  Michigan  in 
1879.  He  prepared  for  the  bar  in  Newcastle, 
Pa.,  and  was  admitted  to  the  bar  of  the  Su- 
preme Court  of  Pennsylvania  in  1881.  After 
practicing  in  his  native  town  for  two  years, 
he  came  to  California  and  located  at  once  at 
Los  Angeles.  This  was  in  April.  1883.  He 
immediately  entered  on  the  practice  in  part- 
nership with  W.  T.  Williams,  under  the  firm 
name  of  Williams  and  McKinley. 

In  December.  1884,  Mr.  McKinley  was 
elected  city  attorney  of  Los  Angeles,  and 
served  the  term  of  two  years  ending  January 
1st,  1887.     He  declined  a  renominalion. 

At  the  legislative  session  of  January-March. 
i88q,  an  act  was  passed  increasing  the  munber 
of  Superior  Judges  of  Los  Angeles  county  from 
four  to  six.  i  he  local  bar  of  Los  Angeles 
city  held  a  meeting  to  consider  the  merits  of 
candidates  for  the  new  positions.  Mr.  Mc- 
Kinley, by  a  vote  of  that  meeting,  receiving  97 


out  of  no  votes  cast,  was  recommended  to 
the  Governor  for  one  of  the  appointments. 
Governor  Waterman  accordingly  commissioned 
him  as  Superior  Judge  on  March  n,  1889.  He 
qualified  on  March  i6th,  took  his  seat  a  week 
later,  and  served  the  short  term  ending  in 
January,  1891.  He  continued  on  the  bench, 
having  been  elected  his  own  successor,  on  the 
Republican  ticket,  at  the  general  election  in  No- 
vember, 1890.  He  then  served  a  full  term  of 
SIX  years,  which  ended  on  the  first  Monday  in 
January,  1897.  un  leaving  the  bench  he  re- 
sumed law  practice  at  Los  Angeles,  in  part- 
nership with  M.  L.  Graft-.  This  association 
lasted  for  about  two  years,  and  since  its  ter- 
mination Judee  McKinley  has  continued  prac- 
tice alone. 

In  1804  the  Judge,  being  then  on  the  Su- 
perior Court  bench,  received  the  endorsement 
of  the  Republican  county  convention  of  Los 
Angeles  for  the  office  of  Supreme  Judge,  but 
was  defeated  for  the  nomination. 

In  the  fall  of  1886,  Judge  McKinley  made  a 
visit  to  the  East,  and  in  October,  married  a 
former  school  companion.  Miss  Lillian  Elder, 
who  was  born  in  his  own  native  town  of  New- 
castle. They  have  one  child,  a  boy  of  nine 
years. 

FRANK  MOODY. 

Judge  Moody  was  born  in  the  state  of  Mis- 
souri, in  the  year  1867.  His  parents  were  of 
Southern  blood— his  father  from  Virginia  and 
his  mother  from  Kentucky.  His  father  came 
to  California  when  our  subject  was  fifteen 
years  old,  and  purchased  a  small  farm  near 
Los  Angeles,  he  having  been  a  merchant  in 
Missouri.  The  son  was  graduated  from  the 
pulilic  scliools  and  completed  his  education  in 
Los  Angeles.  However,  before  completing 
his  studies  in  that  city  he  worked  and  studied 
mucii  without  the  aid  of  any  instructor,  mostly 
at  night.  He  commenced  the  study  of  the  law 
in  iSS'o.  in  iJu-  l.uv  oftice  of  James  G.  Scar- 
borough of  Los  .\ngeles.  A  year  later  he  was 
admitted  to  the  bar,  after  examination  l)efore 
the  Supreme  Court,  .tt  Los  .Angeles.  He 
stood  a  good  exannnation. 

While  pursuing  his  study  ol'  the  law  .Mr. 
Moody  removed  to  Santa  ;\n,-i.  Orange  county, 
California,  with  .Mr.  Scarborougii  (  jn  whose 
office  he  rein.iined  as  assistant,  after  having 
been  admitted  to  practice).  He  served  one 
term  as  assistant  district  attorney  of  Orange 
county  under  .Mr.  Scarborough.  In  January, 
1894,  he  located  in  Willows.  Glenn  county. 
California.      In    November   of   the    same    vear 


722 


History  of  the  Bench  and  Bar  of  California. 


he  was  elected  Superior  Judge  of  the  county, 
at  the  age  of  twenty-seven  years,  and  served 
four  years,  since  which  time  he  has  been 
practicing  law  in  the  same  place.  Probably 
he  was  the  youngest  Judge  in  the  State.  Judge 
Moody's  record  while  on  the  bench  was  most 
excellent.  He  gained  the  confidence  of  the 
business   men   and   others   wliilc   in   office,   and 


has  a  very  good  practice  now,  among  his 
clients  being  many  of  the  wealthiest  corpora- 
tions, and  citizens,  of  the  county. 

Judge  Moody  is  prominent  in  Masonic  and 
church  circles. 


JAMES  G.  MAGUIRE. 

Ex-Judge  Maguire  has  been  a  striking  figure 
in  the  history  of  the  State  and  its  metropolis 
ever  since  his  admission  to  the  bar — indeed, 
his  public  record  runs  back  of  that  import- 
ant incident  of  his  life.  He  has  been  practically 
a  public  man  during  his  whole  career — always, 
whether  in  or  out  of  office,  being  an  earnest 
student  of  measures  affecting  the  people,  and 
being  often  in  the  popular  eye  on  the  stump 
and  the  lecture  platform.  .Active  in  the  legis- 
lature and  in  congress,  busy  at  the  bar,  in- 
dustrious on  the  bench,  he  has  yet,  more  truly 
than  in  these  important  provinces,  kept  in 
touch  with  the  masses  by  his  talks  from  the 
platform  and  in  the  press.  His  large  and 
strong  build,  physically,  and  his  careful  life. 
are  prime  auxiliaries  in  the  proseciuion  of  his 
varied  work,  which  he  is  constantly  accomp- 
lishing without  impairment  of  a  single  faculty. 

James  G.  Maguire  was  born  in  Boston.  Mas 
sachusetts,  on  the  22d  of  February,  1853.     In 
April   of  the   next   year  his   parents,   bringing 
him    with    them,    removed   to    California,    and 


settled  at  Watson ville.  Santa  Cruz  county. 
There  the  son  grew  up,  attending  the  public 
schools  and  the  private  academy  of  Joseph 
K.  Fallon.  Upon  leaving  school,  he  served 
an  apprenticeship  at  the  trade  of  blacksmith- 
ing  for  four  years.  He  afterwards  taught 
school  for  a  year  and  a  half.  Removing  to 
San  Francisco,  which  lias  e\'er  since  been  his 
residence,  he  was  elected  to  the  legislature 
(assembly)  in  1875,  at  the  age  of  twenty-two, 
serving  at  the  Twenty-first  session,  Decem- 
ber, 1875,  April.  1876.  In  January,  1878,  he 
was  admitted  to  the  bar  by  the  Supreme  Court 
of  this  State.  In  1882,  when  he  was  in  good 
practice,  he  was  elected  one  of  the  Judges  of 
the  Superior  Court  of  San  Francisco,  for  a  full 
term  of  six  j'ears,  which  he  served.  Then  vol- 
untarily leaving  the  bench,  he  practiced  law 
for  about  four  years,  and  was  in  Noveinber, 
1892,  elected  as  a  Democrat  to  the  national 
house  of  representatives  from  the  Fourth  con- 
gressional district.  He  was  re-elected  in  1894, 
and  again  in  1896,  his  period  of  service  com- 
mencing March  4,  1893,  and  ending  March  3, 
1899. 

The  Congressman  turned  from  this  high 
field  of  activity — just  as  the  Judge  had  stepped 
down  from  the  bench — of  his  own  free  will. 
He  was  representing  a  Democratic  district, 
and  possessed  great  strength  outside  of  his 
party,  and  there  was  no  question  as  to  his 
renomination  and  re-election  to  congress. 
However,  his  part}-  believed  him  to  be  their 
strongest  man  to  place  before  the  people  for 
Governor  in  the  fall  of  1898,  and  he  accepted 
the  nomination  for  that  office  instead  of  that 
for  congress.  He  made  a  notable  and  untir- 
ing canvass  of  the  State,  but  the  Republicans 
elected  their  State  ticket.  It  was  their  "turn." 
There  had  been  since  the  Civil  War  opened 
five  Republican  and  five  Democratic  Govern- 
ors, and  the  Governor  then  going  out  of 
office  was  a  Democrat  (Hon.  James  H.  Budd). 

Judge  Maguire.  since  he  left  congress,  has 
been  in  active  law  practice  at  San  Francisco 
in  partnership  with  Mr.  James  L.  Gallagher 
(Maguire   &   Gallagher). 

He  was  tmited  in  marriage  at  Monterey 
on  the  6th  day  of  March.  1881,  to  Miss 
Lonisa  J.  Joyce,  daughter  of  Willis  W. 
Joyce,  and  has  two  sons  living. 

In  the  domain  of  political  economy.  Judge 
Maguire  has  been  very  assiduous.  He  is 
distinguished  for  his  untiring  advocacy  of  the 
proposed  reform  known  as  the  "Single  Tax" 
— perhaps  standing  above  all  other  men  in  the 


f 


James  G.  Maguire 


History  of  the  Bench  and  Bar  of  California. 


725 


discussion  of  this  question,  now  that  Henry 
George  is  no  more.  It  is  now  twenty  years 
since  he  wrote  a  long  series  of  articles  for  tJic 
press,  under  the  name  "Francis  Volney,"  on 
the  land  question.  As  President  of  the  "Tax 
Reform  League"  he  sent  a  memorial  to  the  leg- 
islature on  February  i6,  1885.  praying  that 
only  land  values  be  taxed.  In  a  lecture  on 
November  3.  1885.  he  traced  the  main  cause 
of  want  in  the  United  States  to  land  monop- 
oly. The  evil  of  Chinese  immigration,  then 
popularly  regarded  as  the  efficient  cause  of 
hard  times  in  California,  he  said  was  not 
to  be  compared  with  this.  He  wrote  a  press 
article  of  December  12,  1885,  in  which  he  de- 
clared that  "Agrarian  laws  were  founded  on 
natural  justice,  and  their  spirit  must  be  re- 
vived." In  the  fall  of  1887,  while  holding  the 
office  of  Superior  Judge,  he  went  to  the  east- 
ern states  and  spent  two  months  in  the  in- 
terest of  Henry  George's  party. 

Judge  Maguire  is  a  free-thinker  on  religious 
subjects.  On  August  29,  1885,  in  deciding 
the  great  "Seal  Rock  Tobacco  case"  of  Jones 
vs.  Brandenstein,  in  favor  of  the  plaintiff,  he 
took  occasion  to  rebuke  the  plaintiff's  coun- 
sel for  their  abuse  of  the  Jews.  His  remarks 
on  this  subject  are  to  be  found  in  the 
Francisco  Call  of  August  30,  1885.  He  took  an 
active  and  prominent  part  in  the  great  con- 
troversy between  Dr.  Edward  McGlynn  and 
the  Catholic  hierarchy,  on  the  side  of  Mc- 
Glynn, in  the  course  of  which  he  wrote  and 
published  a  powerful  arraignment  of  ecclesias- 
tical politics,  entitled  "  Ireland  and  the  Pope," 
and  numerous  letters  and  addresses,  which 
had  wide  circulation.  He  is  also  quite  inde- 
pendent politically.  In  President  Cleveland's 
first  administration,  believing  that  the  Demo- 
cratic party  leaders  were  inspired  by  aristo- 
cratic sentiments,  instead  of  being  imbued 
with  popular  feeling,  he  denounced  the  admin- 
istration and  formally  withdrew  from  the 
party;  returning,  however,  when  Cleveland 
declared  in  favor  of  practical  free  trade,  in 
which  he  is  a  firm  believer.  His  letter  of 
withdrawal  from  the  party,  giving  his  reasons 
therefor,  addressed  to  the  Democratic  State 
Club,  may  be  found  in  the  Rvciiiiig  Bulletin 
of  January  28,  1887,  and  in  tlic  great  metro- 
politan dailies  of  the  2gth. 

A  vigorous  letter  of  his  on  the  "Water 
Question" — a  question  which  nearly  every  year 
excites  the  freeholders  of  San  Francisco,  is  in 
the  IVeekly  Star  of  July  24.  1886. 

While  on  the  bench,  Judge   Maguire   heard 


and  decided  many  notable  cases,  among  which 
was  the  famous  land  case  of  Joseph  Emeric 
against  Juan  B.  Alvarado  (the  last  Governor 
of  Alta  California  under  Mexican  rule),  and 
some  two  hundred  other  defendants.  This  is 
said  to  have  been  the  most  complicated  and 
difficult  of  all  the  Spanish  grant  cases  of  which 
the  treaty  of  Guadalupe  Hidalgo  was  so  pro- 
lific, and  the  Supreme  Court  of  California 
(90  Cal.  451).  in  affirming  his  decision,  ex- 
pressly complimented  Judge  Maguire  upon  his 
masterly  and  systematic  method  of  conduct- 
ing and  determining  the  case. 

In  congress  he  was  the  acknowledged  leader 
of  the  opposition  to  refunding  the  Pacific  Rail- 
road debts  to  the  United  States  government, 
and.  as  the  direct  result  of  that  successful 
opposition,  the  government  collected  the  debts 
in  full,  amounting  to  about  $200,000,000.  which 
would  otherwise  have  been  frittered  away  and 
lost.  He  also  led  and  won  the  fight  for  sailors' 
rights,  which  were  greatly  promoted  by  the 
passage  of  the  so-called  "Maguire  bills." 

Since  leaving  the  bench  he  has  conducted, 
and  is  now  conducting,  some  of  the  most  im- 
portant cases  that  have  arisen  in  California 
during  that  period— notably  the  Santa  Cruz 
bond  case,  now  pending  in  the  United  States 
Supreme  Court,  and  the  recent  cases  of  Von 
Schroeder  vs.  Spreckels,  and  Wallace  vs.  Me- 
lone,  which,  on  account  of  the  large  interests 
uivolved.  the  prominence  of  the  parties  litigant. 
and  the  interesting  character  of  the  issues, 
have  aroused  widespread  public  interest. 

The  Judge,  now  nearly  forty-eight  years  of 
age.  enjoying  a  good  and  lucrative  law  prac- 
tice, does  not  permit  mere  money-making  con- 
siderations to  absorb  his  whole  time  and  en- 
ergy, but  still  manifests  the  public  spirit  which 
made  him  both  prominent  and  popular  in 
earlier  years,  and  gives  promise  of  long  con- 
tinued service  in  the  investigation  and  discus- 
sion of  (|ucstions  of  material  interest  to  the 
people. 


STEPHEN   G.   NYE. 


Stephen  G.  Nye,  of  Oakland,  was  born  in 
Westfield,  Chautauqua  county,  N.  Y.,  Janu- 
ary 30th,  1834.  a  son  of  John  and  Harriet 
(Smith)  Nye.  The  mother  was  a  native  of 
Dutchess  county.  New  York;  the  father  of 
Worcester  county.  Mass.  In  their  youth 
they  removed  to  the  Holland  Land  Company's 
rtuclia>e  ill  Chautauqua  coimty.  New  York, 
when    that   countrv   was   an   unbroken    wilder- 


726 


History  of  the  Bench  and  Bar  of  California. 


ness ;  it  was  there  they  tir>t  met  and  were 
married. 

They  lived  tliere  for  tliirty-eight  years  to- 
gether and  had  the  usual  privations  and  suc- 
cesses of  pioneer  life.  The  mother  died  at 
Westfield.  N.  Y.,  in  i8;o.  The  father  removed 
to  San  Leandro.  Cal..  where  he  died  in  18?=;. 
The  children  of  John  and  Harriet  Nye  were 
two  sons,  Stephen  G.,  and  George.  The  lat- 
ter enlisted  in  the  Union  army  in  October, 
1861,  in  the  9th  New  York  Cavalry,  and  died 
of  pneumonia  at  Alexandria,  Va..  in  June. 
1862. 

(5n  both  the  father's  and  mother's  side  Judge 
Ny^  is  descended  from  Revolutionary  stock. 
The  earliest  ancestor  of  the  Nye  family  was 
Benjamin  Nye,  who  was  at  Sandwich,  Mass., 
as  early  as  1637.  and  all  the  American  Nve^ 
are  supposed  to  lie  his  descendants. 


Tlie  Judge's  great  grandfather.  Major  Ben- 
jamin Nye,  with  six  brothers,  took  part  in 
the  battle  of  Bunker  Hill.  The  solid  part  of 
his  education  Stephen  (i.  Xye  obtained  at 
what  he  is  pleased  tu  call  the  .\merican  Uni- 
versity— the  little  brown  -.clinol  bouse  of  pio- 
neer times. 

Later  on  he  prepared  for  college  principally 
at  Alfred  Seminary,  Allegheny  County,  N.  Y., 
and  afterwards  entered  Allegheny  College  at 
Meadville,  Pa.,  at  which  he  was  graduated  in 
1858.  For  eighte«*n  months  after,  be  was  prin- 
cipal of  the  Westfield  Academy,  and  then 
entered  as  a  student  in  the  law  office  of  Hon. 
T.  P.  Grosvenor,  at  Dunkirk,  N.  Y.  In  No- 
vember, 1861,  he  came  to  California,  and  earned 
his  first  money  as  a  teacher  in  the  nublic 
school  at  Centerville.  Alameda  coimty..  In 
the  spring  of  1862  he  became  law  clerk  in  the 


office  of  Janes  &  Lake,  of  San  Francisco, 
and  was  admitted  to  practice  by  the  Supreme 
C<un-t  in  .\pril  of  that  year,  and  in  1863  settled 
in  Alameda  county,  where  he  has  ever  since 
resided,  save  that  from  October,  1888,  to 
February,  T8yo.  be  lived  on  a  ranch  in  Tulare 
county. 

In  1863  he  was  elected  district  attorney  of 
Alameda  county,  and  served  two  3-ears. 

In  August,  1867,  be  was  appointed  County 
Judge  by  Gt)vernor  Low,  to  fill  the  vacancy 
caused  by  the  resignation  of  Hon.  Noble 
Hamilton.  By  successive  elections  he  held 
the  office  until  September,  1878.  when  be 
resigned  to  resume  law  practice.  On  the 
adoption  of  the  new  constitution  in  1879  he 
was  elected  State  Senator,  and  served  as 
chairman  of  the  judiciary  committee.  For 
eleven  years  be  bad  for  bis  law  partner.  J. 
B.  Richardson.  He  is  still  in  the  practice  of 
bis  iirofession,  being  the  senior  member  of 
the  law  firm  of  Nye  &  Kinsell. 

In  length  of  service  in  the  practice  of  his 
profession  in  the  courts  of  Alameda  county, 
be  now  outranks  all  the  other  resident  mem- 
bers of  the  bar. 

Stephen  G.  Nye  was  married  in  San  Fran- 
cisco January  26,  1863,  to  Emma  M.  Hall,  of 
Westfield,  N.  Y.,  a  daughter  of  Deacon  Asa 
and  Pauline  (Mack)  Hall,  who  were  pioneers 
of  Chautauqua  County.  She,  too,  comes  of 
Revolutionary  sires  on  both  the  father's  and 
mother's  side — one  ancestor,  Samuel  Foster, 
with  twelve  sons,  having  served  as  soldiers  in 
the  patriot  army.  Judge  and  Mrs.  Nye  have 
two  children,  Mrs.  Myrtle,  wife  of  Thomas 
H.  Davis  of  Tulare  County,  Cal.,  and  Harriet 
L.   Nve  of  Oakland. 


MILTON  H.  MYRICK. 

Milton  H.  Myrick,  a  Justice  of  the  State 
Supreme  Court  for  the  term  of  seven  j'cars, 
ending  in  January,  1887,  was  born  May  28, 
i.Sjf),  on  a  farm  near  Paris  Hill,  in  Oneida 
ciinnly,  Xew  ^'ork.  His  father  was  Rev. 
Luther  Myrick,  who  was  of  New  England 
extraction,  his  ancestor.  Ensign  William  My- 
rick, having  settled  at  Eastham,  Massachusetts, 
on  C.'ipe  Cod,  in  1646,  and  served  six  years 
undiT  Miles  Standisb.  Rev.  Luther  Myrick, 
as  minister,  was  located  at  different  times  in 
])laces  in  Central  New  York:  Manlius,  Oswe- 
go, Cazennvia:  be  was  a  member  of  the  con- 
vention wbicb  met  at  Utica  in  1835  to  form 
tlu'  first  New  York  State  Anti-Slavery  So- 
ciety, lie  was  a  friend  and  associate  of  Rev. 
Charles  (',.   I'inne\-.  later  of  01)erlin.  ;ind   Ger- 


M,  H.  Myrick 


History  of  the  Bench  and  Bar  of  California. 


■29 


rit     Smith,    of     Peterboro.      He     edited     and 
published   a    weekly   paper   in    Oswego,    where 
the  boy  learned  to  set  type,  and  later  removed 
to  Cazenovia,  where  young  Myrick  continued 
to   work   in   the   printing   office,   and   attended 
school   at   the   Cazenovia    Seminary.      Hon.    S. 
H.   Dwindle,   afterwards   judge   in   San   Fran- 
cisco, was  a  boy  there,  as  were  W.   W.   Mon- 
tague, Esq..  now  postmaster  of  San  Francisco, 
the  late   Rev.  A.   W.   Loomis,  Charles   Dudley 
Warner,   and   Hon.   J.    R.    Hawley,   the   latter 
now    United    States    senator    from    Conecticut. 
In   May,   1843,   the   family   moved   and   located 
upon   a   new    farm   in   Jackson   county.   Michi- 
p'an,  where  tlie  father  died  in   September   fol- 
lowing.     The   boy   then    returned   to   printing, 
and    worked    at    different    offices,    during    the 
years   1845,   1846.  and   1847,   in  Jackson.   Syra- 
cuse. Albany,  New  York  City,  and  in  the  gov- 
ernment office  in  Washington.     In  Albany  he 
worked   on   the   Albany  Argus.   Edwin   Cross- 
well,   editor    and   proprietor;    Edward    Gilbert 
was  foreman  of  the  office ;   Mr.   Gilbert  after- 
wards came  to  California  with  the   Stevenson 
Regiment,  and  became  noted  here,  not  onlj'  in 
his  life  l)ut   in   his   death   in   a   duel.     In   Feb- 
ruary,   1848,    being    in    W^ashington,    Mr.    My- 
rick saw  John  Quincy  Adams  as  he  lay  dying 
on  a  cot   in  the  speaker's  room.     He  then  re- 
turned to  Michigan,  and  read  law  in  the  office 
of    Frink    &    Blair — the    latter    afterwards    the 
"war  governor"  of  Michigan.     While  reading 
law,   Mr.   Myrick  was  deputy  county  clerk  of 
Jackson   county,  and   deputy   clerk  of  the   Su- 
preme Court  when  sitting  at  Jackson.   As  such 
deputy    he    knew    Hon.    Alpheus    Felch,    Hon. 
G.   V.   N.   Lothrop.   Hon.   George   Miles.   Hon. 
T.  M.  Cooley  and  Judge  Campbell. 

In  July.  1850,  he  was  admitted  to  practice 
by  the  Supreme  Court ;  Hon.  C.  W.  Whipple. 
Chief  Justice,  and  Justices  Warner  Wing.  Ed- 
ward Mundy  and  two  others.  In  the  summer 
of  i8;i  he  acted  as  amanuensis  for  Hon.  W^n. 
ty.  Seward  in  the  trial  of  a  case  in  Detroit, 
taking  testimony  in  court,  and  in  the  evening 
writing   for   Governor   Seward. 

In  1854  he  came  to  California  l)y  the  Nica- 
ragua r(y-[v.  the  good  sliij)  Sierra  Nevada, 
Captain  Blethen,  landing  at  the  foot  of  "long 
wharf."  San  Francisco,  in  October;  upon  land- 
ing he  had  five  dollars,  and  as  that  was  a 
.small  capital  upon  which  to  commence  practic- 
ing law.  and  as  the  State  was  pretty  full  of 
lawyers,  he  fell  ])ack  upon  his  trade,  and  fol- 
lowed printing  for  a  year,  being  at  work  on 
the  San  Francisco  .S'«»,  G.  K.  Fitch  editor 
and  part  proprietor;  in  October,  1855.  he  went 


to  Shasta  and  assisted  in  establishing  the 
Shasta  Republican.  Hon.  J.  C.  Hinckley  editor. 
In  May.  1857.  he  removed  to  Red  Bluff  and 
resumed  practice  of  law  in  partnership  with 
Warner  Earl,  who  was  later  County  Judge 
there,  and  afterwards  Justice  of  the  Supreme 
Court  of  Nevada.  In  May,  1866,  he  removed 
to  San  Francisco  and  practiced  law.  He  was 
appointed  by  Judge  O.  C.  Pratt,  then  Judge 
of  the  Twelth  Judicial  District  Court,  referee 
in  the  Buri-Buri  partition  case,  and  as  such 
took  proofs  and  examined  the  muniments  of 
title — several  hundred — and  reported  upon  the 
titles,  which  report  was  adopted  and  became 
declaration  of  the  titles  of  that  great  tract 
of  land,  extending  from  San  Francisco  to  San 
Mateo.  In  this  case  he  was  brought  in  con- 
tact with  many  of  the  then  leaders  of  the  bar 
of  San  Francisco,  and  perhaps  owed  to  the 
conduct  of  that  case  the  good  will  of  the  law- 
yers and  his  subsequent  judicial  career.  He 
used  to  say  that  '"he  needed  San  Francisco 
more  than  San  Francisco  needed  him."  For 
about  a  year  and  a  half,  in  1869.  1870.  and 
1871.  he  was  a  member  of  the  firm  of  Sawyer 
and  Myrick  (Hon.  E.  D.  Sawyer,  e.x -Judge 
of  the  Fourth  Judicial   District). 

In  1871  he  was  nominated  by  the  "Tax 
Payers'  Convention"  for  the  office  of  Probate 
Judge  of  the  City  and  County  of  San  Fran- 
cisco, and  was  elected  to  succeed  Tudge  Sel- 
den  S.  Wright.  He  served  the  four  years' 
term.  January  i.  1872,  to  December  31,  1875. 
In  1875  lie  was  nominated  tor  the  same  office 
in  the  Republican  party,  and  re-elected,  and 
served  the  four  years  from  January  i.  1876.  to 
December  31.  1879;  at  which  time,  under  the 
new  constitution,  the  Proliate  Court  as  a  dis- 
tinctive tril)tmal  was  superseded  liy  tlie  Su- 
perior   Court. 

In  1879  he  was  nominated  by  the  Reinililican 
State  Convention  and  was  elected  Associate- 
Justice  of  the  Supreme  Court,  and  drew  the 
term  of  seven  years,  from  January  i.  1880,  to 
January  i,  1887.  wliich  term  he  served,  his 
associates  being  Ciiief  Justice  Morrison  and 
Justices  McKinstry,  Tliornton.  McKee.  Ross 
and  Sharjjstein  :  ni.iking  fifteen  years  of  con- 
tinuous judicial  service — eight  years  as  Pro- 
l)atc  Judge  and  seven  years  as  Justice  of  the 
Supreme  Court.  He  then  resumed  the  prac- 
tice of  l,(\v.  In  Februarv.  i8'*7.  he  became  a 
inrnibcr  of  tlu'  firm  of  Myrick  &  Deering 
(Mr.  I'.  P.  Deering).  whicli  relationship  still 
exi'its. 

Jndo-e  Myrick  beciine  ,1  member  of  the  Ma- 
sonic  Order   in    Michigan,   in    1849.   and   since 


730 


History  of '  the  Bench  and  Bar  of  California. 


then  has  been  an  ardent  member  of  it.  He  was 
High  Priest  of  Shasta  Chapter,  No.  9;  four 
years  W.  M.  of  Vesper,  No.  84,  Red  Bluff; 
one  year  W.  M.  of  Oriental,  No.  144,  and  one 
year  H.  P.  of  San  Francisco  Chapter,  No.  I, 
San  Francisco ;  and  later,  one  year  G.  H.  P. 
of  the  Grand  Chapter  of  California.  He  thinks 
that  no  one  in  this  State  has  greater  cause 
than  he  for  gratitude  for  the  friendships  of 
the  order. 

1  he  Judge  is  also  an  orchardist.  In  1881  he 
bought  eighty  acres  of  land  in  the  Santa  Clara 
Valley,  which  he  has  planted  to  fruit  trees ; 
he  has  now  nearly  six  thousand  fruit  trees, 
most  of  them  in  bearing.  For  eighteen  years 
the  place  has  been  his  vacation  resort. 

Looking  back  over  the  long  period  of  fifty 
years  and  more,  from  now  to  the  time  of  the 
admission  of  the  State  in  1850,  and  at  the 
character  of  the  men  he  has  met  in  the  pro- 
fession on  the  bench  and  at  the  bar,  in  Michi- 
gan and  in  California,  he  is  impressed  with  the 
suggestion  that,  of  all  men  in  the  world,  the 
Judge  on  the  bench  can  best  afford  to  try  to 
be  a  gentleman.  The  exercise  of  power,  for 
the  public  good,  in  a  courteous,  dignified  man- 
ner, is  the  act  of  a  gentlemaji ;  the  exercise  of 
power  arbitrarily  is  not. 

For  thirty-five  years  we  have  known  lliis 
exemplary  character.  It  is  a  pleasure  to  write 
of  a  man  of  so  industrious,  useful  and  blame- 
less a  life,  and  to  record  that  he  is  yet  in 
the  fullness  of  an  honorable  activity  at  the 
bar.  "Act  well  your  part — there  all  tlie  lionor 
lies." 


FRANK  B.  OGDEN. 


Frank  Burroughs  Ogden  was  born  in  New- 
ark. N.  J.,  April  26,  1858.  His  father.  Jona- 
than Townley  Ogden,  was  himself  a  lineal 
descendant  of  John  Ogden.  the  original  settler 
of  New  Jersey,  and  whose  descendants  figured 
in  the  War  of  the  Revolution,  the  War  of  1812. 
and  that  of  the  Rebellion.  His  mother  was 
Rosalie  Burroughs  Ogden.  whose  father.  Col- 
onel Joseph  Burroughs,  was  one  of  the  best- 
known  men  of  Newark,  and  at  the  time  of  his 
death  in  1884  was  the  oldest  Mason  in  New 
Jersey.  Her  maternal  grandfather,  Searles. 
was  the  inventor  of  the  fur-blowing  machine, 
the  mother  of  all  our  rotary  knife  machines. 

Judge  Ogden  came  to  California  when 
scarcely  twelve  years  of  age,  and  has  since 
resided  in  Oakland.  He  was  admitted  to  the 
local  bar  in  1881,  and  to  the  Supreme  Court 
bar  in  August,   1886.     In   1882  he  was  elected 


City  Justice  of  Oakland.  He  was  thrice  re- 
elected to  the  same  position,  frequently  en- 
dorsed by  other  parties  who  refused  to  nomi- 
nate against  him.  In  February,  1893,  while 
serving  his  fourth  term  as  City  Justice  and  ex- 
officio  Police  Judge,  he  was  appointed  by  Gov- 
ernor Markham  Judge  of  the  Superior  Court, 
and  was  elected  to  that  position  for  a  full  term 
two  years  later.  In  September,  1900,  the  Re- 
publicans of  Alameda  county  again  nominated 
him  for  the  same  position,  and  he  was  voted 
for  and  chosen  for  another  full  term  at  the  elec- 
tion of  November  6,  1900. 

Every  convention  since  the  first  term  of  of- 
fice has  conferred  the  nomination  upon  him  by 
acclamation.  This  is  high  praise  for  any  man. 
He  has  served  continuously  on  the  bench  for 
nearly  fourteen  years. 


FRANK  F.  OSTER. 

Frank  F.  Oster  was  born  at  Sparta.  Wis- 
consin. June  3,  i860.  He  was  graduated  from 
Sparta    High    School    in    1878,    and    from    the 


University  of  Wisconsin  in  1882.  He  read 
law  in  the  ofiice  of  Morrow  &  Masters,  at 
Sparta,  and  was  admitted  to  tlie  bar  of  the 
Supreme  Court  of  Wisconsin  in  1885.  He 
was  elected  municipal  Judge  of  his  native 
city,  while  he  was  pursuing  his  law  studies 
in  the  spring  of  1885.  In  November  of  that 
year,  after  his  admission  to  the  bar,  he  re- 
signed the  municipal  judgeship  and  came  to 
California. 

Judge  Oster  spent  the  wiiUcr  of  1885-86  in 
traveling  in  California.  In  tlie  spring  of  i88b 
he  went  to  Colton,  tiien  a  booming  young 
town,  to  visit  friends,  and  was  persuaded  to 
remain   there.      In   that   fall   he   helped   to   or- 


Oval  "Pirkey 


History  of  the  Bench  and  Bar  of  California. 


733 


ganize  and  establish  the  First  National  Bank 
of  Colton,  but  soon  found  the  demands  of  his 
growing  law  i)ractice  so  great  that  he  was 
compelled,  in  May.  1887.  to  sever  his  connec- 
tion with  the  bank.  Upon  the  organization  of 
Colton  as  a  municipal  corporation,  in  July. 
1887,  Judge  Oster  became  its  first  city  attor- 
ney, and  held  the  position  for  four  years, 
declining  to   serve   longer. 

On  January  i,  1891.  he  moved  his  law  office 
from  Colton  to  San  Bernardino,  the  county 
seat  of  San  Bernardino  county,  and  formed 
a  partnership  with  Hon.  W.  J.  Curtis,  one 
of  the  oldest  and  best-known  lawyers  of  that 
county.  He  continued,  however,  to  reside  at 
Colton  until  January  i,  1893,  when,  having 
been  elected  district  attorney  of  San  Ber- 
nardino county,  he  removed  his  residence  also 
to  the  county  seat,  where  he  still  resides.  He 
served  as  district  attorney  for  one  term  of  two 
years  and  declined  re-election. 

Judge  Oster,  in  November,  1896,  was  elected 
Superior  Judge  of  San  Bernardino  county, 
and  went  into  office  the  following  January. 

In  politics  he  is  a  Republican.  He  was 
married  on  October  15,  1891,  to  Miss  Elsie 
M.  Donald,  daughter  of  Rev.  William  Don- 
ald, then  pastor  of  the  Presbyterian  Church 
at  Colton.  He  has  one  child,  a  boy,  Donald 
T.  Oster,  born  September  30,  1894. 

The  Judge  is  a  charter  member  of  Colton 
Lodge  No.  137,  Knights  of  Pythias,  and  a 
member  of  St.  Bernard  Commandery  No.  23, 
Knight  Templars,  of  San  Bernardino,  and 
Al  Malaikah  Temple.  Nobles  of  the  Mystic 
Shrine. 


GEORGE  E.  OTIS. 


George  Edmund  Otis,  who  was  Superior 
Judge  of  San  Bernardino  county  for  tlir  full 
term  ending  in  January,  1897.  was  born  in 
Boston,  Mass.,  November  5th.  1846.  He  was 
educated  at  the  Boston  Latin  School,  and  Nor- 
wich University,  Vermont.  At  the  age  of 
seventeen  he  lett  the  university  to  go  into  the 
Civil  War,  enlisting  in  the  Sixth  Massachu- 
setts Volunteers,  Company  H.  At  thr  riid  of 
his  term  of  enlistment,  he  was  honorably  dis- 
charged. Returning  to  his  native  city,  he  pur- 
sued the  study  of  law  in  tlir  office  of  Ricliard 
H.  Dana.  Jr.,  autiior  of  ilu'  cclrbrati'd  l>ook. 
"Two  Years  Before  the  Mast."  Two  years 
was  also  the  period  of  our  su1)ji'crs  study  in 
Mr.  Dana's  office.  He  continued  his  i)rei)ara- 
tion  for  the  bar  in  Harvard  Law  School,  from 
whicli  institution  he  was  graduated  in  i8rK). 
with  the  degree  of  LL.  B. 


Judge  Otis  began  the  practice  of  law  in  Bos- 
ton. After  a  few  years  at  that  bar,  he  removed 
to  California,  arriving  here  in  1875,  and  locat- 
ing at  San  Bernardino.  He  followed  the  pro- 
fession at  that  place  for  two  years,  in  partner- 
ship with  Hon.  W.  J.  Curtis,  who  was  district 
attorney  at  tliat  time,  the  firm  name  being 
Curtis  &  Otis.  Then  changing  his  residence 
to  San  Francisco,  he  practiced  there  in  partner- 
ship with  Charles  E.  Wilson,  under  the  style 
of  Wilson  &  Otis.  This  was  in  1880,  and  after 
four  years,  John  J.  Roche  entered  the  firm, 
which  continued  some  three  years  longer  as 
Wilson,  Otis  &  Roche.  It  was  then  dissolved. 
Judge  Otis  having  returned  to  San  Bernardino. 

At  San  Bernardino.  Judge  Otis  again  joined 
his  old  associate.  Mr.  Curtis,  and  this  partner- 
shin  lasted  until  the  Judge's  entry  upon  the 
office  of  Superior  Judge  in  January.  1891.  At 
the  end  of  his  six  years'  service  on  the  bench. 
Judge  Otis  resumed  law  practice  in  partner- 
ship with  Hon.  F.  W.  Gregg.  This  association 
still  exists,  under  the  firm  name  of  Otis  & 
Gregg.  Judge  Otis  resides  in  Redlands.  a 
short  distance  from  San  Bernardino,  having 
his  office  in  the  latter  place. 


OVAL    PIRKEV. 


Oval  Pirkey  was  born  in  Alexandria.  Ten- 
nessee. February  22,  1861.  His  maternal  great 
grandfather  was  Chancellor  Williams  of  that 
state,  who  is  mentioned  as  a  respectable  legal 
authority  in  Kent's  Commentaries,  while  his 
grandfather  on  the  same  side  was  a  Circuit 
Judge  and  congressman  in  ante-bellum  days, 
when  learning,  integrity  and  honor  were  pre- 
requisites to  those  positions  in  Tennessee.  The 
greater  part  of  Judge  Pirkey's  boyhood  was 
passed  at  Canton,  Missouri,  where  he  attended 
Christian  University,  in  which  institution  his 
father  was  a  professor  for  twenty  years,  and 
then  president. 

In  1885  he  was  admitted  to  the  bar  and  be- 
g.m  the  practice  of  law  in  Washington  Ter- 
ritory. In  i8()8  he  was  elected  Judge  of  the 
Superior  Court  on  the  Re])ublican  ticket  in 
(ilenn  county,  California,  a  comity  witli  a 
1  )eniocratic  majority  of  over  three  lumdred. 
\\v  pri'sicled  during  tlie  famous  Murdock  note 
case,  at  Willows,  in  .Vjuil  and  May,  1899, 
which  was  considered  one  of  the  most  import- 
ant jury  cases  ever  tried  in  the  West.  He 
was  an  able  man  at  the  bar.  and  on  the  bench 
he  shows  a  deep  knowledge  of  the  law.  and  is 
prompt,  cautious  and  firm. 


'34 


History  of  the  Bench  and  Bar  of  California. 


JOHN   REYNOLDS. 

Juhn  Rcyniilds.  fx-Su])crior  Judge  of  Santa 
Clara  county,  was  horn  in  Bedford,  West- 
chester county.  -Ww  ^'ork.  on  February  20. 
1825.  and  received  his  education  at  the  Union 
Academy  of  that  town,  conducted  by  his 
brother,  Alexander  G.  Reynolds.  Hon.  W. 
H.  Rob'inson,  afterwards  county  judge  of  that 
county,  and  later  a  member  of  congress  and 
collector  of  the  port  of  New  York,  received 
his  education  with  him  at  the  same  school, 
each  going  from  it  at  about  the  same  time  to 
study  his  chosen  profession.  He  studied  law 
at  Sing  Sing.  New  York,  in  the  office  of  his 
brother!  S.  F.  Reynolds,  afterwards  judge  of 
the  Fourth  District  Comt  of  San  Francisco. 
He  was  admitted  to  the  bar  by  the  Supreme 
Court  of  the  state  of  New  Wnk,  and  com- 
menced" to  ijractice  law   in   liis  brother's  otfice. 


f       --am  ^ 


and  there  continued  for  one  year.  Coming  to 
California  in  tiie  fall  of  1853,  he  was  admitted 
to  practice  by  the  Supreme  Court  of  Cali- 
fornia in  that  year,  opening  an  office  in  San 
Francisco,  where  he  continued  until  the  fall  of 
1871.  He  then  located  permanently  at  San 
Jose,  and  has  ever  since  engaged  in  the  prac- 
tice there,  except  when  on  the  bench.  He 
was  a  member  of  the  first  Republican  State 
convention  in  1856,  chairman  of  the  Repub- 
lican county  committee  in  San  Francisco  dur- 
ing the  presidential  election  of  1864,  in  which 
campaign  he  devoted  his  time  exclusively,  for 
seven  weeks  preceding  the  second  election  of 
Lincoln,  to  his  duties  as  chairman  of  that  com- 
mittee ;  and  has  always  been  interested  in  po- 
litical tnatters,  although  never  an  active  poli- 
tician. 


He  was  married  in  1855  to  Miss  Emily  Mar- 
shall of  Sing  Sing,  New  York.  After  forty- 
four  years  of  happiness  and  devotion  this  com- 
panionship was  terminated  l)y  the  death  of  his 
wife  in  1899. 

He  was  elected  a  member  of  the  assembly 
in  1880,  and  was  a  member  of  tiiat  body  dur- 
ing the  memorable  session  of  the  legislature 
in  1881.  On  account  of  certain  combinations 
with  which  lie  did  not  sympathize  and  which 
resulted  in  the  defeat  of  the  apportionment 
bill,  he  was  not  placed  at  the  head  of  the 
judiciary  cnnnniltee :  l)ut  it  is  well  known 
tiiat  no  constitutional  question  arose  in  the 
committee,  or  the  house,  in  which  he  was  not 
consulted,  and  in  but  one  instance  was  his 
opinion  disregarded,  and  in  that  case  his  vote 
is  found  recorded  in  accordance  with  a  subse- 
quent decision  of  the  United  States  Circuit 
Court. 

Judge  Reynolds"  practice  as  an  attorney 
has  been  in  some  of  the  most  important 
suits  instituted  in  this  State.  Actions  in- 
volving titles  to  lands  have  been  his  spe- 
cialty, and  in  these  his  careful  method  and 
thorough  research  have  been  often  commented 
upon.  The  most  complicated  suit,  as  some 
claim,  ever  had  on  the  coast,  was  begun  and 
managed  ])y  Jiim  to  the  end.  with  no  error  in 
the  slightest  detail.  This  was  the  partition 
of  Las  Animas  Rancho,  covering  the  city  of 
Gilroy.  and  many  thousand  acres  of  outside 
lands,  and  in  which  there  were  several  hotly 
contested  controversies,  involving  about  one- 
eighth  of  the  whole  rancho,  and  which  occu- 
pied the  court  weeks  in  trying.  There  were, 
about  two  thousand  parties  to  the  record  in 
this  action,  which  was  pending  several  years. 
The  careful,  methodical,  painstaking  charac- 
ter of  Judge  Reynolds,  together  with  his 
knowledge  of  the  law,  acquired  by  nearly 
forty  years  of  study  and  practice,  eminently 
fitted  him  to  receive  the  appointment  to  the 
bench,  at  the  death  of  Hon.  David  Belden,  in 
1878,  at  which  time  Governor  Irwin  appointed 
him  to  the  Superior  Judgeship  of  Santa  Clara 
county.  At  the  expiration  of  the  term  for 
which  he  was  appointed  the  people  of  the 
county  manifested  their  appreciation  of  the 
Governor's  choice  by  electing  Judge  Reynolds 
to  succeed  himself,  and  he  continued  to  oc- 
cupy the  position   niuil   i8ijO. 

It  would  be  unjust  to  Judge  Reynolds  to 
close  this  article  without  saying  that  he  is 
a  man  of  unspotted  character,  a  gentleman  hon- 
ored and  esteemed  by  all,  and  a  sturdy  speci- 
men  of  the   ideal   lawver  and  citizen. 


History  of  the  Bench  and  Bar  of  California. 


735 


A.  L.  RHODES. 

Augusius  Loring  Rhodes,  the  venerable 
Judge  of  [he  Superior  Court  of  Santa  Clara 
countN.  once  Chief  Justice  of  the  Supreme 
Court,  was  born  in  Oneida  county,  New  York, 
in  1821.  He  was  admitted  to  the  bar  in  In- 
diana in  1846,  married  in  tlie  same  year,  and 
came  to  California  in  1854.  After  a  few  years 
devoted  to  farming,  he  began  law  practice  at 
San  Jose,  in  1856.  in  partnership  with  P.  O. 
Minor.  In  1857  he  ran  for  county  judge,  but 
was  defeated  by  the  Democratic  candidate. 
In  1859  he  was  elected  district  attorney,  as  a 
Republican,  his  opponent  being  Charles  R. 
Younger.  In  i860  he  jvas  elected  State  sen- 
ator for  Santa  Clara  and  Alameda  counties. 
At  the  thirteenth  session,  1862,  he  was  chair- 
man of  the  senate  judiciary  committee.  He 
was  elected  a  justice  of  the  Supreme  Court 
in  October,  1863,  the  first  election  after  the 
number  of  justices  had  been  increased  from 
three  to  five.  He  drew  a  term  of  eight  years, 
which  he  served.  In  October,  1871,  he  was 
elected  for  a  full  term  of  ten  years,  and  served 
until  the  first  week  in  1880,  when  the  new  con- 
stitution took  effect.  On  September  3.  1879, 
he  was  defeated  by  a  small  majority  for  Chief 
Justice  by  Robert  F.  Morrison.  Democrat. 
He  was  Chief  Justice  of  the  court  from  Jan- 
uary, 1870,  till  January  i,  1872.  On  the  bench, 
as  in  the  senate,  he  evinced  extraordinary 
industry  and  devotion  to  his  trusts.  He  wrote 
the  opinion  in  Lick  vs.  Austin,  43  Cal.  590; 
dissented  in  the  Chinese  testimony  case  of  the 
People  vs.  Brady,  40  Cal.  207;  dissented  in 
the  local  option  case  of  ex-parte  Wall.  48 
Cal.  323,  and  in  People  vs.  Cage  (twice  in 
jeopardy),  48  Cal.  331.  He  wrote  the  opinion 
knocking  on  the  head  the  proposed  Mont 
Eagle  University.  (See  Hawes  vs.  Stebbins, 
49  Cal.  372.)  On  July  23,  1886.  he  joined 
with  the  San  Francisco  Bar  Association 
against  the  movement  to  reorganize  the  Su- 
preme Court. 

Judge  Rhodes,  on  leaving  the  Supreme 
bench,  formed  a  law  partnership  with  .Mfred 
Barstow  of  San  Francisco,  and  jiracticed  at 
that  bar  with  the  same  partner  for  the  long- 
period  of  twenty  years.  During  all  this  time 
he  kept  his  residence  at  San  Jose.  He  be- 
came Judge  of  the  Superior  Court  of  Santa 
Clara  county,  by  appointment  of  Governor 
Gage,  on  September  22,  1899,  in  the  place  of 
Hon  .A.  S.  Kittredge,  deceased.  In  Novem- 
ber, 1900,  he  was  elected  for  a  full  term,  with- 
out opposition  ;  indeed,  he  was  nominated  l)y 
the    Republican.    Democratic    and    Good    Gov- 


ernment parties.  Judge  Rhodes  is  a  man  of 
five  feet,  ten  and  one-half  inches  in  height, 
and  weighs  165  pounds.  His  complexion  is 
light ;  his  hair  was  dark  brown,  now  gray. 
He  is  active  and  alert  in  mind  and  body,  sys- 
tematic and  studious,  and  furnishes  a  splen- 
did illustration  of  a  green  old  age.  The  golden 
wedding  of  himself  and  wife  was  celebrated 
in  September.  1896.  He  has  occupied  his  pres- 
ent  residence   since    1858. 


H.  C.  ROLFE. 


H.  C.  Rolfe  was  born  in  Maine  in  1834,  but 
when  he  was  only  a  few  weeks  old  his  parents 
with  their  family  moved  into  the  then  far  West 
in  the  Mississippi  valley.  He  came  to  Califor- 
nia when  quite  young.  From  1850  to  1857  he 
spent  his  time  in  various  parts  of  the  State, 
took  part  in  several  campaigns  against  hostile 
Indians  in  Southern  California,  and  worked 
several  years  at  mining  in  Nevada  county, 
gaining  nothing  but  experience.  In  the  fall 
of  1857  he  commenced  the  study  of  law  with 
William  Pickett,  who  was  then  recently  estab- 
lished in  San  Bernardino  with  a  good  law 
library,  and  who  kindly  gave  young  Rolfe  the 
use  of  it  for  study,  in  return  for  what  little 
assistance  he  could   render. 

With  but  a  common  school  education,  he 
devoted  his  time  to  hard  study.  He  was  ad- 
mitted to  the  bar.  and  in  1861.  was  elected 
district  attorney  of  the  county  for  a  term  of 
two  years,  and  was  re-elected  in  1863  for  an- 
other term.  At  that  time  San  Bernardino  was 
on  the  remote  frontier  of  what  was  called  the 
"cow  counties,"  a  name  used  to  designate  the 
sparsely  populated  southern  part  of  the  State, 
of  which  the  greatest  part  of  the  wealth,  aside 
from  the  large  ranchos.  consisted  of  great 
herds  of  cattle  roaming  at  large  over  the 
plains.  There  had  at  that  time  drifted  into 
the  county  many  reckless  and  lawless  people 
with  little  regard  for  the  rights  of  property 
or  the  good  order  of  society.  That  was  during 
the  War  of  the  Rebellion,  and  many  of  them 
;it  least  pretended  to  be  in  open  sympathy  with 
tile  Confederacy;  and  whether  sincere  or 
not  in  such  pretense,  it  gave  them  an  excuse 
for  many  of  their  lawless  adventures  and 
depredations.  I'^rom  San  Bernardino  it  was 
too  handy  for  them  to  skip  off  to  Dixie,  or  go 
and  hide  in  the  wilds  of  Arizona  or  the  Col- 
orado desert.  Many  of  them  did  not  take  that 
much  pains  to  evade  the  law,  but  remained 
and  boldly  set  at  defiance  all  law  and  author- 
ity. I'nder  such  circumstances  it  is  evident 
that    the   office   of   public   prosecutor   required 


786  History  of  the  Bench  and  Bar  of  Califor 


some  nerve  and  good  judgment  for  a  proper 
discharge  of  its  duties.  The  many  criminal 
convictions  for  state  prison  offenses  in  the 
count}'  at  that  time  show  that  the  office  was 
administered  with  rare  courage  and  intelli- 
gence. 

On  retiring  from  this  arduous  position  Mr. 
Rolfe  continued  the  practice  of  law  until 
the  creation  of  the  eighteenth  judicial  dis- 
trict, composed  of  the  counties  of  San  Ber- 
nardino and  San  Diego,  in  February,  1872, 
when  he  was  appointed  judge  of  that  district, 
by  the  Governor,  to  hold  the  office  until  the 
next  ensuing  election.  Although  he  was  a 
candidate  to  succeed  himself  for  the  full  term, 
he  was  not  elected,  and  resumed  practice  at 
San  Bernardino.  In  1878,  at  the  special  elec- 
tion for  members  of  the  State  constitutional 
convention,  he  was  elected  joint  delegate 
from  the  same  two  counties,  and  took  an  active 
part  in  the  proceedings  of  that  body.  The  work 
of  the  convention  being  ratified  by  the  people, 
by  the  adoption  of  the  constitution  which 
it  had  prepared,  his  home  constituency  showed 
their  appreciation  of  his  services  at  the  general 
election  of  1879,  by  electing  him  judge  of  the 
Superior  Court,  which  court  had  been  created 
by  the  new  constitution  to  take  the  place  ot 
the  former  District  and  County  Courts.  At 
the  expiration  of  his  term  he  voluntarily  re- 
tired from  the  bench  to  again  resume  practice 
at  the  bar. 

Judge  Rolfe  is  married  and  has  two  mar- 
ried daughters  and  several  grandchildren,  and 
is  still  engaged  in  law  practice  at  San  Ber- 
nardino. 

RICHARD  C.  RUST. 

Richard  C.  Rust,  Superior  Judge  of  Ama- 
dor county,  was  born  in  Marysville,  Califor- 
nia, October  19,  1855.  He  was  married  No- 
vember 30,  1887,  to  Miss  L.  G.  Hosmer,  a 
daughter  of  H.  B.  and  M.  V.  (Taggart)  Hos- 
mer. There  are  two  children  of  the  union, 
Richard  Whiting,  who  was  born  December  3, 
1889,  and  Helen,  born  December  28.  1896.  In 
politics.  Judge  Rust  is  a  Democrat.  He  re- 
ceived his  early  education  in  the  public  schools 
of  Calaveras  county. 

In  March,  1876,  he  commenced  the  study 
of  the  law  with  O'Connor  &  Pardow,  in  San 
Francisco,  remaining  with  .'\lfred  A.  Pardow, 
a  member  of  that  firm,  until  admitted  to  the 
Supreme  Court.  He  also  studied  in  San  Fran- 
cisco under  the  late  Edmond  L.  Gould  and 
Hon.  A.  C.  Adams,  the  latter  once  District 
Judge  of  the  district  comprising  El  Dorado, 
Amador  and  Calaveras  counties. 


nia. 


Judge  Rust  was  admitted  to  the  Supreme 
Court  bar  on  November  10,  1879;  to  the  United 
States  District  Court,  March  19,  1885,  and  to 
the  United  States  Circuit  Court,  November 
II,  1887.  He  then  practiced  law  in  San  Fran- 
cisco from  1879  to  1883,  when  he  removed  to 
Jackson,  Amador  county.  There  he  formed 
a  law  partnership  with  Hon.  A.  Caminetti. 
This  partnership  continued  until  January  i, 
1887,  at  which  time  Mr.  Caminetti  went  into 
politics.  Judge  Rust  then  formed  a  partner- 
ship with  the  late  Hon.  John  A.  Eagan,  which 
continued  until  the  death  of  Mr.  Eagan. 

Before  going  on  the  bench,  our  subject 
served  two  terms  as  district  attorney  of  Ama- 
dor count}'. 

In  1894  he  was  elected  to  fill  the  unexpired 
term  of  the  Hon.  C.  B.  Armstrong  as  Judge 
of  the  Superior  Court  of  Amador  county, 
made  vacant  by  his  death,  and  in  1896  was  re- 
elected for  a  full  term  of  six  years,  which 
will  expire  in  January,  1903. 

Judge  Rust  is  Grand  President  of  the  Order 
of  Native  Sons  of  the  Golden  West,  having 
been  elected  at  the  session  held  at  Oroville, 
in  April,   1900. 

The  Judge's  father  was  Colonel  Richard 
Rust,  formerly  of  Marysville.  His  mother  was 
Evalina  P.  Church.  Thej'  were  natives  of 
\'ermont.  They  came  to  California  in  1849, 
Colonel  Rust  being  secretary  to  the  govern- 
ment commission  to  establish  the  boundary  line 
between  the  United  States  and  Mexico,  and 
who  resided  at  San  Diego  from  1849  to  1851. 
He  held  the  position  of  Alcalde  for  San 
Diego  county.  He  was  elected  county  clerk  of 
San  Diego  county  at  the  first  election  after  the 
admission  of  California  to  the  Union.  In  1851 
he  went  to  Marysville,  and  established  the 
Marysville  Express,  a  newspaper  which  he 
published  until  1857.  During  the  same  time 
he  published  the  Placer  Herald  at  Auburn, 
Placer  county.  The  Herald  is  still  published  at 
Auburn,  and  is  one  of  the  leading  papers  of 
Placer  county.  The  old  hand-power  press  is 
still  in  the  office.  It  was  while  he  was  editing 
the  Marysville  Express  that  he  fought  the  duel 
with  Stidger.  (See  "Field  of  Honor.")  In 
1857  he  sold  out  his  interests  in  Marysville 
and  moved  to  Sacramento,  where  he  was  em- 
ployed as  editor  of  the  State  Journal  until 
1858.  In  1859  he  moved  to  Mokelumne  Hill, 
becoming  connected  with  the  Calaveras  Chron- 
icle, which  he  conducted  until  1861.  He  then 
sold  his  interest  and  retired  from  active  news- 
paper business,  and  purchased  a  homestead 
about    ten    miles   above    Mokelumne   Hill,    and 


A.  A.   Sanderson 


History  of  the  Bench  and  Bar  of  California. 


789 


engaged  in  doincslic  pursuits  until  the  time  of 
his  deatli.  which  occurred  August  13,  1872. 
His  wife,  the  Judge's  motlier,  is  si  ill  Hving. 
and   is  eighty-four  years  of  age. 


A.   A.   SANDERSON. 


Austin  A.  Sanderson,  a  Judge  of  the  Supe- 
rior Court  of  San  Francisco  for  the  term  of  six 
years,  ending  with  the  year  1896.  was  horn  in 
New  York.  January  4th,  1848.  He  is  of  Puri- 
tan ancestry  and  Revolutionary  stock,  and  was 
educated  in  the  public  schools  of  his  native 
State.  He  was  admitted  to  the  bar  of  the  Su- 
])reme  Court  of  New  Jersey  in  the  year  1879 
He  came  to  California  the  following  year, 
located  at  San  Francisco,  and  practiced  there 
in  association  with  the  late  Colin  Campbell 
until  his  election  as  Superior  Judge  in  1890. 
When  he  was  elected  to  the  bench,  his  party 
ticket  was  defeated.  He,  and  one  other,  were 
the  only  Democrats  elected  at  that  time.  Dur- 
ing his  term  as  Judge,  many  large  and  import- 
ant cases  were  tried  before  him,  among  them 
notably  those  01  "Miller  vs.  Lu.x"  to  determine 
the  interests  in  that  vast  estate,  and  the  "Noe 
Suits."  affecting  the  title  to  a  large  portion 
of  the  Mission  district  in  San  Francisco.  Since 
he  left  the  bench.  Judge  Sanderson  has  fol- 
lowed his  profession. 

Judge  Sanderson  has  a  very  large  and  gen- 
eral law  practice,  and  is  in  receipt  of  a  hand- 
some income.  He  was  united  in  marriage  on 
the  27th  day  of  November,  1872,  to  Miss  Ella 
Reddington,  at  Jamestown,  New  York,  and  iias 
three  daughters. 

Judge  Sanderson  is  a  man  of  very  jileasant 
manners,  and  is  very  po])ular.  He  is  an  able 
lawyer  and  a  man  of  wide  general  information. 
He  is  now  in  the  prime  of  life,  and  in  llu-  full 
tide   of  prosperity   in   his   profession. 


JAMES  M.  SEAWEEL. 

Judge  Seawell  was  born  January  8.  18,^6.  in 
Indian  Territory,  at  Fort  Gibson,  where  his 
f.itber.  then  a  ca])tain  in  the  United  Stales 
army,  was  stationed.  The  captain.  Washing- 
ton .Seawell.  was  born  in  Virginia  in  iSo-'.  lie 
was  a  graduate  of  West  Point  Military  .Acad- 
rm\-.  and  ^er\•(_•(l  in  the  Indian  wars  in  I'lorid.i 
and  the  war  with  Mexico.  He  was  retired. 
February  20,  1862,  at  the  age  of  sixty,  for  dis 
ability  resulting  from  exposure  while  on  duly, 
lie  was  colonel  of  the  Sixth  Infanty,  and 
brevet  brigadier-general.  Coining  to  California 
in  March,  1869,  he  resided  on  his  ranch  in  So- 
noni.i  county  until   1873.     He  then  removed  to 


San  Francisco,  where  he  died  in  1888 — on  Jan- 
uary 8,  his  worthy  son's  birthday,  "Jack.son's 
Day,"  as  ibey  siill  observe  it  in  New  Orleans 
and  other  Soulhern  cities. 

Judge  Seawell  was  a  pupil  for  a  short  lime 
at  Georgetown  College,  D.  C.  He  entered  Har- 
vard University  in  1853  ^^  'i  junior,  and  was 
graduated  in  1855,  with  distinction.  Then  en- 
tering the  law  school  of  the  University  of 
Louisville,  Kentucky,  he  was  graduated  there- 
from in  1857,  with  the  degree  of  LL.  B.  For 
the  ne.xt  four  years  he  resided  at  Philadel- 
phia, engaged  in  the  practice  of  law,  having 
first  been  admitted  to  the  liar  by  the  Supreme 
Court  of  Pennsylvania,  in  December,  1858. 

He  came  to  California  long  in  advance  of 
his  father,  and  before  the  latter  was  retired 
from  the  army.  Admitted  to  the  bar  of  our 
Supreme  Court  in  1861,  he  practiced  at  the 
bar  of  San  Francisco  for  over  thirty  years, 
when  he  went  on  the  bench,  where  we  find 
him  now.  .After  locating  in  that  city,  he  first 
entered  the  office  of  Shafter,  Goold  &  Dwinelle. 
afterwards  becoming  a  partner  of  James  McM. 
Shafter;  so  continuing  down  to  the  year  1871. 
Thereafter   he   practiced   alone. 

The  most  celebrated  case  with  which  Jud.ge 
Seawell  was  connected  as  a  lawyer,  as  we  re- 
call (and  we  have  known  him  for  nearly  the 
whole  of  his  career  in  the  metropolis),  was 
the  Black  will  case.  James  Black,  who  came 
to  California  long  before  the  gold  hunters  of 
1848-49,  died  in  1870,  leaving  a  very  large  es- 
tate in  Marin  cotmty.  He  was  married  twice, 
Mrs.  Burdell,  wife  of  Dr.  (ialen  Hm-dell.  a 
leading  denlisl  of  San  b'rancisco,  was  Black's 
only  cliild.  Ilei"  mother,  the  first  Mrs.  Black, 
died  in  Dr.  Burdell's  operating  chair,  from  the 
effects  of  chloroform,  .\flerwards.  Black  mar- 
ried a  Mrs.  Pacheco.  a  widow  with  a  large 
number  of  children.  I'.y  bis  will,  I'.lack  left 
all  of  his  |)roperly  to  liis  la>t  wife  and  iter  chil- 
dren, to  the  exclusion  of  Mrs.  Burdell.  James 
.McM.  Shafter  and  James  M.  Seawell  were  em- 
ployed to  contest  ibe  will.  The  case  was  tried 
three  times  in  .Marin  county,  the  jury  each 
lime  disagreeing.  ll  was  then  ir.inslened  to 
San  l'"|-ancisco.  and  Iried  before  lion.  M.  II. 
Mvrick.  Probate  Judge,  and  a  jury.  This 
iri.il  lasted  three  weeks.  ;ind  the  jury  rendered 
;i  verdict  in  f.i\'or  of  .Mrs.  I'.nrdell.  No  mo- 
lion  was  matle  for  a  new  trial,  nor  was  any 
;ip])eal  taken.  The  attorneys  on  the  losing 
side  were  Alexander  Campbell,  now  of  Los 
.Angeles  (q.  v.)  ;  Sidney  V.  Smith,  Sr.  (q. 
v.),  and  Samuel  M.  Wilson  ( c|.  x.^  The  ground 
of  contest  was  thai   P.lack  was  of  unsound  mind 


740 


History  of  the  Bench  and  Bar  of  California. 


at  the  tinu'  he  made  tlio  will.  Ex-District 
Judge  J.  B.  Southard  was  called  in  as  as- 
sociate counsel  with  Shafter  &  Seawell.  After 
the  third  trial  Shafter  and  Southard  aban- 
doned all  hope,  but  Seawell  and  Dr.  Burdell 
nursed  it  along  to  victory.  The  three  attor- 
neys. Snafter.  Seawell  and  Southard,  received 
no  cash  retainer,  but  large  contingent  fees. 
We  have  understood,  on  good  authority,  that 
Judge  Seawell  sold  his  interest  for  $23,000. 

The  strong  lawyer,  James  P.  Treadwell  (q. 
v.),  regarded  Judge  Seawell  as  one  of  our 
ablest  lawyers,  and  used  to  send  him  law  busi- 
ness, being  himself  possessed  of  great  wealth, 
and  not  being  in  regular  practice.  The  Judge 
is  a  good  Latin.  Greek  and  German  scholar. 

Judge  Seawell  was  elected  to  the  office  of 
Superior  Judge,  as  a  Democrat,  in  November. 
1892.  He  was  re-elected  in  November.  1898. 
the  Non-Partisans  endorsing  him ;  and  his 
present  term  will  end  in  January,  1905.  As  a 
Judge  he  is  calm  and  deliberate,  always  in 
earnest  quest  of  facts,  patient  in  hearing,  and 
true  in  determination.  He  is  of  a  contempla- 
tive countenance,  and  of  unassuming  yet  mag- 
isterial bearing.  There  are  very  few  Judges 
with  manner  so  agreeable  on  the  bench. 

The  Judge  married,  at  San  Francisco,  in 
1865.  the  daughter  of  Rev.  Dr.  Ver  Mehr,  an 
Episcopal  divine.  His  children  are  two  grown 
sons,  Victor  F..  a  business  man  of  San  Fran- 
cisco,   and    Harry   W.,   an    artist. 

GEORGE    W.    SCHELL. 

George  W.  Schell  is  a  native  of  New  York 
State.  He  received  a  good  academic  edu- 
cation, and  taueht  school  before  coming  of  age. 
He  read  law  in  the  office  of  the  distinguished 
Lyman  Tremain  in  Albany,  and  was  there 
admitted  to  the  bar  in  1861.  He  started  for 
California  in  the  same  year,  by  way  of  Pan- 
ama, arriving  at  San  Francisco  October  6th. 
He  proceeded  at  once  to  Knight's  Ferry,  Stan- 
islaus county,  and  entered  upon  the  practice 
of  law.  In  1863  he  was  chosen  county  superin- 
tendent of  public  schools,  being  the  only  Re- 
publican elected  in  that  Democratic  county. 
He  served  the  term  of  two  years.  From  Sep- 
tember. 1864  to  January,  1869,  he  was  deputy 
United  States  collector  of  internal  revenue. 
In  the  fall  of  1873  he  was  elected  County 
Judge  and  served  from  January  i,  1874,  for 
two  years.  He  refused  to  be  a  candidate  for 
re-election,  preferring  to  follow  the  profes- 
sion. 

Judge  Schell  was  a  member  (elected  at 
large)  of  the  constitutional  convention  of  1878. 


Governor  Perkins  appointed  him.  in  1880,  a 
member  of  the  board  of  State  prison  di- 
rectors, where  he  served  four  years,  being 
president  of  the  board  two  years  of  that  per- 
iod. The  Judge  was  a  delegate  to  the  Republi- 
can national  convention  which  nominated 
James  G.  Blaine  for  president — Chicago.  1884. 
In  1888  he  was  one  of  the  Harrison  presidential 
electors.  In  June.  1890,  he  was  appointed  by 
the  United  States  attorney-general  special 
attorney  for  California,  to  conduct  proceedings 
for  the  enforcement  of  the  Chinese  exclusion 
act.  The  government  placed  a  high  estimate 
on  his  services,  and  compensated  him  hand- 
somel}'.  He  served  in  this  capacity  one  year, 
when  the  appropriation  made  by  congress  for 
this  service  was  exhausted. 

Judge  Schell  located  at  Modesto  when  that 
place  became  the  county  seat  in   1871.     From 


that  time  until  he  removed  to  San  Francisco 
in  1886.  he  enjoyed  a  large  income  from  his 
professional  practice,  and  there  was  probably 
no  more  conspicuous  or  more  respected  public 
man  in  his  section  of  the  State.  He  became  the 
owner  of  considerable  property.  In  San  Fran- 
cisco he  formed  a  partnershii)  with  Mr.  John 
J.  Scrivner.  which  continued  from  1890  to 
1896.  Mr.  Scrivner  had.  himself,  only  recently 
removed  to  Modesto,  where  the  two  gentle- 
men had  property  interests  in  common,  which 
continued  long  after  their  law  partnership  in 
San  Francisco  had  ceased.  Judge  Schell  has 
been  alone  in  the  practice  since  that  time. 
He  has  always  been  active  and  influential  in 
the  councils  of  his  party.  In  1899  he  was  one 
of  the  strongest  opponents  of  the  boss  ele- 
ment in  the  Republican  county  convention  of 
San    Francisco,   and   led   the    reform    forces   to 


^«t. 


•4  ^^5^ 


I 


Luc  ten  Sha.Tv 


History  of  the  Bench  and  Bar  of  California. 


743 


a  signal  triumph.  He  was  chairman  of  the 
committee  on  platform  of  that  body.  This 
was  a  large  committee,  some  of  the  members 
of  which  made  it  generally  known  that  he  was 
the  author  of  the  platform  that  was  reported 
and  adopted. 

Judge  Schell  is  an  earnest,  sincere  man, 
descended  from  Revolutionary  patriots  on  both 
sides  of  his  house,  and  takes  a  deep  interest 
in  public  affairs,  especially  in  national,  State 
and  local  politics.  At  the  age  of  sixty,  he  is 
conducting  a  large  and  varied  practice,  and 
seems  to  be  in  his  prime. 

In  person  he  is  well  proportioned,  not  large- 
ly, but  strongly  framed  and  soundly  constitu- 
tioned.  He  is  capable  of  long  and  continued 
effort,  and  is  devoted  to  his  calling.  Few  men 
have  been  more  active  in  both  public  and 
professional    life. 

He  was  united  in  marriage  in  1866  to 
Miss  Sarah  J.  Chase,  daughter  of  Dr.  R.  D. 
Chase,  of  Albany.  N.  Y.  He  has  two  children, 
Lena  A.  and  Fred  W.  The  latter  is  on  the 
Examiner    staff. 

LUCIEN    SHAW. 

Lucien  Shaw,  Judge  of  the  Superior  Court  of 
Los  Angeles  county,  was  born  in  Switzerland 
county,  Indiana,  March  i,  1845.  His  father  was 
William  Shaw,  a  native  of  Scotland ;  and  his 
mother  Linda  Rous,  was  a  native  of  England. 
The  son  lived  on  a  farm  in  boyhood  and  youth. 
He  was  educated  at  the  common  school,  and  at 
an  academy.  He  was  graduated  from  the 
Indianapolis  Law  School  in  1869,  and  practiced 
law  at  Bloomfield,  Greene  county,  Indiana, 
until  1883.  In  that  year  he  came  to  California, 
and  has  always  since  lived  at  Los  Angeles, 
excepting  two  years'  residence  at  Fresno. 

Judge  Shaw  was  engaged  in  the  practice  of 
law  when  Governor  Waterman  appointed  him 
to  his  present  place  on  the  Superior  bench,  to 
fill  a  vacancy,  in  March,  1889.  He  never  held 
nor  sought  office  till  he  was  appointed  Superior 
Judge.  He  got  this  appointment  on  the  rec- 
ommendation of  the  bar  without  active  seek- 
ing. He  filled  out  the  term,  which  ended  in 
January,  1891,  and  continued  on  the  bench, 
having  been  elected  on  the  Republican  ticket, 
in  November  previous,  for  a  full  term  of  six 
years.  He  was  re-elected  in  November,  1896, 
and  his  ])rescnt  term  will  expire  in  Januarv. 
1903. 

The  first  case  of  public  importance  to  come 
before  Judge  Shaw  was  Bigelow  vs.  City  of 
Los  Angeles,  early  in  1889,  to  enjoin  the  con- 
struction   of    the    First-street    viaduct    bv    the 


Cable  Railway  Company.  By  the  Judge's  re- 
fusing a  temporary  injunction  pending  the 
action  a  delay  of  at  least  two  years  in  the 
building  of  the  cable  line  to  Boyle  Heights 
was  prevented.  Judge  Shaw  presided  at  the 
second  trial  of  the  case  of  the  People  vs. 
Richard  S.  Heath,  charged  with  the  murder 
of  Louis  B.  McWhirter,  this  trial  occurring 
in  March  and  April,  1894.  It  attracted  public 
attention  because  of  the  tumultuous  character 
of  the  procedings  on  the  first  trial,  and  be- 
cause of  the  prominence  of  some  of  the  per- 
sons who  were  inentioned  in  connection  with 
it.  The  Judge  succeeded  in  maintaining  first 
class  order,  and  both  sides  were  satisfied  with 
the  conduct  of  the  case. 

Some  of  the  other  cases  of  importance  which 
he  has  tried  are  the  following:  The  City  of 
Los  Angeles  vs.  Pomeroy,  the  most  important 
case  ever  tried  in  the  county,  in  which  he 
practically  saved  to  the  city  its  title  to  the 
water  in  the  Los  Angeles  river ;  Byrne  vs. 
Drain,  in  which  he  held  the  charter  was  in 
force  on  street  opening  procedings ;  Farmers' 
Canal  Co.  vs.  Simmons,  1899,  in  Kern  county ; 
and  Fresno  Canal  &  Irrigation  Co.  vs.  Alta 
Irrigation  District. 

Messrs.  Lee  &  Scott,  the  prominent  Los  An- 
geles firm,  who  represented  the  city,  have 
kindly  stated  the  Pomeroy  case  as  follows : 

"The  suit  of  the  City  of  Los  Angeles  vs. 
Pomeroy  et  al.,  was  for  the  condemnation  of 
lands  f(^r  the  headworks  of  a  municipal  water 
system  in  the  gravelly  bottom  lands  through 
which  the  surface  stream  of  the  Los  Angeles 
river  flows.  The  defendants  claimed  that  the 
underground  waters  in  their  lands  were  per- 
colating, belonged  to  them  as  the  owners  of 
the  soil,  and  should  be  paid  for  in  condemna- 
tion; the  city  claimed  that  they  were  properly 
a  part  of  the  underground  stream  of  the  river 
in  whose  waters  the  city  as  successor  to  the 
pui'lild,  had  paramount  rights.*  As  the  Su- 
preme Court  says  in  affirming  the  judgment  in 
favor  of  the  city  (124  Cal.,  597-634)  :  "This 
is  the  pioneer  case  of  its  kind,  so  far  as  this 
Court  is  concerned."  It  involved  the  applica- 
tion of  the  common  law  rules  as  to  under- 
ground streams  to  the  entirely  new  conditions 
(^xisting  in  CdiiiUrios  like  SoutluTu  California. 
Judge  Siiaw's  instructions  to  the  jury  ex- 
pressed most  clearly  and  elaborately  the  law 
of  the  case  as  to  the  correct  definition  of  tuuler- 


*By  virtue  of  the  original  grant  from  Spain 
to  the  ancient   Pueblo. — Editor. 


744 


History  of  the  Bench  and  Bar  of  California. 


ground  streams,  the  relations  to  the  surface 
stream  of  adjacent  and  subjacent  underground 
waters,  and  the  respective  rights  and  obliga- 
tions of  the  owners  of  the  waters  of  the  stream 
and  of  the  soil ;  and  in  his  refusal  to  give  cer- 
tain other  instructions  asked  by  defendants  he 
established  the  proposition  that  the  city,  as 
the  successor  to  the  Pueblo,  was  not  limited  in 
its  use  of  the  waters  of  the  river  to  the  par- 
ticular purposes  for  which  the  Pueblo  used  it, 
or  to  the  four  square  leagues  of  territory  origi- 
nally embraced  within  its  limits.  He  was  in 
every  instance  upheld  by  the  Supreme  Court, 
and  the  case  will  always  remain  the  leading 
case  in  ttie  State  upon  these  very  important 
subjects.  Its  value  in  establishing  water  rights 
in  Southern  California,  and  especially  to  the 
City  of  Los  Angeles,  cannot  be  overesti- 
mated." 

The  instructions  in  this  Pomeroy  case  were 
very  full  and  elaborate,  on  the  subject  of 
underground  waters  especially;  they  were  all 
prepared  by  Judge  Shaw,  and  involved  a  mod- 
ification of  the  generally  accepted  rule  of  the 
common  law  giving  percolating  waters  to  the 
owner  of  the  soil,  and  the  adaptation  of  the 
law  to  the  new  conditions  found  in  arid  coun- 
tries such  as  Southern  California.  They  were 
in  all  respects  upheld  by  the  Supreme  Court, 
and  the  case  will  always  remain  a  leading  case 
on  that  important  subject  of  underground 
waters.  The  practical  effect  of  the  rulings 
was  to  preserve  to  the  city  its  right  to  the 
water  of  the  river,  as,  if  the  contrary  rule 
had  been  adoi)ted,  the  water  of  the  river  would 
have  been  immediately  drained  away  by 
ditches  and  tunnels  made  by  private  parties  in 
the  adjacent  gravelly  lands.  It  is  also  of 
great  importance  in  settling  the  rights  of 
many  other  water  supplies  in  Southern  Cali- 
fornia  similarly   situated. 

In  Byrne  vs.  Drain,  Judge  Shaw  held  that 
since  the  amendment  of  1896  to  the  constitu- 
tion the  street  opening  law  of  March,  1889, 
ceased  to  be  operative  in  Los  Angeles,  and 
the  provisions  of  the  city  charter  on  the  sub- 
ject revived  and  became  the  law  controlling 
those  proceedings.  The  decision  was  affirmed 
by  the  Supreme  Court  on  appeal. 

Owing  to  his  long  experience  on  the  I)ench. 
and  the  number  of  cases  involving  water 
rights  which  he  has  tried,  he  has  often  been 
called  to  preside  in  important  cases  in  other 
counties.  One  of  these  was  the  Farmers' 
Canal  Co.  et  al.  vs.  Miller  &  Lux,  in  Kern 
county,  in  iSgg,  the  trial  lasting  five  weeks 
and   requiring  the  determination   of  the  rights 


to  all  the  waters  of  Kern  river,  and  the  claims 
of  some  fifteen  water  companies  thereto.  An- 
other case  was  that  of  Fresno  Canal  &  Irri- 
gation Co.  vs.  Aha  Irrigation  District,  in 
Fresno,  in  1900.  the  trial  lasting  seven  weeks, 
with  the  result  of  settling  the  right  to  the  » 
greater  part  of  the  flow  of  Kings  river  from 
which  the  great  raisin  district  is  supplied  with 
water    for    irrigation. 

The    Judge    was    married    to    Miss    Hannah 
Hartley,  of  Michigan,  on  the  29th  of  July,  1873. 


M.   L.   SHORT. 

Montgomery  Livingston  Short  was  born  in 
Ulster  county,  New  York,  August  4,  1851. 
While  he  was  quite  young  his  parents  moved 
to  Iowa,  and  from  there  crossed  the  plains  in 
1863,  landing  in  San  Jose,  July  4  of  that  year. 
In  1874  tliey  went  to  Tulare  county,  settling  in 
the  famous  Mussel  Slough  district.  Mr.  Short 
left  the  public  schools  at  the  age  of  fifteen, 
and  from  that  time  he  conducted  his  own  edu- 
cation. For  nine  years  he  taught  school — two 
years  of  which  he  was  principal  of  the  Han- 
ford  schools.  He  studied  law,  passed  examina- 
tion before  the  Supreme  Court,  and  was  ad- 
mitted to  the  bar  in  1885.  He  first  practiced 
in  San  Diego  county,  and  was  elected  city  at- 
torney of  Oceanside.  Resigning  that  position 
in  1891,  he  returned  to  Kings  county,  and  on 
its  organization  became  its  first  district  attor- 
ney, to  which  position  he  was  re-elected  by  an 
increased  majority  at  the  election  of  1894.  His 
earnestness  and  sincerity  of  character  mark 
him  as  a  steadily  growing  man.  His  careful 
and  judicious  methods  of  handling  public 
prosecutions  have  saved  the  county  thousands 
of  dollars,  while  his  extreme  impartiality  in 
conducting  cases  commands  universal  respect. 

In  November,  1898,  Mr.  Short  was  elected 
to  fill  the  unexpired  term  of  Hon.  Justin  Ja- 
cobs for  the  office  of  Judge  of  the  Superior 
Court  of  Kings  county.  On  November  6, 
1900,  he  was  re-elected  to  the  office  of  Superior 
Judge  for  a  full  term  of  six  years. 


B.    N.    SMITH. 


Judge  Smith,  of  the  Los  Angeles  Superior 
Court,  was  born,  August  13,  1839,  in  McHenry 
county,  state  of  Illinois.  He  was  the  youngest 
of  thirteen  children.  His  parents  were  from 
New  England.  His  grandfathers  on  both  sides 
were  officers  in  the  Revolutionary  War,  and 
men  of  education  and  fortune.  His  father  was 
a  captain  in  the  War  of  1812.  and  a  member  of 
the    New    York    legislature    in    1832. 

Judge   Smith    was   raised  on   a   farm   in    Illi- 


Jeremiah  F,  Sullivan 


History  of  the  Bench  and  Bar  of  California. 


747 


nois.  He  received  a  good  English  educalion 
with  the  higher  mathematics  and  Latin,  in  the 
academies  of  northern  IlHnois.  He  came  to 
California  in  i860.  He  taught  school,  mined 
some,  drove  teams  in  freighting  over  the  Sierra 
Nevada  Mountains,  and  in  the  latter  part  of 
1863  went  back  to  Illinois  and  enlisted  in  a 
regiment  that  had  been  raised  in  his  home 
place,  and  served  as  a  private  until  the  close 
of  the  Civil  War.  He  then  went  to  the  Uni- 
versity of  Michigan,  and  was  graduated  from 
the  law  department  as  L.  B.  He  began  the 
practice  of  law  at  Woodstock,  the  county  seat 
of  his  home  county  in  Illinois.  He  put  out  his 
shingle  and  went  it  alone,  depending  only  on 
himself,  although  at  the  time  the  bar  of  that 
place  was  a  strong  one.  He  succeeded  from 
the  first.  For  thirteen  years  he  was  County 
Judge  of  that  county. 

He  came  to  Los  Angeles  in  February,  1887, 
and  took  an  active  part  in  the  Harrison  cam- 
paign of  the  following  year  as  a  stump- 
speaker.  He  was  elected  Judge  of  the  Supreme 
Court  in  i8go,  and  re-elected  in  1896. 

Added  to  his  great  experience  and  high  char- 
acter are  other  qualities  that  adorn  the  bench. 
He  has  deep  legal  knowledge,  broad,  general 
information,  the  judicial  temper,  the  habit  of 
.study,  honesty  of  mind  and  patience  in  inves- 
tigation.    He  is  always  practical  and  sincere. 

The  Judge  is  a  man  of  family.  His  mother, 
Mrs.  Mary  Smith,  who  lived,  like  Thomas 
Parr,  in  three  centuries,  died  at  the  Judge's 
home  in  Los  Angeles,  so  recently  as  January 
II,  1901.     She  was  born  September  22,  1795. 


LUCAS  F.  SMITH. 

Judge  Lucas  F.  Smith  was  born  in  Wells 
county,  Indiana,  in  1845.  He  worked  on  a 
farm  until  fifteen  years  of  age,  when  he 
learned  the  printing  business.  In  August, 
1862,  at  the  age  of  seventeen,  he  enlisted  in  Co. 
G,  loist  Regiment  Indiana  Volunteers,  and 
served  through  the  war,  being  honorably  dis- 
charged in  July,  1865.  He  was  a  member  of 
the  Fourteenth  Army  Corps,  Army  of  the 
Cumberland,  and  served  under  General  Rose- 
crans  at  Chickamauga,  and  under  General 
Sherman  in  the  Atlanta  campaign,  and  in 
the  march  to  the  sea,  and  through  the  Caro- 
linas.  He  was  present  at  the  surrender  of 
Cicneral  Johnston's  army  in  North  Carolina. 
Then  with  his  regiment  he  marched  through 
Virginia  to  Washington  City,  and  was  in  the 
grand  review  of  May,   1865. 

After  the  war  he  was  offered  an  appoint- 
ment   at   the    West    Point    Military    Academy, 


but  declined  it.  and  entered  the  University 
of  Michigan,  and  was  graduated  from  the  law 
department  in  the  spring  of  1868.  After  vis- 
iting the  Western  states  in  search  of  a  loca- 
tion, he  settled  at  Bonham,  Texas.  He  was 
elected  county  attorney  of  Fannin  county  in 
1869,  and  was  appointed  district  attorney 
of  the  Eleventh  judicial  district,  composed  of 
five  counties,  in  1870.  In  1874  he  formed  a 
law  partnership  with  Gov.  J.  W.  Throck- 
morton and  Judge  Brown,  at  Sherman, 
Texas.  Soon  afterwards  he  was  appointed 
L'nited  States  district  attorney  for  New 
Mexico,  which  office  he  resigned  to  raise  a 
comnany  to  fight  the  Apache  Indians,  who 
were  then  murdering  the  settlers  indiscrim- 
inately. For  this  service,  he  w-as  offered  a 
commission  in  the  regular  army,  but  did  not 
accept  it.  He  then  formed  a  law  partner- 
ship with  E.  W.  Crozier,  Esq.,  son  of  ex- 
U.  S.  Senator  Crozier,  at  St.  Louis,  Mo. 
While  there,  he  was  offered  and  accepted 
a  law  partnership  with  Judge  J.  M.  Hurt, 
of  Dallas.  Texas.  He  continued  with  Judge 
Hurt  until  the  latter  was  elected  to  the  Ap- 
pellate Court  bench  of  Texas  in  1878,  when 
he  formed  a  law  partnership  with  Col.  W.  L. 
Crawford,  one  of  the  ablest  and  best  known 
lawyers  in  the  Southwest.  In  1882,  he  was 
married  to  Miss  Delia  Gouldey,  of  Louisiana, 
and  has  six  children.  In  1885  he  visited  Cali- 
fornia, and  was  so  pleased  with  the  State 
that  he  closed  up  his  business  in  Texas  and 
moved  to  Santa  Cruz,  where  he  engaged  in 
the  practice  of  law.  In  Xovembcr,  1896, 
he  was  elected  Judge  of  the  Superior  Court, 
which   position   he   now   holds. 

JEREMIAH   F.   SULLIVAN. 

Jeremiah  F.  Sullivan  was  born  at  Canaan, 
Conn.,  on  August  19,  1851.  His  parents,  who 
were  natives  of  Ireland,  brought  him  with 
them  to  California  at  the  age  of  eight  months 
in  April,  1852.  His  father,  Michael  Sulli- 
van, is  represented  as  having  been  a  man  of 
judgment,  wit,  and  excellent  memory.  Of 
little  early  schooling,  Michael  Sullivan  was 
self-educated  to  a  considerable  degree.  He 
was  an  ardent  lover  of  American  institu- 
tions, and  was  well-informed  in  the  history 
of  tile  I'nited  States.  After  arriving  in  Cali- 
fornia he  worked  as  a  miner  for  ten  years 
in  the  mines  of  Nevada  county.  He  was  next 
foreman   in  a  mine  at  Virginia   City,  Nevada. 

J.  F.  Sullivan's  childhood  was  passed  in 
Nevada  City,  Cal.  He  was  in  a  private  school 
until  ten  years  old,  when  his  parents  removed 
to   San    Francisco.     He   attended    St.    Ignatius 


'48 


History  of  the  Bench  and  Bar  of  California. 


College  for  eight  years,  graduating  therefrom 
as  bachelor  of  arts.  He  afterward  received 
from  that  institution  the  degree  of  master 
of  arts.  He  taught  in  that  same  college  in 
the  classics  and  mathematics,  and  at  the  same 
time  studied  law.  Continuing  his  law  read- 
ing for  two  years  more  in  the  office  of  a  well- 
known  San  Francisco  firm,  he  was  admitted 
to  practice  in  the  Supreme  Court  of  the 
State  in  1874.  He  began  the  practice  at  once 
in  that  city.  In  1877  he  was  elected  a  mem- 
ber of  the  board  of  education.  In  1879  he 
was  elected  a  Judge  of  the  Superior  Court, 
being  nominated  by  the  Democrats  and  en- 
dorsed by  the  Workingmen's  party.  He  was 
the  youngest  of  twelve  judges  elected  at  that 
time.  Among  the  cases  submitted  to  him 
for  ad.iudicati(m  was  that  of  Burke  against 
Flood,  one  of  a  number  of  cases  brought 
by  the  stockholders  of  the  California  and  Con- 
solidated Virginia  mines  against  the  bonanza 
firm,  in  which  the  latter,  as  trustees,  were 
charged  with  fraud  in  the  diversion  and  ap- 
propriation of  the  profits  of  the  mines.  This 
suit,  upon  which  the  rest  depended,  the  same 
questions  arising  in  them  all,  and  involving 
upward  of  a  million  dollars,  he  decided  in 
favor  of  the  shareholders.  It  was  never 
appealed,  but  was  settled  outside  of  the  court 
by   compromise. 

On  December  24,  1884,  Judge  Sullivan  de- 
cided the  case  with  which  his  name  will  ever 
be  inseparably  associated,  that  of  Sarah 
Althea  Hill  against  ex-Senator  William 
Sharon,  a  history  of  which  remarkable  con- 
troversy will  be  found  elsewhere  in  this 
volume. 

The  Judge  was  re-elected  to  the  Superior 
Court  bench  for  a  term  of  six  years,  beginning 
with  January  i,  1885.  In  1886,  he  was  nomi- 
nated by  the  Democratic  party  for  Justice 
of  the  Supreme  Court,  and  was  defeated.  In 
1888  he  was  again  nominated,  and,  although 
the  city  of  San  Francisco  gave  him  the  un- 
paralleled majority  of  8,000,  he  was  defeated 
by  Hon.  John  D.  Works,  of  San  Diego,  for 
whom  the  southern  part  of  the  State,  as  a 
result  of  a  great  increase  of  population,  cast 
a   phenomenal    vote. 

Judge  Sullivan  resigned  from  the  Superior 
Court  bench  in  1889,  for  the  same  reason  that 
afterwards  influenced  Supreme  Judge  Pater- 
son  and  which  has  at  times  controlled  the 
like  action  of  other  Supreme  and  Superior 
Judges,  namely,  because  the  practice  of  law 
was  of  higher  consequence  from  a  financial 
standpoint.  He  formed  a  partnership  with  his 
brother.  Matthew  I.  Sullivan,  which  still  ex- 
ists.    The   two  brothers   make   a   strong   com- 


l)inalit)n.     tlie     junior     member    being    also    a 
man    of    strong    legal    talent.      The    firm    has     ^ 
been    in    the    full    tide    of    prosperity    since    it    ■ 
was    established,    over    ten    years    ago.  * 

Judge   Sullivan    was   united   in   marriage  on 
September     13.     1876,    to    Miss    Helen    Bliss, 
daughter    of    George    D.    Bliss,    a    California 
pioneer,    who   had    amassed    a    fortune    in    the      j 
cattle   business. 

Judge  Sullivan  has  been  president  of  the 
Young  Men's  Institute,  and  has  been  promi- 
nciU  in  the  fraternal  and  benevolent  work  of 
other  Catholic  societies.  In  an  address  on  St. 
Patrick's  day,  1886,  in  San  Francisco,  he  said: 

■'It  is  not  to  be  wondered  at  that  the  Irish 
people,  proscribed  mainly  on  account  of  their 
religion,  should  prize  the  mystic  bond  that 
holds  them  together  in  the  embrace  of  an 
enduring  nationality.  To  no  one  who  has 
studied  the  history  of  Ireland  can  it  seem 
strange  that  the  Irishman's  loyalty  to  his 
race  and  his  faith  should  be  blended  in  a  man- 
ner so  unique.  It  is  not  because  the  Irish 
Catholic  does  not  understand  and  fully  appre- 
ciate the  relative  allegiance  that  he  owes  to 
his  government  and  his  God.  The  Catholic 
citizens  of  the  United  States  do  not  desire  a 
union  of  church  and  State,  a  blending  of  func- 
tions essential!}'  distinct.  They  do  not  wish, 
nor  would  they  consent  to.  the  ascendancy  of 
any  church  within  the  State.  The  Irishman 
would  be  the  first,  and  rightly  so,  to  resent 
the  wrongs  of  a  system  under  which  he  him- 
self has  suflfered  so  long  and  so  grievously. 
Grattan.  the  leader  and  the  beloved  of  all 
the  Irish  people,  as  other  leaders  before  hiin 
and  since,  was  a  Protestant.  He  expressed  the 
sentiment  of  Catholic  Ireland  when  he  said: 
'We  hold  the  right  of  private  judgment  in 
matters  of  religion  to  be  as  sacred  in  others 
as  in  ourselves' ;  also  when  he  said,  'The  Irish 
Protestant  can  never  be  free  till  the  Irish 
Catholic   shall   cease  to  be  a  slave.'  " 


A.  M.  STEPHENS. 


.\lln.Tl  M.  Stephens  was  born  in  Tennessee, 
March  22,  1846.  His  father.  Colonel  William 
H.  Stephens,  was  a  prominent  lawyer  of  that 
slate.  A.  M.  Stephens  was  educated  at  the 
University  of  Mississinni.  and  studied  law  with 
L.  Q.  C.  Lamar  at  that  institution.  He  after- 
wards attended  the  Lebanon,  Tennessee,  Law 
School.  He  began  practice  in  January.  1868, 
at  Memphis.  He  was  elected  district  attorney 
of  the  Circuit  Court  of  Shelby  county,  of 
whicli  Memphis  is  the  county  seat,  in  1870.  He 
practiced  law  at  Memphis  until  1874.  He  then 
moved  to  Los  Angeles.  California.  He  was 
elected  County  Judge  of  Los  Angeles  county 
in  1877.  and  served  until  the  County  Court  was 
abolished  by  the  adoption  of  the  new  consti- 
tution, in  January.  1880.  Since  that  time  he 
has    been    engaged    in    active    i)ractice    at    Los 


D.  K.   Trask 


History  of  the  Bench  and  Bar  of  California. 


'51 


Angeles.  His  two  oldest  sons.  William  W. 
Stephens  and  Albert  M.  Stephens,  Jr..  arc 
members  of  the  bar.  and  associated  with  him. 
His  wife  was  the  daughter  of  Major  M.  J. 
Wicks  of  Memphis,  to  whom  he  was  married 
in  1870.         

D.  K.  TRASK. 

Dummer  Kiah  Trask,  a  Judge  of  the  Su- 
perior Court  of  Los  Angeles  county,  was  born 
in  Cincinnati.  Ohio.  July  17.  i860.  He  is  de- 
scended from  Captain  William  Traske.  one 
of  the  five  "Old  Planters"  of  Salem.  Massa- 
chusetts, who  located  there  in  1628.  His  par- 
ents removed  to  Jefferson,  Maine,  when  he 
was  but  a  year  old,  and  he  grew  up  there. 
When  he  was  six  years  old  his  father  died. 
His  mother  still  occupies  the  old  homestead 
in  Jefferson,  at  a  great  age. 

Our  subject,  having  attended  the  district 
school,  and  worked  in  summer  on  the  farms 
and  in  the  mills  of  his  neighborhood,  began 
teaching  school  at  the  age  of  seventeen.  While 
thus  employed  he  also  attended  the  Nichols 
Latin  School  at  Lewiston.  He  afterwards 
graduated  from  the  Waterville  Classical  In- 
stitute. 

Judge  Trask  came  to  California  in  May. 
1882,  and  located  first  in  San  Joaquin  county. 
He  taught  school,  served  as  a  member  of  the 
board  of  education,  and  was  principal  of  the 
Stockton  Business  College  and  Normal  Insti- 
tute. At  this  institution  he  had  under  his  in- 
struction at  different  times  several  hundred 
teachers  and  business  men  from  all  parts  of 
the  Pacific  Coast. 

Judge  Trask  gave  up  teaching  in  1889.  and 
having  prepared  himself  for  the  l)ar.  he  lo- 
cated in  Los  Angeles,  in  1890,  and  commenced 
practice.  He  was  prosecuting  a  fine  law  busi- 
ness when,  in  November.  1898,  Superior  Judge 
Van  Dyke  was  elected  to  the  Supreme  bench. 
Governor  Budd  appointed  our  subject  to  serve 
as  Superior  Judge  for  the  unexpired  term  of 
two  years.  Tlie  nrw  Judiie'in  this  period 
showed  such  impartiality  and  industry,  and 
brought  such  general  ability  to  the  discharge 
of  his  duties,  that,  at  the  general  election  of 
November,  1900,  although  he  was  a  Demo- 
crat, and  his  party  was  in  a  hopeless  minority, 
he  was  elected  his  own  successor  for  a  full 
term  of  six  years. 

During    Judge    Trask's    two    years    on    the 
bench,    thus    far.    a    number    of   appeals    liave 
lieen  taken  from  his  decisions,  but  he  has  al- 
ways been  sustained  by  the  Supreme  Court. 
Tlie  Judge  has  always  kept  alive  his  interest 


in  the  cause  of  education.  He  was  a  member 
of  the  Los  Aneeles  City  board  of  education 
for  189,^94-  He  is  prominent  in  the  order  of 
Knights  of  Pythias.  He  is  Grand  Prelate  of 
the  order  in  this  State. 


JAMES  D.  THORNTON. 

James  Dabney  'I'hornlon,  who  was  a  justice 
of  the  Supreme  Court  for  the  period  of  eleven 
years,  beginning  with  the  inauguration  of  the 
present    constitution    and    the    organization    of 
the   court   in   January,    1880,   was   born   at   his 
fathers  country  residence,  Oak  Hill,  Cumber- 
land county,  Virginia,  January  18,   1823.     His 
father,  William  Mynn  Thornton,  was  a  farmer, 
planter  and  merchant,   and   of   English  ances- 
try.    His   mother,   Anderson,   was   of   Scotch- 
Huguenot   lineage.      The    son    in   boyhood   at- 
tended the   grammar   and  classical   schools   of 
his  neighborhood,   the  principals  and  teachers 
of  which  were  nearly  all  able  instructors,  col- 
lege  graduates,   and   of   high   family.      In   the 
fall  of  1838  he  entered  the  University  of  Vir- 
ginia,   where    he    took    a    three    years'    course. 
That   great    institution,   founded   by   Jefferson, 
was  divided  into  various  schools,  each  issuing 
diplomas.      Our    subject    was    duly    graduated 
from  the  schools  of  ancient  languages,  modern 
languages,  chemistry,  natural  philosophy,  moral 
philosophy,    and    received    certificates    of    pro- 
ficiency in  political  economy  and  geology  and 
mineralogy. 

h   was  now  July.   1841,  and  he  began  read- 
ing   law    in    iiis    native    county.      He    studied 
alone,    but    had   the   counsel    of   II.    P.    Irving 
(late  of  the  San  Francisco  bar),  who  was  his 
])reccptor.    if   he   had   any.      From   the   fall   of 
1842    to    the    fall    of    1845   he    was   clerk   in    a 
commission  house  in  Richmond  for  the  sale  of 
tobacco   and   other   produce.      During   this   la- 
borious  period   he    kept    at    his    law    books   at 
night.     In    1847   he   made  a  visit  to  Alabama. 
On   February   17,   1848,  he  married,  at  Eutaw, 
(ircen  county,  in  that  state.  Miss  Sarah,  daugh- 
ter of  Harry   I.  Thornton.     The  lady,  who  is 
still   living,   is   no  1)1o.h1   relative  of  his.     Her 
f.itluT,   who   was   llien   a   distinguished  lawyer. 
arrived  in  California  (Ml  January  i.   i85_',  liav- 
ing  been  appointed   by    President   Fillmore,   in 
1851.   one   of   the    United    States   commission- 
ers on  California  land  claims.     He  died  at  San 
Francisco  in  January.  1861.    He  was  the  father 
(if   the    Harry    I.    Tliornton    who    won    distinc- 
tion   in    law    and    pc^itics.    and    on    the    battle 
field,     who     is    affectionately     remembered    all 
over   the   coast,    and    who   died   at    Fresno,    in 


752 


History  of  the  Bench  and  Bar  of  California. 


1895.  His  widow.  Lucy  Crittenden  'riiornton, 
survived  until  1885,  reaching  the  age  of  eighty- 
three  years. 

Returning,   for   a   brief   season,   to   Virginia, 
Mr.  Thornton  went  back  to  Alabama  to  live,  in 
November,  1848.     He  was  admitted  to  the  bar 
in  that  state  in  February,  1849,  and  practiced 
there  until  the  spring  of  1854,  when  he  came 
to  California,  taking  steamer  at  New  Orleans 
on  May  22.  and  arriving  at  San  Francisco  on 
the  14th  of  June.    He  was  admitted  to  the  bar 
of   our    Supreme    Court    in    1855.      From   that 
time  down  to  as  late  as  1900  he  followed  the 
profession    at    San    Francisco,    excepting    the 
considerable  period  when  he  was  on  the  bench, 
and   an    intermission    of   some    fifteen   months 
during    the    Civil    War.    when,    like    Solomon 
Heydenfeldt.  Gregory  Yale,  A.   P.   Crittenden. 
Volney   E.   Howard.   Edward  J.    Pringle.   and 
other  strong  and  bright  men  from  the  South- 
ern   States,   he   refused   to   take   the    iron-clad 
test    oath    prescribed    by    the    legislature    for 
practicing   attorneys.     He   did  take   that   oath, 
however,  after  holding  out  for  the  time  stated. 
Immediately    after    his    arrival,    our    friend 
joined  the  law  firm  of  Thornton  &  Williams 
(the  elder   H.  I.   Thornton  and  John  J.   Wil- 
liams),   which    now    became    Thornton.    Wil- 
liams &  Inornton.     The  partnership   was  ar- 
ranged before  he  left   the   South.     Upon   the 
death  of  the  senior  member,  in   1861.  the  firm 
became    Williams    &    Thornton,    and    so    con- 
tinued  until    Mr.    Thornton   became   judge   of 
the  Twenty-third  Judicial  District  Court.  San 
Francisco.     This  was  a  newly-created  tribunal. 
and   Judge   Thornton    was   the   only   occupant 
of  its  bench.     He  was  appointed  by  Governor 
Irwin,    and    served    from    April.    1878,    to    the 
end  of  1879.  when  the  court  passed  away  with 
the  old  constitution. 

In  the  fall  of  1879  Judge  Thornton  was 
elected,  as  a  Democrat,  one  of  the  associate 
justices  of  the  Supreme  Court,  and  so  became 
one  of  the  first  members  of  that  tribunal  un- 
der the  present  constitution,  adopted  in  that 
year.  He  and  Justice  McKinstry.  at  the  or- 
ganization of  the  court,  in  January.  1880.  drew 
the  longest  terms — eleven  years.  Judge  'i'hnrn- 
ton  served  out  his  term.  It  is  worth  noting 
that  in  the  great  case  of  the  Spring  Valley 
Water  Company  vs.  the  City  of  San  Fran- 
cisco, he  filed  a  dissenting  opinion  in  favor 
of  the  city.  Attention  may  also  be  specially 
directed  to  his  opinion  in  the  notable  partition 
suit  of  Emeric  vs.  Alvarado  in  63d  California 
Reports,  pace  529. 

The  Judge  has  always  been  a  Christian  man. 


and  has  long  been  an  elder  in  St.  John's  Pres- 
byterian Church;  and  in  this  connection  it  is 
of  interest  to  refer  to  his  remarks  from  the 
Supreme  bench  when  the  death  of  Judge  Sam- 
uel Bell  McKee  was  announced.  March  10. 
1887,  in  which  the  words  occur:  "He  was  a 
believer  in  the  religion  of  Jesus  Christ."  At 
a  meeting  of  the  San  Francisco  Presbytery  on 
March  3.  1887,  he,  by  appointment,  read  an 
original  paper,  entitled  "A  Voice  from  the  Pew 
to   the   Pulpit." 

The  Judge  is  a  man  of  small  means,  own- 
ing his  own  home  in  the  great  city.  Both 
he  and  Mrs.  Thornton  are  in  vigorous  health. 
They  have  had  eleven  children,  of  whom  six 
are  living — three  sons  and  three  daughters. 
The  sons  are  Crittenden  Thornton,  the  well- 
known  San  Francisco  attorney ;  William,  a 
Inisiness  man  of  that  city :  and  John,  a  lawyer 
at  Nome.  Alaska.  The  daughters  are  Eliza- 
beth, the  wife  of  Admiral  Watson  of  the  U. 
S.  Navy ;  Margaret,  wife  of  Abbot  Kinney 
of  Los  Angeles,  a  business  man  and  orchard- 
ist.  who  is  also  a  man  of  a  high  order  of 
ability  as  a  general  writer,  and  is  the  author 
of  several  books ;  and  Miss  Virginia,  who  re- 
sides with  her  parents. 


J.  M.  TROUTT. 

James  Morris  Troutt.  a  San  Francisco  Su- 
perior Judge  since  January,  1891,  was  born  in 
Roxbury  (now  a  part  of  Boston),  Mass.,  De- 
cember 20th,  1847.  He  came  to  California  in 
the  fall  of  1853,  and  has  always  since  lived  ai 
San  Francisco.  His  father.  Hiram  J.  M. 
Troutt,  arrived  in  that  city  in  March,  1850, 
via  Cape  Horn.  The  son  attended  the  public 
schools  and  in  1871  was  graduated  at  Harvard 
College.  He  was  admitted  to  tlic  bar  of  the 
Supreme  Court  of  California  in  August,  1874. 
In  1877  he  and  Ramon  E.  Wilson,  now  de- 
ceased, became  partners  under  the  firm  name 
of  Troutt  &  Wilson.  Subsequently  Mr.  Wilson 
became  a  partner  of  Judge  M.  M.  Estee.  In 
1881,  Judge  Jas.  C.  Gary  and  Mr.  Troutt  be- 
came partners  in  law  practice. 

In  1882  the  consolidated  Republican  conven- 
tions nominated  Mr.  Troutt  for  the  Superior 
bench,  with  Judges  Waymire  and  Allen,  and 
Columbus  Bartlett.  His  party  lost  everywhere 
in  California  in  that  campaign.  In  1885  and 
1886  he  was  first  assistant  district  attorney  in 
San  Francisco.  In  1890.  he  was  elected  to 
the  Superior  bench,  for  the  unexpired  term  of 
Judge  T.   K.   Wilson,  resigned,  and  has  since 


History  of  the  Bench  and  Bar  of  California. 


53 


been  elected  twice  for  a  term  of  six  years. 
His  present  term  will  expire  in  January,   1005. 

Judge  Troutt  was  initiated  in  Ophir  Lodge, 
No.  171,  I.  O.  ().  F.,  in  1879,  and  soon  became 
Noble  Grand.  He  also  passed  the  chairs  of 
Oriental  Encampment,  and  then  joined  the  Pa- 
triarchs Militant.  He  was  degree  master  of 
Excelsior  Lodge  No.  2  for  several  terms,  re- 
signing on  account  of  illness.  He  was  chosen 
by  the  delegates  of  the  general  relief  commit- 
tee as  president  of  that  admirable  body.  He 
assisted  in  the  organization  of  "The  Odd  Fel- 
lows' Literary  and  Social  Club,"  and  was  its 
third  president,  tlie  late  Walter  B.  Lyon  having 
been  its  first  president.  He  and  his  wife  are 
members  of  Templar  Rebekah  Lodge. 

In  i8g6  he  became  associated  with  the  Ma- 
sonic   Fraternitv    on    the    recommendation    of 


Reuben  H.  I.ldycl,  and  in  Deccnilier,  i8g8.  he 
was  elected  Worshipful  Master  of  Oriental 
Lodge  No.  144,  F.  and  A.  M.,  and  is  now  Past 
Master.  He  holds  the  office  of  '"King"  of 
San  Francisco  Chapter  of  Royal  Arch  Masons, 
and  is  now  I^asl  High  Priest.  He  is  a  Knisrhl 
Temijlar  of  California  Commanderv,  and  a 
Mystic  Shriner  of  Islam  1  emple.  and  also  a 
Scottish  Rite  Mason,  having  received  thirty 
degrees.  Wv  has  passed  tlie  eh;iii"s  of  I'idelity 
Lod<?e.  A.  O.   r.  W. 

Judge  Trout  I  possesses  the  most  generous 
and  |)]tilanlliropic  nature  .'ind  \\n-  ino^t  cordi.al 
manners,  and  the  circle  of  his  dexoted  friends 
is  very  large  in  the  great  cit_\'  which  In-  ha>< 
known  .almost  from  its  infancy.  ;uid  almosi 
from  his  own  infanc\'.  I  lis  heart  heats  tor 
his  kind,  and  if  he  had  the  dispensing  of  haj)- 
piness,   he    would    make    it    universal,   and    hu- 


man experience  would  be  all  exempt  from  ill. 
The   Judge   was   married   at   San    Francisco, 
.\pril  29,  1890.  to  Miss  Lu  May  Kendall.  They 
have  no  child. 

The  decision  of  Judge  Troutt  in  the  matter 
of  the  application  of  Mrs.  Craven  for  a  family 
allowance  out  of  the  estate  of  James  G.  Fair 
was  rendered  on  the  loth  of  August,  1900.  The 
petitioner,  as  Nettie  R.  Fair,  made  her  applica- 
tion in  April.  1899,  praying  for  an  order  of 
court  directing  that  the  sum  of  five  thousand 
dollars  i)er  month  be  paid  out  of  the  estate  to 
her  as  the  widow  of  deceased.  The  petition 
was  ()])posed  by  the  executors  and  heirs,  on 
the  principal  ground  that  petitioner  was  not 
the  widow  of  the  deceased,  Jndge  Troutt 
found  that  she  was  not  such  widow,  and  de- 
nied her  application.  We  give  in  full  the 
carefidly  prepared  syllabus  of  the  Judge's  writ- 
ten opinion  in  this  matter,  which  is  of  de- 
cided interest,  and  should  be  read  in  con- 
nection with  the  article  on  the  Fair  trust  and 
will  case,  on  pages  .^,^5-3-)5  of  this  History.  It 
is  as  follows  : 

1.  Petitioner  claimed  to  have  entered  into 
a  contract  of  marriage  with  Senator  Fair  on 
May  2;^.  1892,  and  ])roduced  a  writing  read- 
ing : 

"San  Francisco,  Cal,.  May  2^,  1892. 
"I   take    Nettie   R.   Craven   to  be   my   lawful 

wife.  "J.\MES   G.    F.MR. 

"I  take  for  my  l.iwfid  husband  James  G. 
Fair.  "Nicttik   R.   Cr.wen." 

2.  This  writiu"  if  gniiiiiw,  merely  con- 
stituted a  formal  consent  to  become  husband 
and  wife;  hence  the  story  of  its  strange  ex- 
perience need  not  be  told.  No  wedding  ring, 
or  present,  was  given  to  petitioner.  On  June 
isi,  following  the  contract,  she  left  for  the 
East  ;  he  did  not  go  to  the  boat  or  train  to 
say  good-bye ;  and  she  occupied  a  lower  berth 
in  a  Pullman  sleeper. 

3.  No  license  permitting  a  m.arriage  was 
ever  proctuxd.  Nor  was  the  marriage  ever 
solemnized  in  pursuance  of  Sections  55,  68. 
70,  71,  72,  73  and  74,  Civil  Code,  unless  cer- 
tain evidence  introduced  by  her  establishes 
that  a  marriage  ceremony  was  performed  at 
Sausalito,  Marin  county,  California,  in  July 
or  AuiTust.  1802,  by  a  Justice  of  the  Peace. 
n.inied    Simpton. 

4.  .Although  pi'iiiioner  s.ivs  th.it  she  and 
.Senator  F;n'r  went  to  Sausalito  to  be  married 
by  a  Justice  of  the  Peace,  in  July  or  .Vugust, 
i8()2,  l)ecause  the  .Senator  desired  to  satisfy  and 
placate  petitioner's  daughter:  yet  it  ajipcars 
that  in  January,  l8()3,  when  her  daughter  vis- 
ited San  Francisco  and  met  the  Senator  nolh- 
inir  w;is  ever  said  to  her  daughter  by  Senator 
h'air  from  which  any  inference  could  be  drawn 
ih.it  ;inv  marriage  had  been  solenmized  be- 
tween her  mother  and  himself  by  any  Justice 
of  the  Peace, 


754 


History  of  the  Bench  and  Bar  of  California. 


5.  During  a  period  of  seven  years  succeed- 
ing this  Sausalito  episode,  and  until  after  her 
petition  was  filed  herein,  she  made  no  attempt 
to  obtain  any  information  respecting  tlie  name 
or  the  reeurds  of  the  Justice  of  the  Peace  who 
solemnized  her  marriage  to  the  Senator ;  but 
in  July  or  August,  1899,  through  Louis  F. 
Dunand,  she  secured  the  services  of  Adolph 
Sylva  to  look  up  the  record  of  her  marriage 
by  a  Justice  of  the  Peace  of  Sausalito.  One 
of  her  attorneys  gave  her  $200  to  pay  Sylva 
as  a  retainer  if  she  thought  best ;  she  paid  it  to 
Dunand  and  he  paid  it  to  Sylva ;  and  on  a 
second  trip  to  Sausalito  in  July  or  August, 
1899.  Sylva  brought  Simpton  to  her,  and  he 
addressed  her  as  "Mrs.  Fair."  She  says  she 
did  not  agree  to  pay  Sylva  anything  besides 
the  $200,  or  to  pay  Simpton  anything ;  but  she 
made  a  written  contract  with  Dunand  to  pay 
him  $30,000  for  any  services  that  she  might 
want  him  to  perform  anywhere  and  in  any 
matter. 

6.  The  court  does  not  hesitate  to  declare 
the  story  of  the  Sausalito  ceremony  to  be  a 
most  improbal)lc  and  incredible  one.  To  es- 
tablish it  to  be  a  fabrication,  needs  not  the 
contradiction  of  Justice  Simpton,  nor  the  e.x- 
planations  of  Dunand   or   Sylva. 

7.  Marriage  is  defined  by  Section  55,  of 
our  Civil  Code,  to  be  a  personal  relation  aris- 
ing out  of  a  civil  contract,  to  which  the  con- 
sent of  parties  capable  of  making  it  is  necessary. 
Consent  alone  will  not  constitute  marriage ;  it 
must  be  followed  by  a  solemnization,  or  by  a 
mutual  assumption  of  marital  rights,  duties  or 
obligations. 

8.  They  did  not  live  together,  they  did  not 
have  a  common  home,  or  a  common  name. 
She  was  never  addressed  otherwise  than  as 
"Mrs.    Craven." 

9.  Petitioner,  after  Senator  Fair's  death, 
produced  a  "will,"  written  in  lead  pencil,  which 
she  testified  Senator  Fair  wrote  and  delivered 
to  her  in  her  house,  in  her  presence,  on  Sep- 
tember 24,  1894,  in  which  she  was  not  men- 
tioned; and  she  also  produced  two  "deeds" 
of  valuable  property,  which  she  also  testified 
that  Senator  Fair  gave  to  her  for  her  support, 
on  the  same  day  that  he  wrote  his  will  in 
lead  pencil  in  her  house,  the  income  of  which 
was  $d.ooo  per  month ;  these  deeds  were  not 
then  acknowledged,  she  returned  them  to  him 
to  be  acknowledged,  and  he  returned  them  to 
her  again  duly  acknowledged,  in  December, 
1894. 

ID.  This  pencil  zc;//  and  these  deeds  were 
attacked  by  respondents  and  considerable  evi- 
dence offered  to  prove  that  they  were  forger- 
ies. 

II.  Theodore  .\ytka.  one  of  the  expert  wit- 
nesses, aptly  and  admirably  demonstrated  in 
this  proceeding  the  facility  with  which  a  per- 
son's handwriting  may  be  simulated.  He  placed 
a  genuine  writing  upon  glass  which  had  been 
substituted  for  the  cover  of  a  box,  putting  a 
lighted  candle  within  the  box  and  beneath 
the  glass.  A  sheet  of  paper  was  placed  upon 
tlie  genuine  writing  and  the  letters  could  be 
distinctly  seen  and  could  be  easily  traced ; 
and  he  wrote  words,  which  w^ere  dictated  to 
liim,  by  tracing  letters,   and   sometimes   whole 


words,  that  were  in  the  genuine  writing.  This 
was  called  the  "Transparency  Tracing 
Method."  This  sanie  expert,  by  the  use  of  a 
gelatine-celluloid  sheet,  so  called,  traced  va- 
rious words  written  in  certain  lines  of  this 
will  and  placed  them  over  the  same  words 
in  other  lines  of  the  will,  and  the  letters  su- 
perposed— they  occupied  exactly  the  same 
space,  were  exactly  the  same  length,  and  ex- 
actly the  same  distance  and  the  same  peculiar 
correspondence    with    each    other   existed. 

12.  The  court  is  convinced  beyond  all  doubt 
that  the  pcneil  zvill  and  the  deeds  were  not 
written  or  signed  or  delivered  by  Senator  Fair, 
but  that  they  are  forgeries. 

13.  Senator  Fair  died  December  28,  1894: 
the  next  morning  the  petitioner  read  in  one  of 
the  newspapers  a  statement  from  his  last  will 
dated  September  21,  1894.  wherein  he  declared 
that  he  was  not  married ;  yet  she  never  as- 
serted that  she  was  his  widow  until  June  25, 
1896,  when  questioned  on  the  subject  as  a 
witness  before  the  court. 

14.  Under  the  law  of  California,  where 
there  is  no  solemnization  there  is  no  assump- 
tion of  marital  rights,  duties  or  obligations, 
until  the  commencement  of  cohabitation ;  and 
by  "cohabitation"  is  not  meant  simply  the  grat- 
ification of  the  sexual  passion,  but  "to  live 
or  dwell  together,  to  have  the  same  habita- 
tion, so  that  where  one  lives  and  dwells  there 
does  the  other  live  and  dwell  also"  (Yardley's 
Estate,  75  Pa.  St.  207 ;  Sharon  vs.  Sharon, 
79  Cal.,  670)  ;  a  mere  introduction  of  a  woman 
as  a  wife  is  not  sufficient  to  prove  a  marriage 
where  there  is  no  proof  of  a  present  contract 
of  marriage,  and  that  the  parties  lived  or 
dwelt  together  in  the  same  habitation :  and  a 
mere  stopping  together  as  transient  guests  at 
an  hotel  during  a  short  journey  does  not  make 
the  parties  habitants  of  the  hotel  or  prove  co- 
habitation. 

15.  Other  cases  bearing  upon  this  question 
are:  White  vs.  White,  82  Cal.,  427;  Hinckley 
vs.  Ayres.  105  Cal.,  357 ;  Hite  vs.  Hite,  124 
Cal..  389;  Harron  vs.  Harron,  60  Pacific  Re- 
porter, 932. 

16.  The  petitioner  never  became  the  wife, 
and  she  is  not  the  widow  of  James  G.  Fair, 
deceased.        

EDWIN  P.  UNANGST. 
Edwin  P.  Unangst,  Judge  of  the  Superior 
Court  of  San  Luis  Obispo  county,  was  born 
in  Warren  county.  New  Jersey,  January  2, 
1858.  His  parents,  Jacob  S.  and  Sarah,  were 
both  descendants  of  German  families,  for  many 
years  living  m  the  eastern  part  of  Pennsylva- 
nia. Judge  Unangst  lived  with  his  parents 
in  New  Jersey  until  fourteen  years  of  age, 
when  the  whole  family  removed  to  Nebraska 
and  settled  near  Lincoln.  His  parents'  means 
were  extremely  limited.  He  attended  the  pub- 
lic schools,  and  on  January  4,  1875,  entered 
the  preparatory  school  of  the  State  University, 
at  the  beginning  of  the  winter  term.  After 
completing  the  two  years'   course  in  the  pre- 


I 


History  of  the  Bench  and  Bar  of  California. 


755 


paratory  school,  and  a  four  years'  classical 
course  in  the  university,  he  was  graduated, 
June.  1881.  with  the  title  of  A.  B.  He  sup- 
ported himself  by  teaching  and  labor  during 
vacations,  and  remaining  out  of  college  one 
year  to  teach.  After  graduating,  he  was  prin- 
cipal of  the  public  schools  of  Geneva,  Ne- 
braska. This  position  he  resigned  in  March, 
1882,  and  went  to  Utah  and  engaged  in  rail- 
road surveying  in  the  Wasatch  Mountains, 
north  of  Ogden.  He  remained  with  the  sur- 
veying party  for  a  little  over  a  year,  and  then 
came  to  California  in  the  summer  of  1883.  He 
entered  the  junior  class  of  Hastings  College 
of  the  Law  at  San  Francisco  as  a  non-resident 
student  in  the  same  year,  and  having  com- 
pleted the  courses  of  the  junior  and  middle 
classes,  was  admitted  to  the  senior  class  of 
1885-86.  He  was  admitted  to  practice  upon 
examination  before  the  Supreme  Court  at  San 


Francisco,  February  i,  1886,  and  located  at 
San  Luis  Obispo,  in  June,  1886.  In  1887  there 
was  formed  the  law  firm  of  Earll,  Unangst  & 
Earll,  with  Hon.  Warner  Earll,  ex-Justice  of 
the  Supreme  Court  of  Nevada,  and  his  son, 
A.  R.  Earll.  This  firm  was  dissolved  by  the 
death  of  Judge  Earll,  and  the  election  of 
A.  R.  Earll  to  the  office  of  district  attorney 
of  San  Luis  Obispo  county  in  the  year  1888. 
Judge  Unangst  continued  law  practice  alone 
till  he  formed  a  partnership  with  G.  Ward 
Kemp  (now  of  Seattle),  in  June  1895,  which 
partnership  was  dissolved  upon  the  election 
of  Judge  Unangst  to  his  present  office  of  Su- 
l)eri()r  Judge  in  November,  i8g6. 

The  Judge  was  a  member  of  the  bo.ud  of 
trustees  of  the  city  of  San  Luis  (Jbispo  from 
January,  1894,  till  his  election  as  Judge  of  the 
Superior   Court,   when   he  resigned  from  that 


board.  He  was  President  of  the  board  of  trus- 
tees from  April,  1894,  till  his  resignation.  On 
February  27,  1889,  the  Judge  was  married  to 
Anita  Murray,  daughter  of  Walter  Murray,  a 
member  of  Stevenson's  Regiment,  who  was  one 
of  the  pioneer  attorneys  of  San  Luis  Obispo 
county,  and  Judge  of  the  District  Court  of 
the  -First  Judicial  district  of  California,  em- 
bracing the  counties  of  San  Luis  Obispo,  Santa 
Barbara  and  Ventura,  at  the  time  of  his  death 
in  1875. 

Judge  Unangst  ran  for  the  office  of  Superior 
Judge  at  the  election  of  1896  against  Hon.  V. 
A.  Gregg,  the  then  incumbent,  and  William 
Shipsey,  Gregg  receiving  1134  votes,  Shipsey 
1 121,  and  Unangst  1414.  His  office  has  been 
a  busy  one.  The  county  embraces  the  large 
area  of  3500  square  miles,  and  has  a  popula- 
tion of  some  17,000  people.  The  interests  in 
the  count}^  are  diversified,  giving  rise  to  al- 
most every  class  of  litigation.  During  the 
period  of  little  over  three  and  a  half  years  of 
incumbency,  the  Register  of  Actions  shows 
that  there  have  been  commenced  in  civil  and 
criminal  cases  and  probate  matters,  something 
over  HOC  cases. 

The  Judge  is  on  the  Democratic  side  in 
politics. 


WILLL\M  C.  VAN  FLEET. 

William  Cary  Van  Fleet,  a  Justice  of  the 
State  Supreme  Court  from  April,  1894,  until 
January,  1899,  was  born  in  Ohio,  March  24, 
1852,  the  son  of  a  farmer  who  had  removed 
from  his  native  state,  Pennsylvania.  He  was 
educated  in  his  native  village,  Monclova,  and 
in  Toledo,  Ohio,  and  coming  early  in  life  to 
California,  located  at  Sacramento  and  studied 
law.  He  was  admitted  to  the  bar  of  the  Su- 
preme Court  at  the  age  of  twenty-one,  April 
15.  1873.  He  was  a  member  of  the  assembly 
at  the  twenty-fourth  session,  1881,  and  a  State 
prison    director,    1883-84. 

Judge  Van  Fleet,  who  has  always  been  of 
Rei)ublican  politics,  was  elected  Judge  of  the 
Sui)erior  Court  of  Sacramento,  first,  in  the 
fall  of  1884.  He  served  a  full  term,  and  was 
re-elected  without  opposition  in  1890.  He 
resigned  the  oflice  in  1892,  Noveml)er  7.  and 
removed  in  llu'  same  month  to  San  Fran- 
cisco. 

On  \\)y'\\  25,  1894,  Governor  Markham  aji- 
puinted  Judge  Van  Fleet  a  Justice  of  the  Su- 
lircnie  Court,  in  place  of  Judge  Paterson,  re- 
signed. At  the  next  election,  November,  1894, 
the  Judge  was  chosen  to  fill  out  the  unexpired 


756 


History  of  the  Bench  and  Bar  of  California. 


term  of  four  years.  At  the  election  in  Novem- 
l)er,  1898.  he  was  again  one  of  the  two  Re- 
pubhcaii  nominees  for  Supreme  Judge.  His 
party  ticket  was  successful,  but  Judge  Van 
I'lect  was  defeated  by  a  small  majority,  owing 
to  a  misconception  in  the  minds  of  many  per- 
sons of  the  doctrine  of  a  decision  of  the  Su- 
preme Court  in  the  case  of  Fox  vs.  Oak- 
land Street  Railway  Company.  ilB  Cal.  55- 
This  was  an  action  f..r  damages  for  the  loss 
,,f  a  child  (four  and  a  half  years  old)  of  a 
lal)oring  man.  ihe  child  having  been  acci- 
denlallv  killed  by  a  street  railroad  car.  The 
ophiion  was  written  by  Judge  Van  Fleet,  and 
some  of  the  language  employed  to  state  the 
doctrine  relied  on  was  excepted  to  by  a  few 
newspapers  as  making  a  distinction  between 
the  rich  and  the  poor  in  the  administration  of 
justice.  Quite  naturally,  a  man  in  the  hum- 
bler walks  of  life,  uninformed  in  legal  science, 
might  see  in  this  decision  as  thus  interpreted 
by'the  newspapers,  a  discrimination  against 
liis  class,  but  every  lawyer  who  read  it  must 
have  acceined  it  as  sound  in  law  and  su.stained 
by  judicial  authority,  iinl)roken  through  cen- 
turies, and  as  being  susceptible  of  no  such 
construction  as  that   sought  to  be  put  upon  U. 

It  is  very  proper  to  place  on  record  in  this 
History  the  languae-e  used  by  Judge  Van 
Fleet  in  this  case,  to  which  exception  was 
taken  and  which  so  unexpectedly  operated  Jo 
lerminale  his  distinguished  career  on  the  Su- 
])reme  bench. 

The  question  under  discussion  was  tlial  of 
excessive  damages,  and  among  other  ihmgs, 
not   i)ertinent   liere,   it    \va^  said: 

■■There  was  no  averment  or  evidence  of  pe- 
culiar or  special  damages,  nor  the  right  to 
exemplary  or  punitive  damages,  the  plaintiff's 
cause  of  action  resting  soley  upon  his  right  to 
recover  for  the  loss  of  the  services  of  his 
child  resulting  from  its  death. 

"The  jury  were  properly  instructed  that  they 
could  .award  nothing  in  the  way  of  penalty 
for  his  death,  nor  for  sorrow  or  grief  of  his 
jjarents.  but  must  confine  their  verdict  to  an 
amount  which  would  justly  compensate  plain- 
tiff for  the  probable  value  of  the  services  of 
the  deceased  until  he  had  attained  his  ma- 
jority, taking  into  consideration  the  cost  of 
his  s'upport  and  maintenance  during  the  early 
and  helpless  part  of  his  life;  that  while  they 
could  consider  the  fact  that  plaintiff  had  been 
deprived  of  the  comfort,  society,  and  protec- 
tion of  his  son.  this  consideration  could  only 
go  to  affect  the  pecuniary  value  of  his  serv- 
ices to  plaintiff. 

"Upon  the  evidence  ;ind  these  instructions 
the  jury  gave  a  verdict  for  six  tbousaud  dol- 
lars. 

■•\Ve   think    it   (|uite   manifest,   upon    its    face. 


that  the  verdict  was  actuated  by  something 
other  than  a  consideration  of  the  evidence. 
Under  no  conceivable  method  or  rule  of  com- 
pensation permissible  under  the  evidence  could 
such  a  result  have  been  attained.  There  was 
nothing  to  indicate  that  the  value  of  the  child's 
services  would  have  been  greater  than  that  of 
the  ordinary  boy  of  his  age,  assuming  that 
such  a  fact  would  have  been  pertinent.  He 
was  a  mere  infant,  and  for  many  years  at  best, 
under  ordinary  conditions — and  it  is  by  such 
we  must  judge — he  would  have  remained, 
however  dear  to  their  hearts,  a  subject  of  ex- 
l)ense  and  outlay  to  his  parents,  without  the 
ability  to  render  pecuniary  return.  And  com- 
mon experience  teaches  further  that,  even 
after  reaching  an  age  of  some  usefulness,  he 
yet  would  continue  for  the  better  part  of  his 
remaining  years  of  minority  more  a  source 
of   outgo   than   of   income.     .     .     . 

"But  assuming  that  the  deceased  would  have 
been  set  to  useful  and  valuable  employment 
of  some  appropriate  character  as  early  as  ten 
years  of  age.  which  is  unusual,  at  no  average 
rate  of  wages  or  income  which  he  could  rea- 
sonably have  earned,  would  it  be  at  all  prob- 
able that  in  the  time  intervening  his  majorit}' 
he  could  have  earned,  over  and  above  the  cost 
and  expense  of  his  maintenance,  the  very  large 
sum  given  by  the  verdict? 

"Under  the  circumstances  of  the  case  it  is 
solely  by  the  probabilities  that  these  things 
can  be  estimated.  And  while  in  no  sense 
conclusive,  we  have  the  right,  and  it  is  most 
reasonable  in  judging  of  the  probable  char- 
acter of  occupation  the  deceased  would  have 
pursued,  to  regard,  with  the  other  circum- 
stances surrounding  him.  the  calling  of  his 
father — since  experience  teaches  that  children 
do  very  frequently  pursue  the  same  general 
class  of  business  as  that  of  their  parents. 
(JValtcrs  V.  Chicat^o,  etc..  R.  R.  Co..  41  Towa. 
71.  7.3-)" 

L'pon  his  retirement  from  the  Supreme 
Bench  at  the  opening  of  the  year  iSgq.  Judge 
Van  Fleet  resumed  practice  at  San  Francisco 
with  E.  B.  and  Geo.  H.  Mastick.  In  August, 
i8gg,  upon  his  return  from  a  short  trip  abroad. 
Judge  Van  Fleet  was  appointed  by  Governor 
Gage  a  member  of  the  commission  for  the 
revision  and  reform  of  the  law.  wliich  office 
he    now    liolds. 

In  Ai)ri!.  1S77,  ;it  Sacramento.  Judge  Van 
I'^leet  was  united  in  marriage  with  Miss  Isa- 
bella Carey,  daughter  of  R.  S.  Carey,  an  old 
and  influential  citizen  of  that  i)lace.  of  Dem- 
ocr.ntic  ])olitics.  Mrs.  Van  Fleet  died  at  Sac- 
ramento in  February.  1878.  leaving  an  infant 
son. 

In  January.  1887.  Jii<lge  Van  Fleet  married 
Flizabeth.  the  second  d:ingliter  of  the  late 
Clark  W.  Crocker.  ;i  brother  of  Charles 
Crocker,  and  one  of  the  firm  of  Sisson,  Wal- 
lace &  Crocker.  By  this  marriage  Judge  \'an 
Fleet   has   three   sons   and  a   daughter. 


« 


I 


History  of  the  Bench  and  Bar  of  California. 


tDt 


W.   B.   WALLACE. 

W.  B.  Wallace  was  l)orn  in  Platte  City,  Mis- 
souri, on  May  i,  1849.  His  father  was  a  phy- 
sician, a  native  of  Virginia,  and  with  his  fam- 
ily came  to  California,  crossing  the  plains 
in  the  year  of  his  son's  birth.  They  first  set- 
tled at  Placerville  in  the  fall  of  that  year. 
The  father  died  there  in  1850,  and  in  1859  the 
mother  also  died.  Ihe  son.  a  hoy  of  ten 
years,  was  then  thrown  on  his  own  resources 
to  make  his  way  through  the  world.  Fortu- 
nately he  inherited  a  tendency  to  intellectual 
pursuits  and  the  society  of  good  people ;  and 
to  heredity  much  more  than  td  environment 
he  owes  his  success.  He  had  to  conquer  en- 
vironment, or.  rather,  to  create  a  new  and 
wholesome  environment  out  of  variegated  sm"- 
roundings. 

His  early  years  were  passed  in  the  mining- 
regions.  He  received  a  common  school  edu- 
cation with  some  special  training  in  the  higher 
branches.  At  the  age  of  eighteen  he  com- 
menced teaching  school,  which  pursuit  he  fol- 
lowed for  some  years.  During  this  period 
he  devoted  his  snare  time  In  reading  law. 
In  1875  he  removed  to  Tulare  county,  where 
he  has  since  resided.  He  was  admitted  to  the 
bar  and  commenced  the  practice  of  law  in 
Visalia.  in  1881.  During  the  years  1885  and 
1886  he  was  district  attorney  of  that  county. 
He  built  up  a  successful  and  quite  an  exten- 
sive practice  in  the  State  and  Federal  Courts 
and  the  United  States  land  office  of  his  dis- 
trict. He  has  conducted  many  cases  in  the 
Circuit  Court,  and  has  appeared  in  the  Circuit 
Court  of  Appeals  and  the  Supreme  Court  of 
the  United  States. 

In  1898  Judge  Wallace  was  elected  Superior 
Judge  of  Tulare  comity  for  a  term  of  six  years. 

His  family  consists  of  a  wife  and  three  chil- 
dren. 


J.    M.    WALLINC;. 

J.  M.  Walling,  a  resident  of  Xev;ul;i  City, 
California,  was  horn  in  1841.  in  .Scolt  count}-. 
Iowa,  where  he  resided  until  he  was  twenty- 
years  of  age.  He  received  only  a  limited  edu- 
cation (being  an  orphan  from  an  early  age) 
in  the  district  schools.  Upon  the  breaking 
out  of  the  Rebellion,  he  enlisted  for  three 
years  as  a  i)rivate  in  Company  .A.  Eighth  Iowa 
Infantry,  the  company  being  organized  in 
Clinton  county.  Iowa.  On  Jamiary  ist.  1864, 
he  re-enlisted  with  his  regiment,  as  a  veteran 
volunteer.  Thereafter  he  was  commissioned 
as  first  lieutenant,  and  was  finally  discharged 
en   December  ,^oth,    1865,   and  returned  to  his 


home.  He  participated  in  all  actions  where 
his  commands  were  engaged.  -He  was  cap- 
tured at  the  battle  of  Shiloh  in  1862,  and  de- 
tained a  prisoner  for  more  than  six  months, 
after  which  he  was  paroled,  then  exchanged 
and  returned  to  duly  in  the  army.  He  served 
imder  Grant,  Sherman  and  Canby.  On  March 
1st,  1866,  he  sailed  from  New  York  for  Cali- 
fornia, where  he  arrived  on  the  23d  of  the 
month,  and  joined  his  father.  L.  A.  Walling, 
at  Rough  and  Ready,  Nevada  county.  He 
resided  at  Roitgh  and  Ready  until  1872,  when, 
having  been  elected  county  recorder,  he  re- 
moved to  Nevada  City.  It  was  at  this  time 
that  he  conimenced  the  study  oi  the  law. 
During  the  years  1874.  iB75  and  a  portion  of 
1876.  he  was  justice  of  the  peace  for  Nevada 
City.  In  June.  1876.  he  was  duly  admitted 
to  the  bar  by  the  Supreme  Court  of  Califor- 
nia, and  at  once  commenced  practice.  In  1884 
he  was  elected  Superior  Judge  of  Nevada 
county,  and  served  one  term  of  six  years, 
voluntarily  returning  to  the  practice  at  the 
end  of  the  term. 

Judge  Walling  is  a  member  of  the  G.  .\.  R., 
and  a  Past  Department  Commander  of  the 
Department  of  California  and  Nevada.  He 
is  a  thorough  temperance  man.  and  filled  the 
office  of  Grand  Chief  Templar,  of  California. 
for  three  terms.  In  this  connection  the  fol- 
lowing from  the  Mrircil  Il'crkly  will  be  op- 
pro])riate  : 

"Sacramento  is  to  be  congratulated  on  even 
the  temporary  assignment  of  Judge  Walling  to 
that  court,  if  the  following  from  the  tele- 
gra])hic  news  of  one  day  last  week  correctly 
rei^orts  a  proceeding  had  there: 

" 'S.\CK.\MENTo,  June  19. 

'■■Judge  J.  M.  Walling.  wln)  is  presiding  in 
Judge  Armstrong's  court,  certainly  has  the 
courage  of  his  convictions.  He  is  a  temperance 
man.  an  advocate  of  temperance  principles,  and 
he  don't  care  who  knows  it.  Yesterday  a 
(lerman  came  up  before  him  as  an  applicant 
for  citizenship.  The  man  admitted  that  he  did 
not  know  who  is  Governor  of  California,  and 
in  reply  to  a  rpierv  as  to  who  is  President  rc- 
l.lled: 

■■\'ell.    I    dink    it    is    Harrison." 

'■Do  yon  know  who  m;d<es  our  l.-iws?"'  in- 
(linred   the  Judge, 

"I  dinks  it  vas  State  oOicers.'"  was  the  ri'idy 

■■What   is  your  business?" 

■■|    ;nn   a  .saloon-keei)er." 

■■|)o  you  belong  to  an  oriiani/ation  known 
as    llie    Le;igue  of    I-'reedoni '■'" 

■■Yes." 

■■|s  it  not  one  of  llu-  obiects  of  that  org;ui- 
ization  to  fight  ;ill  l;iws  dislasteful  to  s-iloon- 
keeners?" 

■■\'es.  if  ilu'  l.-iws  do  not  suit  'cm."  w;is  the 
rei)lv. 


758 


History  of  the  Bench  and  Bar  of  California. 


"Well;'  said  the  Judge,  "I  guess  I  will  not 
admit  you  to  citizenship."     And  he  didn't. 

"We  do  not  know  where  Judge  VValhng 
hails  from,— what  county  has  honored  itself 
and  the  State  by  placing  him  on  the  bench,— 
neither  do  we  know  what  political  party  he 
affiliates  with,  but  we  do  know  that  he  is  made 
of  the  timber  that  we  would  like  to  see  worked 
up  to  the  bench  of  California,  wherever  it  is  to 
be  found.  When  a  man  openly  boasts  of  his 
membership  in  an  organization  whose  object 
is  the  nullification  of  all  laws  enacted  for  the 
preservation  of  good  order  and  public  morals, 
that  man  is  not  fit  to  be  a  citizen  and  exercise 
the  high  and  dignified  right  of  suffrage.  If 
we  had  more  Wallings  on  the  bench,  and  more 
safeguards  thrown  around  the  sacred  right  of 
American  citizenship,  it  would  not  be  found 
so  hard  to  enforce  good  and  wholesome  laws." 

For  many  years  Judge  Walling  has  been  one 
of  the  board  of  trustees  of  the  Good  Templars' 
Home  for  Orphans,  at  Vallejo.  He  is  also 
connected  with  the  I.  O.  O.  F.,  O.  C.  F.,  A. 
L.  of  H..  and  other  fraternal  societies.  He 
was  married  on  May  I2th,  1872,  to  Miss  C.  E. 
Snell,  a  native  daughter  of  California.  They 
have  six  children  living,  four  boys  and  two 
girls.  He  is  a  man  of  strong  principles  and  a 
Republican  in  politics.  He  has  very  many 
warm  friends  throughout  the  State.  It  has 
been  well  observed  that,  "Aside  from  the  credit 
due  him  for  the  able  and  conscientious  fulfill- 
ment of  every  public  trust,  and  for  private 
acts  of  a  worthy  nature,  he  is  also  entitled  to 
much  praise  for  the  efforts  he  has  made  to 
improve  his  intellectual  faculties,  and  which 
efforts  have  fitted  him  for  the  forum  and  the 
platform."  Mining  law  has  received  his  spe- 
cial atention,  both  on  and  off  the  bench,  that 
industry  being  dominant  in  the  section  where 
he  resides. 


T.  H.  WELLS. 


T.  H.  Wells,  the  worthy  recorder  of  Santa 
Monica,  came  from  his  native  State,  Mis- 
souri, across  the  plains  to  California  in  1849. 
He  was  one  of  a  company  of  forty-four  and 
arrived  at  the  mines  on  main  Feather  River, 
November  12,  1849.  In  1852  he  was  elected 
a  member  of  the  assembly  from  Butte  county. 
He  had  contracted  chills  and  fever,  but  his 
good  political  fortune  suddenly  made  him  a 
well  man.  The  legislature  opened  in  Janu- 
ary. 1853,  and  Judge  Wells  has  many  reminis- 
cences of  that  day  and  body.  He  thinks  the 
legislature  at  that  session  was  the  ablest  that 
ever  met  in  California.  He  especially  remem- 
bers the  speaker,  Hon.  Isaac  B.  Wall,  as  a 
talented,  careful  and  scrupulously  honest  man. 


Soon  after  the  close  of  the  session  the  speaker, 
Wall,  was  foully  murdered,  being  lassoed 
and  dragged  to  death.  The  survivors  of  that 
legislative  body  besides  Judge  Wells,  are  Judge 
Chas.  F.  Lott,  Orovillc;  Judge  Walter  Van 
Dyke,  Supreme  Court;  Judge  B.  F.  Myers, 
Auburn ;  and  Colonel  Chas.  C.  Thomas,  Los 
Angeles. 

Judge  Wells  was  elected  to  the  assembly 
again  for  the  session  of  1855.  To  go  back  a 
little  our  friend  was  elected  justice  of  the 
peace  of  Ophir  township,  Butte  county,  in 
February,  1852.  It  transpired  that  had  he  not 
been  too  modest  to  vote  for  himself,  his  elec- 
tion would  have  been  unanimous. 

Judge  Wells  is  a  man  of  considerable  hu- 
mor, and  talks  very  entertainingly  of  his  ex- 
periences on  the  "bench."  "I  never  looked  into 
a  law  book,"  he  has  told  us,  "with  the  pur- 
pose of  becoming  lawyer  or  Judge,  until  in 
May,  1852. 

"In  due  time  I  qualified,  as  the  phrase  goes, 
received  my  official  docket  and  statutes, 
mounted  my  bench,  a  tri-legged  stool,  and  had 
the  constable  proclaim  the  court  duly  inaug- 
urated and  ready  for  business,  not  omitting  to 
shout,  'Let  there  be  peace,  good  will  and  or- 
der in  the  village.'  There  was;  my  consta- 
ble had  whole  bags  of  sand! 

"But  upon  trying  to  try  my  first  case — a  realty 
action,  title  to  a  valuable  placer  mining  claim 
(which  the  statutes  then  permitted  Justice's 
Courts  to  try),  I  found  that  I  lacked  several 
points  of  being  qualified  to  act  in  this  judicial 
forum  even.  I  had  formally  indulged  the 
hope  that  one  of  the  parties  would  call  for  a 
jurj' — illusive  hope!  Nary  a  party  made  any 
such  call,  but  meekly  remarked  that  it  was  not 
a  case  that  any  jury  could  so  easily  decide 
without  error  as  could  the  court.  Gee  whiz ! 
It  at  once  dawned  upon  my  judicial  mind  that 
I,  myself,  alone,  unaided  by  precedent  or  ex- 
perience, would  have  to  say,  declare  and  de- 
cree that  the  valuable  mining  claim  in  action 
was  the  property  of  one  of  the  parties,  and 
not  the  property  of  the  other.  But  the  wit- 
nesses testified,  the  disciples  of  Blackstone, 
Kent  and  Chitty  spread  their  eagles,  and  sub- 
mitted the  case.  Tlien,  in  order  to  appear 
judicial  as  well  as  careful,  I  'took  the  case 
under  advisement'  for  a  week,  and  then  an- 
nounced and  recorded  my  first  judicial  guess- 
ment.  The  guess  was  that  plaintiff  ought  to 
have  the  mine,  and  all  its  mineral  stores.  His 
attorney  said  it  was  right  and  would  stand  as 
a  judicial  guide  to  other  courts  of  less  dis- 
cernment.     The    attorney    for    the    defendant 


History  of  the  Bench  and  Bar  of  California. 


<o'.) 


said  he  guessed  that  I  had  decided  right ;  and 
I  replied  that  his  guess  exactly  corresponded 
with  mine.  The  sequel  :  The  plaintiff  made 
his  fortune,  the  defendant  made — his  way  out 
of  the  country." 

Judge  Wells  was  associate  justice  of  the 
Court  of  Sessions  of  Butte  county  from  May, 
1852.  to  the  close  of  that  year,  and  from 
October  i,  1853,  to  October  i,  1854. 

In  1854  he  was  deputy  county  clerk  and  jus- 
tice of  the  peace,  and  also  public  administrator. 
Not  the  least  engrossing  of  his  cares  at  this 
time  was  his  devotion  to  Blackstone.  In  June, 
1855.  he  was  admitted  to  the  bar  after  exam- 
ination in  open  court  by  Hon.  Wm.  P.  Dain- 
gerfield,   District  Judge. 

In  1855  he  w'as  the  nominee  of  the  Demo- 
cratic party  for  district  attorney  in  Butte,  and 
was  defeated  by  J.  J.  Klein,  Know  Nothing, 
by  thirty-nine   votes. 

In  1857  he  was  elected  as  County  Judge  and 
served  out  the  term  of  four  years.  He  was 
reversed  twice  by  the  Supreme  Court,  and 
freely  declares  that  he  would  probably  have 
been  reversed  oftener  if  more  appeals  had 
been  taken. 

In  1861  he  was  defeated  for  the  same  ofifice. 

In  May,  1864  he  located  at  Carson  City, 
Nevada  Territory.  Nevada  w-as  admitted  into 
the  Union  in  the  following  October,  and 
Judge  Wells  was  private  secretary  to  the  first 
Governor,  Henry  G.  Blasdel,  during  his  two 
terms,  which  extended  down  to  June  8,   1871. 

The  Judge  some  sixteen  years  later  was  pri- 
vate secretary  to  Governor  C.  C.  Stevenson, 
of  Nevada,  for  between  two  and  three  years. 
Governor  Stevenson  then  appointed  him  Dis- 
trict Judge,  which  ofifice  he  held  nearly  two 
years.  He  also  was  once  elected  a  presidential 
elector  in  Nevada,  and  once  a  member  of  the 
Board  of  Regents  of  the  State  University, 
and  became  president  of  the  board. 

Judge  Wells  left  Nevada  on  account  of  the 
failing  health  of  his  wife,  coming  back  to 
California,  and  settling  at  Santa  Monica  in 
July.  1892.  Mrs.  Wells  died  there  on  June 
22.  1899.  of  heart  disease. 

Judge  Wells,  in  the  evening  of  his  life,  is 
a  cheery-hearted  man  and  a  companionable 
friend,  being  at  once  witty  and  philosophical. 
He  has  arranged  his  great  volume  of  Califor- 
nia and  Nevada  reminiscences  for  publication. 
Just  as  we  write  this  of  him  (on  the  25th  of 
July,  1900),  his  old  friend,  that  good  man, 
Henry  G.  P>lasdel,  Nevada's  first  Governor, 
has  closed  at  Oakland,  Cal.,  his  life  of 
seventy-five    years.      We    have    a    melancholy 


interest  in  speaking  hi?  honored  name  right 
here.  A  year  ago,  Governor  Blasdel,  on  look- 
ing at  a  copy  of  our  "Eloquence  of  the  Far 
West,  No.  I — The  Masterpieces  of  E.  D.  Ba- 
ker," remarked,  "I  like  to  encourage  a  man 
for  work  of  this  kind." 


WALDO  M.  YORK. 


Waldo  M.  York,  a  Judge  of  the  Superior 
Court  of  Los  Angeles  county,  was  born  in  the 
state  of  Maine,  in  1846.  He  was  the  only  son 
of  David  P.  York,  a  thrifty  farmer  of  Dix- 
mont,  in  Penobscot  county.  His  mother's 
maiden  name  was  Sarah  Vinal.  His  grand- 
father York  was  a  Baptist  minister,  and  his 
grandfather  Vinal  was  a  sea  captain.  Two 
of  his  mother's  brothers  became  eminent  in 
their  professions,  one  as  a  doctor  in  Phila- 
delphia, and  the  other  as  a  Judge  in  Connecti- 
cut. Another  of  his  mother's  brothers  was 
distinguished  in  the  legislature  of  the  state  of 
Maine,  and  for  more  than  forty  years  was  a 
respected  public  servant.  His  mother  died  in 
January,  1890,  and  his  father  died  si.\  years 
later.  There  was  but  one  other  child  of  the 
marriage,  a  daughter,  the  wife  of  Albert  Mud- 
gett,  who  now  resides  with  her  husband  in 
Dixmont,  Maine. 

Judge  York  is  a  giant  in  physical  stature, 
being  about  six  feet  three  inches  in  height, 
and  weighing  about  two  hundred  and  thirty 
pounds.  But  from  his  infancy  until  he  was 
about  fourten  years  of  age,  it  is  said  that  his 
health  was  not  good,  and  that  his  develop- 
ment was  slow.  From  that  time  he  developed 
rapidly  both  physically  and  mentally.  His  care- 
ful and  temperate  life  is  no  doubt  the  cause 
of  his  present  physical  health.  He  was  edu- 
cated in  the  public  schools  and  in  private 
schools,  and  al  the  age  of  seventeen  years 
passed  a  successful  examination  for  a  cer- 
tificate to  teach  in  the  public  schools.  Fron> 
that  time  until  he  was  twenty-two  years  of 
age  he  was  occupied  in  teaching,  working  upon 
his  father's  farm  and  atti-nding  private  schools. 
.\t  the  age  of  twenty  he  was  principal  of  a 
higii  school.  .\l  the  age  of  twenty-two  he 
was  admitted  to  the  bar  in  the  Supreme  Court 
f)f  Maine,  and  inunediately  connnenced  the 
practice. 

In  the  spring  of  1871.  when  twenty-five  years 
of  age.  he  removed  to  Seattle,  in  the  then 
territory  of  Washington,  where  he  opened  an 
otTice  for  the  practice  of  the  law.  Here  he 
was  received  with  very  general  favor.  His 
(luiet  manner  and  kind  and  courteous  tempera- 


760 


History  of  the  Bench  and  Bar  of  California. 


mcnt,  his  studious  habits  and  clean  life,  and 
his  earnest  presence,  attracted  friends  and 
clients  on  every  hand.  Endowed  with  fine 
judgment,  and  willing  to  bide  his  time,  his 
novitiate  was  nevertheless  exceptionally  short, 
and  he  soon  found  himself  before  the  general 
eye  a  pillar  in  a  new  commonwealth.  In  1872, 
when  twenty-six  years  of  age,  and  after  a 
residence  of  only  one  year  at  Seattle,  he  was 
elected  Judge  of  the  Prol)ate  Court  of  King 
county,  of  which  Seattle  was  the  county  scat. 
This  office  he  held  for  two  terms,  when  he 
resigned  it  to  enter  into  the  practice  of  law 
in  San  Francisco. 

While  at  Seattle  he  married  the  eldest  daugh- 
ter of  Rev.  George  F.  Whitworth,  D.  D.,  a 
prominent  Presbyterian  divine  of  Washing- 
ton territory.  The  Judge  evidently  had  a 
strong  faith  in  llie  Whitworth  fanuly,  for.  on 
arriving  at  San  Francisco,  he  entered  into  a 
law  partnership  with  his  wife's  worthy  brother, 
John  M.  Whitworth.  Referring  to  his  services 
on  the  bench  at  Seattle,  the  writer  has  seen 
opinions  of  some  of  the  leading  men  of  that 
city  with  reference  to  the  manner  in  whicli 
he  discharged  the  duties  of  that  office.  Ex- 
Chief  Justice  Jacobs,  now  one  of  the  Judges 
of  the  Superior  Court  at  Seattle,  said  of  Judge 
York  that  he  was  a  sound  law^'er  and  an  ex- 
cellent Judge,  and  that  he  earned  the  reputa- 
tion of  lieing  one  of  the  best  Probate  Judges 
thai  ti:at  county  had  ever  Inad.  Ex-Chief 
Justice  Burke  declared  that  Judge  York  made 
an  excellent  Judge,  giving  universal  satisfac- 
tion. "I  rcmcml)er,"'  he  said,  "hearing  it 
very  generally  remarked  when  he  left,  that 
had  he  remained,  the  i)eople  would  willingly 
have  re-elected  him  to  the  office  of  Probate 
Judge  as  long  as  he  wished  to  have  that  posi- 
tion." Hon.  A.  .\.  Denney.  ex-member  of  con- 
gress, affirmed  that  Judge  York  filled  the  posi- 
tion of  Judge  of  Probate  with  credit  to  him- 
self and  to  the  entire  satisfaction  of  the  peo- 
ple, and  that  his  character,  both  public  and 
private,  was  absolutely  unblemished.  The  Hon, 
W.  H.  White  also  bore  testimony  to  his  high 
standing  as  a  Judge  and  his  worth  as  a  man. 

Judge  York  practiced  his  profession  in  San 
Francisco  for  twelve  years.  The  firm  of  York 
&  Whitworth.  while  he  was  a  member  of  it, 
was  engaged  in  some  of  the  most  important 
litigation  in  the  State  of  California.  One  case 
in  which  Judge  York  was  engaged,  and  in 
which  be  succeeded  in  obtaining  a  judgment 
for  clients,  is  said  to  have  involved  property 
worth  more  than  a  million  dollars.  Several 
other  cases  in  which  he  was  one  of  the  lead- 


ing counsel  involved  hundreds  of  thousands 
of  dollars.  While  practicing  his  profession  in 
San  Francisco.  Judge  York  resided  at  Berke- 
ley, where  he  became  financially  interested,  and 
in  which  he  now  has  large  land  holdings.  He 
has  always  been  interested  in  municipal  gov- 
ernment, and  took  an  especial  interest  in  the 
government  of  Berkeley.  He  served  four  years 
as  attorney  for  that  municipality.  He  wrote 
many  articles  for  local  newspapers  on  topics 
of  municipal  reform.  He  also  wrote  and  pub- 
lished many  articles  pertaining  to  the  laws 
of  the  State  and  national  politics.  He  took 
an  especial  interest  in  the  Indian  question,  and, 
in  an  essay  published  in  1877,  declared  that 
the  laws  establishing  and  maintaining  Indian 
reservations  were  wrong;  that  the  Indians 
should  be  treated  as  citizens ;  and  that  they 
should  be  held  amenable  to  our  laws  the 
same  as  any  other  people.  After  coming  to 
this  conclusion,  he  wrote :  "To  be  citizens 
does  not  necessarily  imply  that  they  should 
have  the  right  to  vote,  although  many  people 
in  the  United  States  no  better  than  they  and 
no  more  intelligent  than  they,  enjoy  or  abuse 
that  right.  *  =*=  *  Our  popular  objection  to 
such  a  course  is  that  the  Indians  are  not  suffi- 
ciently intelligent  to  take  care  of  themselves, 
and  would  sufi'er  for  food  and  clothes  if  re- 
quired to  rely  upon  themselves.  It  is  true 
they  are  not,  as  a  class,  intelligent,  in  the 
commonly  accepted  meaning  of  the  term  ;  but 
they  have  taken  care  of  themselves,  and  less 
destitution  existed  among  them  before  their 
acquaintance  with  the  whites  than  with  the 
same  number  of  white  people.  Since  their 
connection  with  the  whites  they  have  suffered 
more  for  the  necessaries  of  life  than  before. 
They  raised  corn,  in  very  early  times,  and 
not  only  supported  thmeselves,  but  assisted 
in  supporting  the  whites."  Among  numerous 
citations  of  eminent  authority  for  his  positon. 
Judge  ^'ork  quoted  from  a  speech  delivered 
in  the  house  of  representatives  of  the  United 
States  by  John  C.  Calhoun  in  1820. 

The  following  article  from  his  jien  was  pub- 
lished during  the  sand  lot  excitement  in  San 
I'ranci.sco  : 

"dexxis  ke.\rxev. 
"This  name,  which  to  hundreds  of  thousands 
of  people  has  become  exceedingly  familiar,  is 
that  of  a  man  who  but  a  few  months  ago  was 
entirely  unknown  to  fame.  Now  could  his 
brother  draymen  say  : 

"  'Ye  gods,  it  doth  amaze  me, 
A  man  of  such  a  feeble  temper  should 
So  get  the  start  of  the  majestic  world. 
And  bear  the   palm   alone.' 


WMo  M.     York 


History  of  the  Bench  and  Bar  of  California. 


63 


"He  is  said  to  have  been  in  San  Francisco 
Init  a  short  time,  and  yet  commands  a  vast 
number  of  her  citizens  as  absohitely  as  though 
he  were  their  hereditary  dictator.  His  ideas 
are  the  most  absurd,  and  yet  thousands  listen 
to  him  with  marvelous  appreciation.  It  is 
well  for  him  that  he  sprang  from  the  ranks  of 
the  draymen,  for  if  he  had  been  an  individual 
of  any  note,  his  doctrines  would  have  dis- 
gusted those  who  now  admire.  For  a  for- 
eigner, resident  in  San  Francisco,  to  talk  of 
sending  military  companies  to  Alameda  county 
to  elect  a  candidate  for  senator  is  such  an 
assumption  that,  without  further  evidence,  we 
could  believe  the  speaker  to  be  a  lunatic  or  a 
fool.  Though  we  do  not  record  ourselves  in 
favor  of  the  'Incendiary  bill,'  we  do  claim 
that  the  public  have  and  should  have  the 
right  to  prevent  public  incendiary  utterances. 
Freedom  of  speech  does  not  mean  freedom  to 
incite  evil-disposed  people  to  violate  the  laws, 
and  he  who  is  prevented  from  so  doing  has 
no  more  right  to  complain  than  he  who  is 
prevented  from  cutting  another  man's  throat. 
Kearney  cannot  long  hold  his  position  in  the 
confidence,  esteem  and  admiration  of  the  work- 
ingmen.  The  fallacy  of  his  doctrines — doc- 
trines which  would  make  a  monarchy  of  a  re- 
public, a  thing  more  to  be  deplored  by  the 
workingmen  than  all  things  else — must  soon 
appear  to  them,  and  then  his  ephemeral  power 
will   fade  quickly  away. 

"The  course  he  has  taken  may  neverthe- 
less be  a  benefit  in  one  sense  to  the  work- 
ingmen. It  will  teach  monopolists  their  inse- 
curity, and  the  government  that  the  Chinese 
element  is  antagonistic  to  free  institutions. 
Successive  demonstrations  of  the  people  in  op- 
position to  the  powers  of  the  land  have  grad- 
ually transformed  England  from  a  monarchy 
to  a  government  nearly  republican  in  form. 
Such  demonstrations  make  their  footprints  on 
the  pages  of  history,  and  while  we  now  con- 
demn Dennis  Kearney  and  call  him  a  fanatic, 
the  time  may  come  when  we  can  point  to  in- 
fluences of  great  value  to  the  nation — out- 
growths of  his  wild,  disorderly  acts.  There  is, 
however,  no  necessity  in  the  present  enlight- 
ened conditon  of  our  country  for  such  demon- 
strations. The  ballot  is  an  ample  remedy  for 
all  the  evils  complained  of,  and  the  locking 
up  of  nervous  capital  through  fear  of  insur- 
rection is  of  more  damage  to  laboring  men 
than  all  they  can  hope  to  win  by  incendiary 
agitation." 

About  1887  or  1888.  Charles  .V.  Shurllcff. 
Esq.,  was  added  to  the  firm  of  York  &  Whit 
worth,  and  thereafter  the  firm  name  was  York. 
Whitworth  &  ShurtlefT.  The  old  sign  nf  that 
firm  can  still  be  seen  at  uo  Sutter  street,  in 
San    h'rancisco. 

Becoming  conscious  of  the  fact  that  he  had 
overworked,  and  that  a  change  of  climate  and 
of  work  would  be  beneficial  to  him,  Judge 
York  removed  to  Los  Angeles,  in  1889.  Here 
Tie  immediately  acquired  a  good  law  practice. 
In    the    fall    of   1890   Hon.   James    McLachlan 


was  elected  district  attorney  of  Los  Angeles 
county.  The  county  was  at  that  time  engaged 
in  very  important  litigation.  It  was  the  com- 
mendable policy  of  Mr.  McLachlan  to  so  or- 
ganize his  office  that  no  assistance  would  be 
required  in  the  management  of  the  cases  in 
which  the  county  was  involved;  and,  among 
others  whom  he  selected  for  deputies  in  that 
office,  in  the  line  of  that  policy,  he  offered  the 
position  of  chief  deputy  to  Judge  York,  al- 
though at  that  time  there  was  no  personal  ac- 
quaintance between  them.  After  some  con- 
sideration. Judge  York  made  provision  for  as- 
sistance in  his  private  practice,  accepted  the  po- 
sition and  entered  upon  the  discharge  of  the 
duties  of  that  office.  In  that  position  he  suc- 
cessfully conducted  the  civil  litigation  of  the 
county,  and  in  several  cases  won  distinction 
by  the  ability  with  which  he  conducted  them. 
Among  these  cases  might  be  mentioned  the 
celebrated  railroad  tax  cases,  in  which  he  suc- 
cessfully contended  that  the  assessment  of 
railroad  property  by  the  State  board  of  equali- 
sation was  legal,  notwithstanding  a  franchise 
was  assessed  with  other  property  at  a  gross 
sum,  and  that  the  franchise  assessed  was  a 
State,  and  not  a  United  States  franchise;  the 
bank  ta.x  cases;  and  the  Tahiti  orange  tree 
case,  where  he  successfully  contended  that  a 
shipload  of  orange  trees,  infested  with  scale, 
imported  from  the  Tahiti  Islands,  was  a  pub- 
lic nuisance,  and  secured  an  order  of  court  for 
their  destruction. 

After  tw@  years  of  service  in  the  office  of 
the  district  attorney,  he  entered  into  a  part- 
nership with  Mr.  McLachlan  under  the  firm 
name  of  McLachlan  &  York.  This  firm  es- 
tablished a  large  practice.  In  addition  to  many 
important  cases  conducted  for  their  private 
clientage,  they  represented  several  public  offi- 
cials. They  were  attorneys  for  the  Stale  bank 
connnissioners  for  Southern  California,  for 
the  public  administrator  of  Los  Angeles  county, 
tor  the  Whiltier  .Slate  School,  besides  repre- 
senting the  county  treasurer  in  a  suit  which 
went  through  the  Supreme  Court,  and  de- 
fending tile  superintendent  of  the  County  Hos- 
pit.il  .md  the  horticultural  commissioner,  in 
"iTorts  made  by  dissatisfied  parties  to  obtain 
llieii-    renio\-;il    from    office. 

I)nring  the  year  iS'o.^  uhiK'  IJU'  tirni  ot'  Mc- 
L.icJilan  (&  York  was  engaged  in  business  in 
I. OS  Angeles,  the  Hon.  W.  P.  Wade,  one  of 
I  111'  Judges  of  the  Superior  Court  of  Los  An- 
g(.I(.s  county,  died.  On  the  first  of  January 
t'ollouing,  (iovernor  Markham  appointed  Judge 
^'ork    to   fill    tlu-   vacancy,      .\lthough   this   ap- 


764 


History  of  the  Bench  and  Bar  of  California. 


poimnu'iu  was  unexpected,  it  gave  general  sat- 
isfaction to  the  members  of  the  bar  and  the 
people.  In  the  fall  of  1894.  in  the  Republican 
convention,  Judge  York  received  exceptional 
honors,  being  the  only  candidate  nominated 
for  Judge  on  the  fir.st  i>allol,  there  being  eight 
candidates  in  the  field  and  two  Judges  to  be 
nominated.  Although  running  against  a  law- 
yer of  great  learning  and  ability  who  had  the 
nominations  of  both  the  Democratic  and  Pop- 
ulist parties.  Judge  York  received  a  popular 
majority  at  the  polls  of  about  thirty-five  hun- 
dred votes.  The  term  to  which  Judge  York 
was  elected  was  for  si.\  years,  commencing 
January    i.    1895. 

As  a  Judge,  Judge  York  lias  been  com- 
mended on  all  hands.  He  has  shown  an  ex- 
cellent judicial  temperament.  He  has  been 
fair,  patient,  deliberate  and  courteous.  Yet 
he  maintains  excellent  order  in  his  court  room 
and  has  been  highly  respected  by  the  bar. 

His  memory  of  testimony  is  unusually  clear 
and  his  conception  of  the  law  applicable  to 
cases  is  quick  and  usually  unerring.  His 
decisions  are  ably  written  and  he  has  shown  an 
excellent  faculty  of  concentration,  making  his 
opinions  short  and  to  the  point.  He  has  tried 
many  cases  of  great  importance,  including  the 
case  of  Vineland  Irrigation  District  vs.  Azusa 
Water  Company  et  al..  tlie  trial  of  which 
lasted  about  two  months,  and  in  wliicli  his  de- 
cision was  affirmed  by  the  Supreme  Court. 
Several  other  cases  involving  water  rights  of 
immense  value  have  been  tried  before  him,  and 
in  many  of  them  his  decisions  have  been  ac- 
cepted as  final  without  appeal. 

Judge  York  has  Iieen  frequently  cumnieiided 
by  the  press  and  people  for  his  care  and  dis- 
crimination in  the  e.xamination  of  applicants 
for  naturalization.  Applicants  for  naturaliza- 
tion have  been  repeatedly  turned  away  whom 
he  believed,  by  reason  of  ignorance  or  other- 
wise, to  cheri.sh  no  intelligent  attachment  for 
our  laws  and  institutions.  In  a  magazine  ar- 
ticle ])ul)lished  by  liini,  December  g,  1895.  In- 
states very  clearly  and  tersely  iiis  views  with 
respect  to  the  rights  of  foreigners  to  become 
naturalized  as  citizens  of  the  United  States. 
The  Los  Angeles  Times  of  November  5,  1894. 
observed  as  follows  concerning  this  matter  of 
naturalization:  "Many  applicants  have  not 
been  able  to  say  whether  this  is  a  monarchy 
or  a  republic.  ;ind  many  iiave  declared  the 
President  to  be  the  government  itself.  Judge 
\'ork  is  known  to  have  been  always  patient 
.vith  these  applicants,  examining  them  care- 
fully,   and,    after    satisfying    himself    that    the 


questions  were  understood  by  them,  am!  that 
they  were  wholly  uninformed  as  to  our  system 
of  government,  has  kindly  but  firmly  refused 
to  admit  them  to  citizenship." 

The  Judge  is  an  excellent  public  speaker. 
He  is  impressive  from  his  easy  manner,  his 
distinct  enunciation  and  honest  and  lucid  state- 
ment. Among  his  orations  which  have  been 
published  in  full  by  the  press  were  those  on 
Independence  Day,  1878,  at  Redwood  City;  on 
a  like  occasion  at  San  Miguel,  in  1887,  and  on 
Memorial  Day  at  Ontario,  in  1894.  As  illustra- 
tive of  his  style  of  composition,  we  quote  his 
peroration  in  his  Fourth  of  July  address  at 
San   Miguel: 

"i'hat  flag  is  inseparable  from  this  day.  It 
is  the  materialization  of  a  sentiment.  '  The 
stars  symbolize  the  union  of  the  states,  while 
the  stripes  symbolize  the  grand  old  thirteen 
colonies  that  declared  our  independence.  It  is 
symljolical  of  union,  perseverance,  vigilance, 
honor  and  justice.  It  was  first  unfurled  by 
Washington  at  Saratoga.  It  waved  over  our 
patriot  armies  in  the  dark  hours  of  the  Rev- 
olution. The  bare-footed  soldier  at  Valley 
Forge  endured  his  privations  and  sufferings 
with  greater  fortitude  as  he  looked  upon  that 
flag  floating  in  the  harsh  winter  winds ;  as, 
in  his  imagination,  he  saw  a  great  nation  ruled 
by  the  people,  over  whose  public  institutions, 
whose  armies  and  navies,  that  flag  would  tri- 
umphantly float :  as  he  thought  of  the  honor 
and  love  with  which  a  great  people  would 
cherish  that  flag  and  honor  its  defenders ;  as 
he  thought  of  the  immunity  from  tyranny  of 
a  great  people  under  its  protecting  folds.  In 
the  storm  of  battle  how  oft'  has  that  flag 
inspired  our  patriot  troops  I  How  often  have 
they  sworn  to  die  rather  than  surrender  it! 
How  many  brave  men  have  died  that  that  flag 
might  float !  What  scenes  of  heroism  has  that 
flag  not  witnessed !  Alas !  What  .scenes  of 
suffering  and  barbarity !  Trailed  in  the  dust 
at  Wyoming,  and  Cherry  Valley,  while  its 
defenders  la}'  weltering  in  their  blood,  it  floated 
in  triumph  at  Stony  Point,  at  King's  Mountain, 
at  Cow  Pens,  and  at  Yorktown.  In  the  wars 
that  have  succeeded  the  Revolution,  it  has 
found  equally  brave  defenders.  They,  too, 
have  bourne  it  through  shot  and  shell ;  the 
gloom  of  defeat  and  exultations  of  victory  have 
been  theirs.  It  has  floated  on  every  sea  and 
in  every  commercial  port  of  the  globe.  All 
nations  respect  it.  and  under  its  folds  our 
commerce  is  safe. 

"Under  that  flag  our  nation  has  grown  great 
and  prosperous.  Under  that  flag  literature  and 
the  arts  have  flourished,  and  inventive  genius 
has    found   protection   and   appreciation. 

"It  floats  over  a  greater  inland  commerce 
than  any  flag  ever  unfurled.  It  is  the  ban- 
ner of  human  progress,  of  human  energy,  of 
liberal  religion,  of  free  schools,  of  free  speech, 
and  of  a  free  press. 

"May  this  day  ever  be  remembered  by  a 
grateful  people,  and  may  that  flag  on  each  sue- 


History  of  the  Bench  and  Bar  of  California. 


'65 


ceeding  anniversary  of  our  Declaration  of  In- 
dependence, until  time  shall  be  no  more,  float 
over  this  broad  land,  loved  and  cherished  by 
its  increasing  millions  of  freemen,  and  loved 
and  cherished  by  the  people  all  over  the  world, 
as  the  emblem  of  permanent  liberty  to  man." 

In  his  memorial  address  at  Ontario,  Judge 
York  pays  the  following  tribute  to  General 
Grant : 

"Hannibal  fought  for  revenge.  Julius  Qesar 
fought  for  extension  of  Roman  territory  and 
dominion.  Bonaparte  fought  for  military  re- 
nown. Enthused  by  the  spirit  of  liberty  in 
this  country  was  reared  a  military  commander 
who  fought  for  his  country  alone.  'Let  us 
have  peace,'  was  the  spontaneous  sentiment  of 
his  heart.  He  won  peace  on  fields  of  battle 
amid  the  roar  of  artillery,  the  screaming  of 
bursting  shells  and  the  groans  of  the  wounded 
and  dying.  His  armies  triumphed  over  the 
armies  of  Lee,  and  then  his  great  soul  tri- 
umphed over  their  hearts.  Future  historians 
must  say  that  he  who  led  the  Union  armies  to 
victory  was  the  greatest  general  of  the  world. 
Yet.  though  he  had  a  military  education,  he 
was  called  from  the  pursuits  of  peace,  his  heart 
revolted  against  the  necessary  cruelties  of  war, 
and  he  was  satisfied  to  live  the  life  of  an  ob- 
scure American  citizen. 

"Hannibal  died  by  his  own  hand,  an  exile 
from  his  native  country.  Julius  Caesar  was 
assassinated  by  conspirators,  professedly  be- 
cause he  was  a  danger  to  t'le  state.  Bona 
parte  died  in  exile,  hated  by  the  world.  Grant 
died  with  the  hearts  of  his  countrymen  by  his 
bedside,  with  the  firm  friendship  of  those 
against  whom  he  fought,  and  the  whole  world 
sorrowed.  0:i  his  deathbed  he  wrote  that  he 
would  die  happy  if  he  could  but  know  that 
there  was  complete  unity  of  the  country.  God 
bless  his  noble  soul,  and  may  he  have  an  eter- 
nal round  of  perfect  happiness  in  heaven." 

Our  jurist  has  always  loved  the  muse,  and 
the  i)ress  has  often  published  his  pleasing 
verse.  Among  these  are  "The  Dedication  of 
a  Virgin  Valley,"  published  in  r886:  "Maine 
in  California,"  read  at  the  eleventh  annual  re- 
union of  the  State  of  Maine  Association  at 
Oakland,  California,  on  May  5.  1888:  "The 
Banyan  Tree  at  Avalon."  i8(}i  ;  "The  Victo- 
rious Banner,"  189,?:  "The  Spring  in  liu'  llili- 
side."   1894:  "Eternal   Life."   1895. 

Siinie  of  ijie  nuisl  discriminating  and  aliK' 
men  of  California,  and  many  public  jDurnals. 
ha\e  long  associated  Judge  \'ork  with  tlu- 
office  of  United  States  senator.  During  the  long 
contest  over  this  high  office  in  t898-()(;.  when 
the  term  uf  the  lion.  Steiihen  .M.  White  ex- 
pired. Judge  York  was  highly  recommended  to 
fill  the  vacancy.  The  Los  Aw^clcs  Graf^liic. 
Pasadena  Ne^i^s,  Pomona  Tiiiics,  San  Mii^itrl 
jMcsscni^cr.  and  several  other  papers  declared 
iuie{|uivocally  in  his  favor.  But  the  Judge 
would   not   consent   to  enter   into  any   struggle 


for  that  positon.  howmuchsoever  he  might  de- 
sire the  distinction,  and  would  have  desired  to 
engage  in  the  study  of  the  great  problems  of 
government  now  before  the  country.  The 
friends  of  Judge  York  predict  that  he  will 
have  further  pul)lic  Iionors.  but  his  retiring 
disi)osition  and  ins  evident  .satisfaction  with 
the  work  in  which  he  is  now  engaged,  render 
his  advancement  problematical.  He  has,  how- 
ever, shown  himself  equal  to  any  work  whicli 
he  has   undertaken. 

Judge  York  resides  in  Pasadena.  His  family 
consists  of  his  wife  and  two  children,  a  son 
and  daughter.  His  daughter.  M.  Jessie  York. 
is  an  elocutionist  of  exceptional  ability,  and  his 
son,  Mr.  John  M.  York,  is  in  the  practice  of 
the  law  in  Los  Angeles. 

In  November,  igoo.  the  Judge  was  again 
elected  to  the  Superior  bench  for  a  full  term. 
This  will  expire  m  January,  1907. 


B.    T.    WILLIAMS. 


B.  T.  Williams,  Judge  of  the  Superior  Court 
of  the  county  of  Ventura,  was  born  at  Mt. 
Vernon,  Missouri.  December  25,  1850.  His 
father.  Dr.  J.  S.  Williams,  a  native  of  Ken- 
tucky, was  an  eminent  pliysician.  His  grand- 
father.   Tliomas    Williams,    was    president     if 


wli.it  is  now  IJie  I'niversity  of  Kentucky,  'i'he 
ancestors  of  the  family  settled  in  North  Car- 
olin.'i  at  ,1  period  so  early  that  all  accoiuils  of 
liuni  ,ire  Insi.  One  of  lliem.  a  relative  of 
D.iiiiel  I'.ix.nr.  wciii  to  Kentucky  with  that 
liionrer. 

1  lie  Judge's  mother,  whose  maiden  name 
was  Amanda  Downing,  was  of  the  well-known 
Downing  family  of  l';m(|iiier  county.  \''irgim'a. 


766 


History  of  the  Bench  and  Bar  of  California. 


whose  ancestors  located  in  that  state  at  the 
time  of  the  first  settlement  at  Jamestown,  in 
1607.  Her  father,  H.  H.  Downing,  emigrated 
to  Missouri  in  the  early  history  of  that  state, 
and   was   a  large  landowner  and   planter. 

The  Judge's  parents  came  to  California  in 
1853,  settling  in  Sonoma  county,  and  there 
he  grew  to  the  years  of  maturity.  He  began 
the  study  of  law  in  the  office  of  the  late  Judge 
William  Ross.  He  was  admitted  to  the  bar 
in  187 1,  and  located  at  San  Buenaventura, 
where  he  engaged  in  the  practice  of  his  pro- 
fession. Upon  the  organization  of  the  county 
he  was  elected  district  attorney,  and  served  in 
that  capacity  acceptably  for  four  years.  Enter- 
ing then  into  partnership  with  his  brother,  the 
late  \V.  T.  Williams,  he  continued  in  that  re- 
lation with  him  until  1884,  when  he  was  elected 
to  his  present  position  of  Superior  Judge. 
He    is   now    serving   his   third   term. 

In  his  social  relations.  Judge  Williams  is 
a  member  of  the  Masonic  lodges,  of  the  K. 
of  P.,  and  the  B.  P.  O.  E.  He  was  married 
in  1878  to  Miss  Irene  Parsons,  and  now  has 
five  children,  all  born  in  San  Buenaventura. 

Judge  Benjamin  Tully  Williams  is  a  repre- 
sentative American  gentleman,  good-tempered, 
affable,  easily  approached  and  destitute  of  pride 
or  ostentation.  He  has  a  fine  legal  mind,  is  a 
ready,  easy  speaker,  makes  his  rulings  promptly 
and  usually  gives  entire  satisfaction.  By 
showing  his  honest  desire  strictly  to  admin- 
ister exact  justice,  both  when  district  attor- 
ney and  later  as  Judge,  his  conduct  has  been 
such  as  to  command  the  respect  of  the  bar,  as 
well  as  of  the  best  citizens  of  Ijoth  parties. 

William  Thomas  Williams,  the  brother 
above  named  of  Judge  Williams,  was  born 
in  Missouri,  and  also  came  with  his  parents 
to  California  in  1853.  He  began  the  practice 
of  law  in  Sonoma  county  in  1866.  He  was 
district  attorney  of  Santa  Barbara  county  be- 
fore Ventura  county  was  created.  Removing 
to  Los  Angeles  in  1885.  he  practiced  there  un- 
til his  death,  which  occurred  in  1900.  In 
1896-97  he  was  deputy  district  attorney  of  Los 
Angeles  county  under  Hon.  John  A.  Don- 
nell.  

WILLIAM  A.  CHENEY. 
William  A.  Cheney,  an  experienced  public 
man  of  California,  was  born  in  Boston,  Mass., 
February  18,  1848.  He  received  an  academic 
education,  and  has  been  a  student  all  through 
his  life.  At  the  age  of  nineteen,  A.  D.  1867, 
he  came  to  this  State  by  way  of  Panama,  and 
went    to    Plumas    count  v.      He    was    admitted 


to  practice  by  the  courts  of  Plumas  county 
in  1878,  and  in  the  same  year  was  elected 
County  Judge  of  Plumas,  holding  to  the  open- 
ing of  1880,  when  the  court  passed  out  of 
existence  with  the  old  constitution.  He  was  in 
the  legislature  at  the  first  session  under  the 
new  constitution,  as  State  senator  for  Plumas, 
Butte  and  Lassen  counties.  He  served  at  the 
sessions  of  1880  and  1881.  and  the  extra  ses- 
sion of  the  latter  year,  an  important  period, 
when  the  laws  were  being  adapted  to  the  new 
constitution.  In  1880  he  was  admitted  to  the 
bar  by  the  State  Supreme  Court.  During  his 
senatorial  period,  without  without  residing  at 
Sacramento,  he  had  a  professional  association 
with  Hon.  Creed  Haymond,  of  that  city. 

Judge  Cheney  removed  to  Los  Angeles  in 
1882.  He  was  soon  elected  a  member  of  the 
board  of  education  of  that  city,  and  served  the 
two  years'  term,  1883-84.  In  the  fall  of  1883 
he  was  elected,  on  the  Reptiblican  ticket,  a 
judge  of  the  Superior  Court  of  Los  Angeles 
county  for  a  full  term  of  six  years,  which  he 
served.  He  resumed  law  practice  in  January, 
1891. 

In  the  "History  of  Los  Angeles  County,'' 
(1889)  there  is  a  notice  of  Judge  Cheney,  from 
which  we  take  the  following  well-considered 
passage  : 

"In  his  administration  of  the  criminal  law, 
for  which  department  he  was  selected  by  the 
judgment  of  his  associate  judges,  and  for 
which  his  deep  moral  sense  specially  quali- 
fied him,  an  earnest  desire  to  temper  the  se- 
verity of  the  sentence  with  such  measure  of 
mere}-  as  he  thinks  benefits  the  individual  case, 
is  never  absent.  While  inflicting  the  neces- 
sary penalty  of  transgression,  he  seeks  to  fos- 
ter and  encourage  whatever  impulse  toward 
virtue  may  still  linger  in  the  heart  of  the  crim- 
inal. He  habit  ualh-  recognizes  that  in  the  vio- 
lation of  law  there  may  be  hidden  the  germs 
of  redeemable  manhood. 

"No  biograuhical  sketch  of  Judge  Cheney 
would  be  comnlete  without  a  reference  to  his 
ability  as  an  orator,  so  often  attested  in  his 
criminal  practice  at  the  bar,  and  to  his  achieve- 
ments on  the  platform  on  great  occasions, 
which  place  him  in  the  front  rank  of  public 
speakers." 

The  Judge  married  Miss  Annie  E.  Skinner, 
of  New  Haven,  Connecticut,  in  1871.  They 
have  one  son.  Harvey  D.  Cheney,  who  is  also- 
a  member  of  the  bar. 


M.  II.  HYLAND. 

M.  H.  Hyland.  one  of  the  Judges  of  the  Su- 
perior Court  of  Santa  Clara  county,  was  born 
in  Massachusetts  in  1851.  He  has  been  a  resi- 
dent of  San  Jose  since  about  1S70.     He  served 


History  of  the  Bench  and  Bar  of  California. 


767 


■one  term  as  deputy  in  the  county  clerk's  of- 
fice there.  He  prepared  himself  for  the  bar 
in  that  city,  and  passed  the  examination  before 
the  Supreme  Court  in  1885.  He  practiced  in 
San  Jose  until  1896,  when  he  was  elected  a 
Judge  of  the  Superior  Court.  He  is  repre- 
sented by  those  who  know  him  well  as  being 
a  man  of  broad  mind,  kindly  nature  and  fine 
judicial  temi)cranicnt,  entirely  worthy  of  a 
place  among  tiie  distinguished   men   wlio  have 


dignified  the  bar  and  the  bench  of  Santa  Clara 
county.  At  the  bar  he  was  always  character- 
ized by  industry  and  ability,  and  he  has  made 
an  excellent  record  on  the  bench.  He  is  firm 
in  his  rulings,  impartial  and  conscientious  in 
his  judgments.  He  is  of  very  fine  physiog- 
nomy, telling  of  a  frank  nature  and  cor- 
rect habitudes,  and  clear  reflection.  His  term 
as  Superior  Judge  runs  to  the  first  week  in 
190.3-  ^^^ 

S.    C    DENSON. 
Samuel   C.    Denson    was   born   near   Quincy, 
Adams    county,    Illinois,    September    23,    1839. 
He   belongs   to   an   old   American    family,   and 
his   forefathers    were    found 

"Where  once  the  embattled  farmers  stood 
And  fired  the  shot  heard  round  the  world." 

He  was  educated  in  the  district  school  and 
at  Abingdon  College.  He  commenced  the 
study  of  law  at  Quincy,  but  before  completing 
his  course  he  came,  in  i860,  across  tho  plains, 
behind  an  oxtcani.  Upon  arriving  in  the 
State,  he  drifted  into  Butte  county,  where  for 
a  time  he  engaged  in  mining,  about  sixteen 
miles  from  Oroville.  He  resumed  law  study 
at  Oroville,  borrowing  books  from  Joseph  E. 
N.  Lewis,  then  a  prominent  member  of  the 
bar    of    that    county,    who    died    at    Oroville, 


June  26th.  1869.  He  read  at  night  while 
prosecuting  his  mining  labors  during  the  day. 
Being  oflFered  the  situation  of  teacher  of  the 
village  school  at  a  little  place  called  Wyan- 
dotte, he  accepted  it,  and  for  eight  months 
taught  school,  giving  all  of  his  leisure  hours 
to  the  reading  of  his  law-books  and  going  to 
Oroville  on  Saturdays  for  instruction  and 
to  exchange  books.  He  prosecuted  his  stud- 
ies as  best  he  could  until  1863,  when  he  was 
admitted  to  the  bar.  In  March,  1864,  he 
went  to  the  Territory  of  Nevada,  locating 
at  Carson  City.  He  was  examined  and  admit- 
ted to  practice  in  the  Supreme  Court  of  that 
Territory.  On  the  organization  of  the  State 
government  in  the  fall  of  1864.  he  was  elected 
a  member  of  the  first  State  legislature  from 
Ormsby  county.  He  practiced  law,  first  in 
partnership  with  Judge  Thomas  Wells,  and 
afterwards  with  Thomas  E.  Hayden,  and  was 
engaged  in  much  of  the  important  litigation 
of  that  State.  In  1866  he  was  elected  district 
attorney  of  Ormsbj-  county,  and  was  re- 
elected at  the  November  election,  of  1868. 

Being  re-elected  district  attorney,  he  re- 
signed the  office  in  December,  1868,  and 
removed  to  Sacramento,  in  this  State.  There 
he  formed  a  partnership  with  Hon.  H.  O. 
Beatty.  who  had  been  a  Supreme  Judge  of 
Nevada,  as  al.so  his  son,  Hon.  William  H. 
Beatty,  now  Chief  Justice  of  our  Supreme 
Court.  The  firm  continued  until  1875,  when 
Judge  Denson  was  nominated  by  the  Repub- 
lican party  and  elected  Judge  of  the  Sixth 
judicial  district,  composed  of  the  counties 
of  Sacramento  and  Yolo. 

When  the  new  constitution  went  into  effect, 
and  at  the  Republican  county  convention  in 
1879,  he  was  unanimously  tendered  the  nom- 
ination for  Superior  Judge,  and  was  elected 
to  that  office  by  a  large  majority.  As  Supe- 
rior Judge  he  presided  in  many  important 
cases.  One  that  attractoti  the  attention  of 
the  State  was  that  of  Troy  Dye  and  Edward 
.Anderson,  charged  will  the  murder  of  Aaron 
M.  Tullis.  Dye  was  a  prominent  citizen  of 
Sacramento  county,  and  at  that  time  held  the 
oflU-i'  of  j)nl)Iic  administr.itor.  The  evidence  in 
the  case  showed  that  in  order  to  secure  the 
commissions  as  public  administrator  in  ad- 
ministering on  the  estate  of  Tullis.  who  was  a 
ln.ivy  land  owner  in  the  county,  he  had 
entered  into  a  conspiracy  with  Anderson  and 
Tom  Lawton  to  murder  Tullis.  Tullis  owned 
a  large  orchard  on  Grand  Island.  On  the 
evening  of  July  30,  1878,  Lawton  and  Ander- 
son left  Sacramento  in  a  rowboat  for  Grand 
Island,    and    there    killed    Tullis.     The    detcc- 


768 


History  of  the  Bench  and  Bar  of  California. 


lives  fastened  the  crime  on  the  parties,  and 
arrested  Dye  and  Anderson,  but  Lawton 
made  his  escape.  Shortly  after  the  arrest, 
Dye  and  Anderson  confessed  fully  the  details 
of  the  crime.  The  peculiar  motive  for  the 
crime — that  of  obtaining  the  commissions  as 
public  administrator — together  with  the  prom- 
inence of  Dye,  attracted  universal  attention. 
These  cases  were  defended  by  Colonel  Creed 
Raymond,  but  the  defendants  were  convicted 
and    hanged. 

During  his  term  of  office  as  District  Judge, 
there  was  a  large  amount  of  litigation  involv- 
ing the  titles  of  swamp  lands,  the  consideration 
of  the  law  on  the  subject  of  reclamation  dis- 
tricts, assessments,  etc.,  and  he  had  to  do 
with  most  of  the  important  cases  on  that  sub- 
ject in  this  State.  Being  located  at  the  seat 
of    government,    all    of    the    important    State 


JAMES  M.  MANNON. 

James  M.  Mannon,  Judge  of  the  Superio;- 
Court  of  Mendocino  county,  was  born  in 
Brown  county,  Ohio,  and  received  his  educa- 
tion in  the  common  schools  of  that  State. 
He  was  graduated  from  the  Southwest  Normal 
School  at  Lebanon,  and  after  a  few  years 
passed   in   teaching   school,   he   immigrated   to 


California.  He  arrived  in  San  Luis  Obispo 
county  in  1873,  and  engaged  in  stockraising 
and  various  other  pusuits,  until  failing  health 
compelled  him  to  withdraw  from  active  phy- 
sical labor.  He  then  began  the  study  of  law, 
and  in  1881  was  admitted  to  the  bar.  Shortly 
thereafter  he  removed  to  Ukiah. 

In    1875    he    was    married    to    .Miss    Mattie 


litigation,  which  has  arisen  during  his  term 
of  office,  came  before  him  for  decision. 

In  the  fall  of  1882,  Judge  Denson  and  Supe- 
rior Judge  John  Hunt,  of  San  Francisco,  were 
the  Republican  candidates  for  Justices  of  the 
Supreme  Court,  but  the  State  went  strongly 
Democratic  that  year,  and  the  nominees  of 
that    party    were    all    elected. 

Judge  Denson  removed  to  San  Francisco 
in  1889.  In  1894  he  and  e.x-Supreme  Judge 
John  J.  DeHaven,  became  associated  (Denson 
&  DeHaven),  and  remained  together  for  three 
years,  when  Judge  DeHaven  entered  upon  the 
office  of  United  States  District  Judge.  Judge 
Denson,  his  son,  H.  B.  Denson,  and  C.  H. 
Oatman,  then  comprised  a  new  firm  (Denson, 
Oatman  &  Denson).  After  a  year  or  so,  Bert 
Schlesinger  took  Mr.  Oatman's  place,  and 
the  firm  continues  as  Denson,  Schlesinger  & 
Denson. 


Clark  of  Windsor,  Sonoma  county,  and  two 
living  sons  are  the  issue  of  the  marriage — 
Charles  M.  and  J.  Milton.  The  former  was 
graduated  with  honor  from  Stanford  Uni- 
versity in  1898,  and  from  Hastings  College  of 
the  Law  in  1900.  He  is  now  in  active  practice 
in  San  Francisco.  J.  Milton  Mannon,  the 
younger  son,  was  graduated  from  the  Uni- 
versity of  California  in  the  class  of  "99,  and 
is  now  a  middle-year  student  in  the  Hastings 
College  of  the  Law. 

Judge  Mannon  rose  rapidly,  not  alone  in 
his  profession,  but  in  the  confidence  of  the 
people,  and  the  years  1887-88  saw  him  occupy- 
ing the  position  of  district  attorney,  a  place  he 
filled  with  distinguished  ability.  When  his  term 
ended  he  resumed  the  practice  of  the  law,  and 
soon  attained  the  position  of  a  leader  at  the  bar, 
Among  his  clients  were  the  large  corporations 
of  the  State  and  the  prominent  business  men  of 
the  county. 

In  1896  he  was  the  Republican  candidate 
for  Judge  of  the  Superior  Court,  and  in  a 
county  that  was  strongly  Democratic  he  was 
elected  by  a  substantial  majority.  His  de- 
cisions are  regarded  as  having  always  been 
just  and  fair,  and  the  attorneys  of  all  par- 
ties have  never  yet  expressed  dissatisfaction  at 
his  rulings.  The  Judge  possesses,  in  an  emi- 
nent degree,  the  judicial  mind.  He  is  tolerant 
and  patient  under  the  most  trying  circum- 
stances, and  has  the  entire  confidence  of  the 
people  of  Mendocino  county. 

His  ambition  in  life  has  been  the  education 
of  his  sons,  who  are  very  bright  young  men. 
They  have  been  given  every  advantage,  and  are 
now  entering  upon  careers  which  promise  10  be 
distinguished. 


We  have  aimed  to  present  the  members  of  the  betich  in  alphabetical  order.  Here  and  there  this  arrangement 
has  been  departed  from  to  bring  a  portrait  in  apposition  with  the  sketch  of  the  same  person.  And  there  are  some 
sketches  which  were  put  in  form  too  late  for  the  usual  disposition.  These  appear  in  the  iew  pages  that  precede 
this  note. 

Editor. 


SENIORS  OF  THE 
COLLECTIVE   BAR 


ujd(^oi(at!fi3i^(2>Gib(^b^dib 


HISTORY  of  the 
BENCH  and  BAR 
of  CALIFORNIA 


,  ep  C)n  riti  rp  efi  rpi  ^ 


SENIORS  of  ^^e  COLLECTIVE  BAR 


The  great  array  of  attorneys  who  face  the  sunrise  of  a  new  century,  and  who  will  now 
receive  our  attention,  we  will  not  attempt  to  classify  according  to  degrees  of  ability  or  merit.  Of 
this  large  body  there  are  recognized  able  men  in  every  city,  and  in  some  of  the  smaller  centers. 
These,  as  a  rule,  do  not  lay  claim  to  superior  endowments  or  acquirements,  and  really  are  not  on 
higher  ground  than  some  others  whom  the  light  of  reputation  has  not  yet  brought  into  plain 
view.  And  ever  and  anon  the  profession  is  heard  calling  to  some  occupant  of  a  lowly  seat, 
"Friend  go  up  higher."  We  shall  present  the  profession  in  two  companies,  divided  only  as  seniors 
and  juniors,  drawing  the  line  at  the  year  i860.  Those  who  were  born  before  and  in  that  year  we 
place  in  the  finst  company,  and  all  the  rest  in  the  second.  As  a  further  assurance  against  any- 
thing like  inattentive  discrimination,  both  companies  will  be  brought  into  alphabetical  line,  ex- 
cepting any  individual  member  of  either  company  that  may  have  to  be  written  of  too  late  for 
such  assignment.  Of  course  we  are  alive  to  the  fact  that  in  our  second  band  are  a  goodly  number 
of  practitioners  of  larger  experience,  more  mature  minds,  and  more  natural  ability  than  many 
whom  this  enforced  arrangement  has  thrown  into  the  first  collection.  The  reader  will  consider 
and  conclude  for  himself. 


FREDERICK  AfJAMS. 

This  gentleman  is  a  native  of  Crawford 
county,  Tennessee.  Both  of  his  grandfathers 
were  Revolutionary  soldiers,  and  both  served 
in  the  War  of  181 2.  His  father,  long  before 
he  reached  man's  estate,  fought  in  wars  with 
the  Indians.  At  the  age  of  seventeen,  while 
acting  as  hospital  steward,  he  was  shot 
tlirough  the  left  shoulder.  He  also  took  part 
in  the  Blackhawk  War.  In  1835  he  settled  at 
St.  Louis,  Mo.,  in  the  practice  of  law,  and 
there  held  the  offices  of  Circuit  Judge  and 
Commissioner  of  Public  Works. 

Judge  Adams,  our  subject,  in  1844.  when  a 
mere  boy,  went  to  the  Kansas  Indian  territory 
as  interpreter  to  the  commission  sent  out  by 
the  government  to  treat  with  the  Indians, 
and  remained  with  the  commission  for  two 
years.  In  1846  he  joined  the  Second  Indiana 
Volunteers  at  Memphis,  Tenn.,  as  a  drummer, 
and  went  with  the  regiment  to  Mexico.  He 
was  wounded  in  a  fight  with  Mexican  guer- 
rillas near  Fort  Brown,  and  languished  in 
a  hospital  at  San  Antonio  for  over  four 
months.  Upon  recovery  he  was  transferred 
to  the  Second  Texas  Vohmteers,  and.  in  a 
campaign  against  the  Comanches,  was  in  the 
Battles  of  Big  Horse  Creek,  Wild  Horse  Creek 


and  Forks  of  Wild  Horse  Creek,  in  all  of 
which  the  Texans  sustained  severe  losses ; 
and  at  Silver  Springs,  where  they  were  de- 
feated. 

Returning  from  this  Indian  expedition,  he 
was  ordered  on  a  detail  sent  to  guard  dis- 
patches and  supplies  for  Colonel  Donaphan 
and  his  regiment,  the  Second  Missouri.  He 
was  discharged  at  El  Paso,  Texas,  November, 
1847.  Receiving  the  appointment  of  govern- 
ment mail  carrier  between  El  Paso  and  Al- 
buquerque, New  Mexico,  he  was  in  that  ser- 
vice from  November,  1847,  to  May,  1848, 
often  meeting  hostile  bands  of  the  red  men, 
who  killed  a  number  of  his  horses,  and  from 
whom   he   had   many   close  personal   calls. 

Judge  Adams  set  out  for  California  as 
early  as  November,  1848,  with  Marcy's  Bat- 
talion. He  was  discharged  in  1849,  at  Los 
Angeles.  The  next  five  or  six  years  were 
passed  in  the  gold  mines  of  El  Dorado,  and 
Siskiyou  counties.  The  opening  of  the  Rogue 
River  Indian  war  in  1855  found  him  again 
in  the  government  ranks,  and  ho  <erved 
through  that  conflict  as  a  scout.  He  followed 
the  flag  through  later  Indian  campaigns — 
against  the  Modocs  in  1856,  .^!ld  the  Pit 
River  Indians  in  the  same  year. 
Passing  over  the  period   from    1S61   to   1868, 


72 


History  of  the  Bench  and  Bar  of  California. 


wliich  \va^  spent  in  Oregon  and  Idaho,  a  por- 
timi  of  it  at  the  bar.  Judge  Adams  took  up 
his  residence  in  the  latter  year  at  Santa  Cruz, 
Cal..  where  he  followed  law  practice  until 
1880.  Subsequent  periods  at  the  bar  were 
passed — in  San  Luis  Obispo  county,  1880- 
1891  :  in  San  Francisco  and  Oakland,  iSqi- 
1898.  Since  the  latter  year  he  has  been  fol- 
lowing the  profession  in  El  Dorado  county, 
having   his    home   and   office   at    Placerville. 


t 


^U    V 


Judge  Adams  has  held  many  places  of  pub- 
lic trust.  In  1855  he  was  deputy  sheriff  of 
Siskiyou  county.  In  1864  he  was  tax  col- 
lector and  county  treasurer  of  Grant  county, 
Oregon.  He  was  assemblyman  from  that 
county  in  1866.  and  County  Judge  of  Grant 
county  in  1867. 

In  1873  and  1874  he  was  city  attorney  of 
Santa  Cruz,  Cal.  ;  and  in  1884  was  city  at- 
torney of  San  Luis  Obispo,  Cal. 

Judge  Adams  is  a  Knight  Templar  in  the 
Masonic  Order,  and  a  member  of  the  A.  O.  U. 
W.  In  1890  he  was  Grand  Master  of  the 
last   named   order. 

He  married  Miss  Eliza  L.  Miller  in  Yreka, 
and  has  two  daughters,  Mrs.  E.  R.  Tutt. 
of  Oakland,  and  Mrs.  H.  A.  Barkelew,  of 
Fresno. 

His  politics  are  Republican,  for  which  cause 
he  has  several  times  canvassed  the  state,  be- 
ing an  effective  stump  speaker.  He  was  a 
prominent  candidate  for  the  party  nomination 
for  Governor  before  the  Republican  State 
convention   at   Los   Angeles   in    1896. 


A.    AIRD    ADAIR. 


Mr.  Adair  was  born  in  London,  Ontario, 
on  the  25th  of  August,  1857.  In  1882  he  was 
admitted  to  the  bar  of  Ontario,  taking  very 
successfully  the  examinations  for  barrister 
and  attorney  prescribed  by  the  benchers  of  the 
Law  Society,  and  at  once  entered  upon  the 
practice  of  his  profession  at  Stratford,  On- 
tario. In  June.  1887,  the  University  of  To- 
ronto conferred  upon  him  the  degree  of  LL. 
B. ;  and  in  the  following  vear  upon  the  or- 
ganization of  the   judicial  district  of  Muskoka 


and  Parry  Sound,  he  was  appointed  by  the 
government  of  Ontario  to  the  olhce  of  clerk 
of  the  peace  and  crown  attorney  of  that  dis- 
trict. In  less  than  two  years  thereafter,  he 
was  compelled,  on  account  of  ill-health,  to 
resign  this  office,  and  he  removed  to  South- 
ern California,  making  Riverside  his  home. 
Since  January,  1890,  he  has  practiced  there  in 
partnership  with  W.  A.  Purington,  Esq.. 
Ever  since  the  organization  of  the  County  of 
Riverside,  the  firm  of  Purington  &  Adair 
has  been  identified  with  a  large  part  of  the 
legal  business  transacted  in  the  county,  and 
enjoys  the  confidence  of  a  large  clientage. 


WILLIAM    H.    AIKEN. 

William  Henry  Aiken  was  born  at  Middle- 
bury,  Vt.,  October  22,  1843.  His  father.  Judge 
Charles  Aiken,  was  an  eminent  lawyer  of 
that  state,  who  removed  to  California  late  in 
life,  and  after  some  years'  practice  at  the  San 
Francisco  bar,  died  at  the  great  age  of  ninety- 
three. 

Mr.  Aiken  is  a  college  graduate  of  1863,  and 
served  in  the  Union  army  during  the  Civil 
War  for  two  years,  until  its  close.  He  enlisted 
from  Wisconsin.  He  was  afterwards  admit- 
ted to  the  bar  there,  and  a  year  later,  in  1867, 
he  removed  to  San  Francisco,  where  he  was 
associated  in  law  practice  with  Messrs.  James 
M.  Shafter  and  James  M.  Seawell  (both  of 
whom  afterwards  became  Superior  Judges ) 
until  1876.  Mr.  Aiken  then  retired  to  a  farm 
in  Santa  Cruz  county,  where  he  has  ever  since 
resided.  He  is  the  owner  of  the  largest  and 
most  valuable  orchard  and  vineyard  in  that 
county.  The  "Aiken"  brands  of  prunes  and 
table  grapes  are  as  well  known  as  any  in  the 
State,  and  are  in  the  highest  favor  in  eastern 
markets. 


Mr.  Aiken  has  been  prominent  in  military 
circles.  He  was  department  commander  of 
the  G.  A.  R.  for  two  terms,  and  for  a  like 
period  commander-in-chief  of  the  Army  and 
Navy  Republican  League.  For  more  than 
twenty  years  he  has  represented  his  county  in 
the   State  and   countv  conventions  of  the   Re- 


James  A.  Anderson 

I  See  I'at'e  T;t  1 


History  of  the  Bench  and  Bar  of  California. 


<  / 


3 


publican  party.  He  is  a  well-informed  man, 
of  interesting  personality,  an  effective  public 
speaker,  and  has  often  addressed  the  masses 
on  behalf  of  his  party,  spoken  from  the  lecture 
platform,  and  in  1900  canvassed  the  State  in 
the  interest  of  the  fruit-growers  as  their 
organizing  head.  He  is  married,  and  his  wife 
evinces  as  much  interest  as  he  in  the  develop- 
ment of  the  fruit  industries  of  the  State,  at- 
tending with  him  social  and  business  meetings 
of  farmers  and  orchardists,  and  reading  papers 
of  her  own  composition  on  vital  subjects. 

Mr.  Aiken  is  a  man  of  large  and  strong 
frame,  of  excellent  habits,  and  having  always 
enjoyed  robust  health,  promises  to  attain  a 
great  age,  if  not  the  long  reach  bi-^  father 
knew. 


K.    ALBERY. 


K.  Albery  read  law  in  the  offices  of  Judge 
H.  B.  Albery  and  Horace  Wilson,  in  Colum- 
l)us,  Ohio.  He  was  examined  by  ex- Supreme 
Judge  Allan  G.  Thurman,  and  Hon.  George 
L.  Converse,  and  on  their  certificate  of  quali- 
fication was,  in  March,  1865,  admitted  to  prac- 
tice law  in  all  the  courts  of  record  in  Ohio. 
He  was  prosecuting  attorney  for  Mercer 
county,  Ohio,  from  January,  1867,  to  Janu- 
ary, 1871.  He  came  to  California  in  February, 
1880,  and  followed  prospecting  and  mining 
for  five  years.  He  commenced  the  practice  of 
law   in   Colusa   in   November,    1886.  V 

Prospecting  for  precious  metals'  in  Shasta 
county  during  the  summers  of  1895  and  i8g6. 
Mr.-  Albery  made  the  discovery  that  gold  ore 
in  a  body,  as  a  magnet,  will  attract  refined 
gold  as  a  predicate,  with  gravitation  deflected, 
for  a  distance  of  three  or  four  miles. 

Our  subject  is  a  brother  of  Hon.  H.  H.  Al- 
bery, Judge  of  the  Superior  Court  for  Colusa 
county.  In  March.  1897,  K.  Albery  located  in 
Willows,  Glenn  county,  where  he  is  now  prac- 
ticing law  in  partnership  with  Hon.  Ben.  F. 
Geis. 


D.    E.    ALEXANDER. 

D.  E.  Alexander  was  born  in  Jackson,  Miss., 
on  the  7th  day  of  February,  1845;  he  resided 
in  his  native  place  until  after  the  gold  excite- 
ment broke  out.  His  father,  B.  F.  Alexander, 
caught  the  gold  fever  and  joined  the  rush  for 
the  golden  shores.  His  family,  then  consist- 
ing of  his  wife,  Caroline  W.  Alexander,  and 
three  children,  to-wit,  a  daughter,  since  de- 
ceased, and  two  sons,  Hon.  John  K.  Alexander, 
of  Salinas  City,  then  a  boy  of  some  fourteen 
years,  and  D.  E.  Alexander,  the  subject  of 
this  article,  followed  him  here  in  the  year  1854. 
They  arrived  at  San  Francisco  about  the  20th 
day  of  September  on  the  steamship  California. 
it  having  taken  them  three  weeks  to  make  the 
trip  from  New  Orleans  here,  via  Panaiua. 
The  family  immediately  took  passage  on  the 
historic  river  boat  New  World,  to  Sacramento, 
arriving  there  the   following  day. 

At  that  date  schools  were  few  in  California, 
but  such  as  they  were  they  were  utilized  by 
the    senior    Alexander,    and    tlie    children    were 


all  sent  to  school.  It  was  the  good  fortune 
of  our  subject  to  be  placed  under  the  tutor- 
ship of  Andrew  R.  Jackson,  a  self-made  man. 
Mr.  Jackson  .so  managed  his  pupils  that  they 
were  self-reliant,  a  qualification  which  became 
highly  developed  in  our  subject.  By  reason 
of  this,  Mr.  Alexander  has  been  able  to  achieve 
much.  He  continued  his  attendance  upon  the 
schools  of  Sacramento  city,  graduating  with 
high  honors  from  the  Sacramento  high  school, 
April  28th.  1866.  Prior  to  his  graduation  he 
studied  law,  and  was  admitted  to  the  bar  in 
the  February  following  his  graduation.  His 
law  preceptors  were  Hon.  George  R.  Moore, 
Hon.  James  W.  Cofifroth,  both  eminent  law- 
yers, and  Hon.  John  K.  Alexander,  who  now 
resides   at   Salinas   City,  in  this   State. 

Our  subject  has  never  been  active  in  politics, 
but  in  his  young  days  his  party  (Democratic) 
twice  nominated  him  for  the  office  of  justice 
of  the  peace.  The  first  time  he  was  elected  by 
a    small    majority,    Sacramento    city    being    a 


strong  Republican  citadel.  His  administration 
of  that  office  was  such  that  at  the  expiration 
of  his  term  he  was  elected  by  a  large  majority 
over  his  Republican  opponent,  and  was  the 
only  Democrat  elected  on  his  ticket. 

After  the  adoption  of  the  new  constitution 
he  was  a  candidate  for  Superior  Judge  of  the 
county  of  Sacramento.  While  he  was  not 
elected,  he  received  a  very  flattering  vote,  run- 
ning far  ahead  of  the  balance  of  his  ticket. 
Since  this  date  he  has  followed  strictly  in  the 
line  of  his  chosen  profession,  with  marked 
success.  He  moved  to  San  Francisco,  in  May, 
1888.  and  has  continued  to  i)ractice  there  to 
the  present  time.  llis  offices  are  located  in 
the  Crocker  Imililini;.  .ind  lie  li;is  a  lucrative 
business. 

FISHER  AMES. 

i'isiier  .Anu's.  long  pniniiiieni  ;il  the  bar  of 
San  l'"rancisco.  was  born  in  New  Hampshire. 
I'ebruary  8.  1844.  He  was  educated  at  I^arl- 
mouth  College,  and  was  admitted  to  the  bar 
by  the  Supreme  Court  of  the  state  of  New 
York  at  Albany.  May  10.  1870.  In  the  latter 
vear    he    came    to    California,    and    has    always 


774 


History  of  the  Bench  and  Bar  of  California. 


since  resided  at  San  Francisco.  He  has,  during 
his  thirty  years'  practice  there,  been  one  of  the 
most  active  ana  conspicuous  men  of  the  bar. 
He  soon  became  assistant  in  the  office  of  Hon. 
W.  C.  Burnett,  who  held  the  position  of  city 
and  county  attorney  for  the  unusual  period  of 
eight  years.  Mr.  Ames  is  of  Democratic  poli- 
tics. He  served  as  a  member  of  the  board  of 
education  for  the  years  1876-77;  he  was  the 
unsuccessful  candidate  of  his  party  for  city 
and  county  attorney  in  November,  1884 ;  in 
1882  he  was  a  member  of  the  board  of  free- 
holders, which  framed  one  of  the  three  unsuc- 
cessful city  charters;  and  for  five  years,  1887- 
1892,  he  was  a  member  of  the  board  of  fire 
commissioners. 

Mr.  Ames  is  a  man  of  family.  He  has  no 
law  partner.  His  practice  is  large,  and  he  has 
accumulated  a  fortune.  He  has  many  fine  qual- 
ities, both  as  a  man  and  a  lawyer. 


JAMES  A.  ANDERSON. 

James  A.  Anderson,  one  of  the  sages  of  the 
Los  Angeles  bar,  was  born  in  North  Carolina 
in  1826.  He  is  of  ScotchTlrish  ancestry.  His 
early  life  was  spent  in  Tennessee.  He  served 
four  years  in  the  Confederate  army,  and  was 
captain  of  a  cavalry  company  in  Forrest's 
Brigade.  He  was  admitted  to  the  bar  by  the 
Supreme  Court  of  Tennessee  in  1848,  and  prac- 
ticed for  many  years  at  Memphis,  where  he 
was  also  a  Judge  of  the  Circuit  Court. 

In  1881  Judge  Anderson  removed  to  Tuc- 
son, Arizona,  and  practiced  there  with  much 
success  for  several  years.  He  came  to  Cali- 
fornia, and  settled  at  Los  Angeles  in  1885. 
There  he  practiced  at  first  in  partnership  with 
W.  F.  Fitzgerald  and  his  son,  J.  A.  Anderson, 
under  the  firm  name  of  Anderson,  Fitzgerald 
&  Anderson.  Since  the  election  of  W.  F. 
Fitzgerald  to  the  office  of  attorney-general  he 
has  been  associated  with  his  three  sons,  under 
the  style  of  Anderson  &  Anderson,  his  son, 
C.  V.  Anderson,  conducting  an  office  for  the 
firm  at  Bakersfield.  This  firm  has  been  a 
member  of  the  Los  Angeles  Chamber  of  Com- 
merce since  1890. 

On  July  10,  1899,  this  distinguished  veteran 
was  banciueted  by  the  bar  of  Los  Angeles,  the 
occasion  being  most  interesting  and  memora- 
ble, as  will  be  universally  credited.  It  was 
in  celebration  of  the  fiftieth  anniversary  of 
his  admission  to  the  bar.  The  committee  in 
charge  were  Superior  Judge  M.  T.  Allen,  ex- 
Judge  John  S.  Chapman,  and  Benjamin  Good- 
rich, with  Joseph  Scott  as  secretary.  Hon. 
Thomas  L.  Winder  presided  at  the  feast,  and 
Hon.  Henry  T.  Lee  was  toastmaster.  Re- 
sponses were  made  to  "Our  Guest"  by  Hon. 
Stephen  M.  White ;  to  "The  Bar"  by  ex-Su- 
preme Judge  Works,  and  to  "The  Bench"  by 
Superior  Judge  Lucien   Shaw. 

At  the  age  of  seventy-five  he  is  still  active 
in  the  discliarge  of  professional  duties,  and  in 
sound  health. 

W.   A.   ANDERSON, 

W.  A.  Anderson  came  to  California  in  1849, 
being   only   three   years   old   when    his    father 


arrived  in  Sacramento,  July  12th  of  that  year. 
His  residence  has  continued  at  the  capital  up 
to  the  present  time,  with  the  exception  of  five 
years  while  at  college,  and  one  year  in  the 
army  during  the  War  of  the  Rebellion.  For 
thirty-three  years  he  has  been  a  member  of 
the  Supreme  Court  bar.  When  but  a  youth 
he  was  elected  county  auditor  of  Sacramento, 
and  took  his  seat  just  four  days  after  he  had 
reached  his  majority. 

For  thirteen  years  he  was  assistant  adju- 
tant general,  with  the  rank  of  major,  of  the 
Fourth  Brigade,  National  Guard.  In  1890 
he  was  United  States  supervisor  of  census. 
In  1893  he  was  a  member  of  the  assembly. 
From  1868  until  1876  he  was  associated  in  the 
practice  of  law  with  the  late  George  Cadwal- 
ader,    and    has    been    counsel    in    some   of   the 


important  litigation,  both  civil  and  criminal, 
of  this  coast.  For  many  years  he  has  been 
well  known  in  literary  circles,  having  written 
much  for  the  press  and  in  the  lines  of  general 
literature.  He  is  well  known  in  political 
campaigns,  having  taken  part  as  a  stalwart 
Republican  in  every  contest  for  over  thirty 
years.  From  1875  to  1886  he  was  city  attorney 
of  Sacramento. 

Judge  Anderson  (for  he  is  at  present  the' 
police  judge  of  Sacramento  City)  has  at  all 
times  been  a  close  student,  and  in  addition 
to  his  legal  attainments  is  a  lover  of  litera- 
ture, particularly  the  drama,  and  has  written 
a  number  of  clever  dramatic  productions.  His 
sketches  of  some  departed  eminent  lawyers, 
published  in  the  daily  press,  are  valuable  as 
matters  of  history.  This  is  especially  true 
of  his  article  on  the  late  Henry  Edgerton. 

E.  R.  ANNABLE. 

This  gentleman  is  descended  through  both 
parents  from  Puritan  ancestry.  The  Annables 
are  an  old  English  family.  His  paternal  an- 
cestors came  over  and  settled  in  Massachu- 
setts in  1632.  His  grandfather.  Lieutenant  Ed- 
ward Annable,  served  witli  distinction  seven 
years  without  a  furlough  and  to  the  end  of  the 
Revolutionary   War.     Among  other   duties   he 


George  Babcock 


History  of  the  Bench  and  Bar  of  California. 


in 


was  of  Major  Andre's  guard,  from  his  arrest  to 
execution.  His  father.  F.  C.  Annable.  was  a 
pioneer  of  Michigan  in  the  early  days,  and 
was  much  in  public  life.  Ix-ing  a  meml^er  of  the 
legislature  in  184 1. 

Mr.  Annable  was  born  in  Van  Buren  county, 
Michigan.  June  3,  1851.  He  completed  a  high 
school  classical  course  at  Paw  Paw.  Michigan, 
in  187 1.  He  read  law  and  was  admitted  to 
practice  at  Kalamazoo.  Michigan,  in  1873.  Then 
he  opened  an  office  at  Paw  Paw.  Michigan, 
and  practiced  his  profession  there  until  i8gi, 
when  he  removed  to  California.  At  the  time 
of  his  removal  he  was  prosecuting  attorney  of 
his  county,  and  also  occupying  the  position  of 
vice-president  of  the  First  National  Bank  of 
that  place.  He  had  been  on  its  board  of  direc- 
tors and  was  the  attorney  for  this  bank  for 
nine  years  preceding  his  coming  to  California. 
In  San  Bernardino  he  does  a  general  law  busi- 
ness, giving  it  his  entire  attention,  except  the 
diversion  of  supervising  his  orange  ranch  at 
Highland.  Mr.  Annable  is  in  the  prime  of  life, 
and  occupies  a  high  place  among  the  attorneys 
of  San  Bernardino  county. 


GEORGE  BABCOCK. 


Colonel  George  Babcock.  the  noted  orator 
and  veteran  of  the  Civil  War.  was  born  in 
Yates  county,  New  York,  in  1832.  After  a 
course  in  the  common  schools,  he  became 
a  member  of  the  Genessee  College.  Subse- 
quently he  was  professor  of  Latin  and  math- 
ematics in  the  Genessee  Model  School.  On  the 
4th  of  March.  1856.  Colonel  Babcock  was  ad- 
mitted to  the  bar  at  Albany.  Shortly  after  his 
admission  he  accepted  the  principalship  of  the 
Batavia  school,  and  in  1870  he  commenced  the 
practice  of  his  profession  in  that  town.  He 
had  hardly  settled  before  the  volcano  of  the 
Civil  War  burst  on  the  country.  Locking  his 
law  office,  he  went  on  the  platform  and  assisted 
by  his  stirring  appeals  in  raising  two  regiments. 
Not  satisfied  with  his  efforts  in  behalf  of  his 
country's  cause,  the  Colonel,  in  February,  1861, 
was  mustered  into  the  service  as  a  private 
in  Company  E,  Fifth  New  York  Regiment.  He 
particii)ated  in  a  number  of  battles,  and  after 
the  fierce  and  bloody  stru^ele  at  Antietam, 
at  which  he  was  captain  of  his  company,  lie 
was  totally  disabled,  and  honorabh-  mustered 
out  of  the  service.  On  his  return  he  was  ad- 
vised to  go  South.  He  went  to  St.  Louis, 
where  for  sixteen  years  he  successfullj'  prac 
ticed  law.  He  was  a  member  of  the  city 
council  for  several  years,  and  in  1864  he  was 
a  delegate  to  the  National  Rei)nblican  con- 
vention. Colonel  Babcock  in  principles  has  al- 
ways been  a  Whig  and  a  Keuublican.  In  all 
the  political  camii.'iigns  since  i8(')4  he  has  lakn'U 
an  active  part.  In  i88j  he  came  to  Califor- 
nia. He  was  chief  adjuster  in  the  United 
States  Mint  at  San  Francisco  from  t8(X)  to 
1894.  On  his  retirement  from*  I  he  mint  he 
was  tendered  the  appointment  of  court  com- 
missioner of  Alameda  county,  a  position  which 
he  now  holds.  As  a  public  speaker.  Colonel 
BabcncK  is  well  known  throughout  the  State 
and   country.      In   California   alone   he   has   de- 


livered over  three  hundred  addresses  on  liter- 
ary, political  and  economic  subjects.  He  is  a 
gentleman  of  fine  literary  attainments,  an 
elegant  writer,  of  pleading  i>ersonality  and  has 
a  host  of  friends  among  all  classes  of  our  citi- 
zens, and  particularly  among  the  comrades  of 
the   Grand    Army   of   the    Republic. 


\V.   T.   BAGGETT. 


William  Thomas  Baggett.  who  has  become 
distinguished  of  late  years  at  the  bar  of  San 
Francisco,  was  born  in  Mississippi.  December 
16.  1850.  He  was  admitted  to  the  bar  by  the 
Sui)reme  Court  of  Tennessee  in  1873.  Coming 
to  California  in  1877.  he  located  in  San  Fran- 
cisco. In  1878  he  issued  the  Pacific  Coast 
Lazi.'  Journal;  the  next  year  he  published  the 
(San  P'rancisco)  Lazv  Journal,  in  associa- 
tion with  F.  A.  Schofield ;  in  1880-81  he  and 
William  H.  Davis  owned  and  conducted  the 
journal  first  named  above,  and  Mr.  Baggett 
was  then  also  editor  of  the  Daily  Examiner, 
of  which  he  was  part  owner.  In  1882-8?  he 
and  Mr.  Davis,  and  James  H.  Stockwell, 
owned  and  nublished  the  (San  Francisco) 
Daily  Lazv  Journal,  which  journal  is  still, 
in  1901.  owned  and  conducted  by  him  and 
Mr.    Stockwell. 

It  was  about  1883  that  Mr.  Baggett  began  to 
apply  himself  in  earnest  to  the  practice  of 
law.  He  very  soon  became  connected  with 
some  cases  of  first  importance,  which  he  car- 
ried to  successful  issue,  surprising  his  ac- 
quaintances of  the  bar  by  his  skill  in  man- 
agement, as  well  as  by  his  knowledge  of  the 
law.  He  is  a  far-sighted  man  and  an  able 
lawyer,  and  he  has,  for  a  decade  or  more,  en- 
joyed great  good  fortune  at  the  practice,  ac- 
quiring a  comfortable  estate.  His  most  nota- 
ble case,  in  which  he  scored  substantial  tri- 
umph, after  a  protracted  struggle,  is  briefly 
stated  in  the  sketch  of  Hon.  J.  C.  B.  Heb- 
bard — that  of  Fox  vs.  Levy  et  al.,  known  as 
the  Hale  &  Norcross  suit,  where  his  client, 
the  plaintiff,  obtained  the  largest  money  judg- 
ment e\er  rendered  in  a  contested  case  in  this 
State. 


H.   A.    BARCLAY. 


.Ml'.  P.arcla\-  \v:is  born  in  Jefferson  county, 
I'ennsylvani.i,  J.inuary  17.  1840.  His  f;ither 
w.is  lion.  David  Barclay,  a  descendant  of  a 
long  line  of  Scottish  ancestors,  of  whom  Rob- 
ert Barclay,  the  aindogist.  was  an  eminent 
member.  They  were  usually  design.ited  ,is  the 
i'.,ircLiys  of  I'ry — the  faiuily  seat.  David  Bar- 
cl,'i\-  wa-;  ;i  member  of  congress  in  1856  and 
1S57.  Me  helped  to  organize  the  Republican 
n;iri\  in  I'rnnsyl\;ini;i.  On  his  mother's  side 
he  c.ime  of  I'jiglish  slock — her  ancestors  being 
inUresii-d  with  William  Penn  in  the  Penn- 
^yK.inia  grant.  Charles  Gaskill,  her  f.uher. 
w.is  ;in  extensive  land  owner  in  Philndeliihia 
;ind   Camden. 

Mr.  Barclay,  by  hi~.  own  efforts,  obtained 
an  education  al  Allegheny  College  at  Mead- 
ville.  Pennsylvania,  and  at  Cornell  I'niver- 
silv  in  the  classical  and  scientific  courses.     He 


778 


History  of  the  Bench  and  Bar  of  California. 


then  took  up  civil  engineering.  He  was  en- 
gaged in  the  oil  business  in  Pennsylvania  for 
a  number  of  years.  He  studied  law  and  was 
admitted  to  the  bar  in  1871.  He  practiced  law 
in  Armstrong,  Clarion  and  Alleghenj'  coun- 
ties until  1874.  In  that  year  he  came  to  Cali- 
fornia and  settled  in  Los  Angeles.  He  en- 
deavored to  develop  the  oil  industrj'  in  Los 
Angeles  county,  but  failed  to  enlist  capital,  and 
resumed  the  practice  of  law  in  Los  Angeles 
city.  He  was  one  of  the  founders  of  the  South- 
ern California  National  Bank,  now  the  Mer- 
chants" National  Bank,  and  was  one  of  its  di- 
rectors and  its  attorney  for  a  number  of  years. 
He  has  been  interested  in  the  developtuent 
of  Southern  California,  and  was  one  of  the 
founders  of  Corona,  Rialto  and  Beaumont,  and 
was  largely  instrumental  in  securing  the  forest 
reservations  of  San  (]al)ricl  and  San  Bernar- 
dino. 

Mr.  Barclay  has  paid  particular  attention  to 
land  and  water  litigation,  corporation  law.  me- 
chanics' liens,  mining  law,  and  is  a  member 
of  the  Southwest  Miners"  Association.  Politi- 
cally, he  is  a  Republican.  He  was  vice  and 
acting  chairman  of  -the  county  Republican  cen- 
tral committee  in  the  Garfield  campaign,  in 
whicli  Los  .Angeles  county  was  carried  for  the 
Republicans  for  the  first  time  in  its  history.  He 
was  elected  chairman  of  that  committee  in 
the  ensuing  Blaine  campaign. 

Mr.  Barclay  was  married,  in  1882,  to  Miss 
Lily  A.  Ward,  formerly  of  New  Haven.  Con- 
necticut, by  whom  he  has  had  two  children. 
He  resides  at  1^21  South  Main  street,  Los 
Angeles  city. 


JOHN  A.  BARHAM. 


John  A.  Barham  was  born  July  17.  1844.  in 
Missouri.  He  came  with  his  parents  to  Cali- 
fornia in  1849,  and  has  since  been  continu- 
ouslv  a  resident  of  this  State.     He  was  edu- 


cated in  the  public  schools  and  at  the  Hes- 
perian College  at  Woodland,  California.  He 
taught  for  three  years  in  the  public  schools, 
and  during  that  period  he  read  law.     He  was 


admitted  to  the  bar  in  1868,  and  practiced 
law  successively  at  Watsonville,  San  Fran- 
cisco and  at  Santa  Rosa. 

Mr.  Barham  was  elected  to  the  fifty-fourth 
congress  from  the  First  district  in  November, 
1894.  as  a  Republican,  and  was  re-elected  to 
the  fifty-fiftii  and  fifty-sixth  congresses  each 
time  by  an  increased  vote.  The  district  was 
Democratic  when  he  first  ran,  but  he  was 
elected  to  the  fifty-sixth  congress  by  1354 
majority.  In  the  two  last  campaigns  "Native 
Sons""  were  nominated  against  him.  He  claimed 
that,  while  he  was  not  a  native  son.  he  got 
here  as  quick  as  he  could.  His  period  in  con- 
gress was  from  March  4.  1895,  to  March  4, 
1901.  During  his  first  term  he  took  an  active 
part  against  what  was  known  as  the  "Powers 
funding  bill."  which  was  designed  to  fund  the 
indebtedness  of  the  Lhiion.  Central  and  West- 
ern Pacific  Railways.  He  assisted  in  defeat- 
ing it.  His  contention  was  that  railroads 
should  pay  their  debts  the  same  as  individuals 
are  required  to  pay  theirs.  He  w^as  also  an 
active  and  earnest  advocate  for  the  construc- 
tion of  the  Nicaragua  canal.  His  opposition 
to  the  "Powers  funding  bill""  brought  out  the 
railroads  against  his  re-election.  He  had  in- 
tended to  retire  from  congress  at  the  end  of 
his  first  term,  but  the  opposition  of  the  rail- 
roads caused  him  to  announce  his  candidacy. 
This  he  did  in  a  prepared  interview  from 
Washington,  D.  C.  He  gave  no  further  at- 
tention to  the  matter,  took  no  part  in  the  elec- 
tion of  delegates  to  the  convention,  and  did 
not  know  who  the  delegates  were  that  were 
chosen  from  his  own  home.  Although  many 
candidates  in  his  party  aspired  to  the  high 
place,  he  was  nominated  by  acclamation. 

During  his  second  term  Mr.  Barham  of- 
fered an  amendment  to  the  senate  bill  for  the 
settlement  of  the  railroad  indebtedness,  which 
by  his  personal  influence  in  the  house  was 
adopted,  and  by  virtue  of  which  the  wholc 
debt  of  the  Union,  Central  and  Western  Pa- 
cific Railroads  was  settled  and  every  cent  of 
principal  and  interest,  amounting  to  over  $124.- 
000.000.  was  paid  into  the  treasury  of  the 
United  States.  Thus  was  happily  removed 
from  State  and  national  politics  an  embarrass- 
ing question. 

Mr.  Barham  had  again  intended  to  retire  at 
the  end  of  his  second  term,  but  his  advocacy 
of  the  bill  on  amendment  for  the  settlement 
of  the  railroad  indebtedness  called  down  upon 
him  the  wrath  of  demagogues,  and  he  was  de- 
nounced as  a  railroad  hireling.  In  conse- 
quence of  this,  he  again  announced  his  can- 
didacy for  re-election.  He  was  again  renom- 
inated without  the  slightest  intimation  of  op- 
position in  his  own  part}-,  and  was  re-elected 
by  a  largely  increased  majority.  He  procured 
the  passage  of  many  local  bills  for  his  dis- 
trict and  at  all  times  was  a  persistent,  active 
and  zealous  advocate  of  the  Nicaragua  canal 
bill.  No  mall  took  a  more  prominent  part 
than  Mr.  Barham  in  the  matter  of  this  bill. 
After  years  of  labor,  he  engrafted  upon  the 
Hepburn  bill  two  amendments,  one  doing 
away  with  the  necessity  of  acquiring  sover- 
eignty  over  the   canal   route    (which   was   im- 


Harmon  Bell 


History  of  the  Bench  and  Bar  of  California. 


781 


possible  under  the  constitutions  of  Nicaragua 
and  Costa  Rica),  and  providing  simply  for 
a  right  of  way;  and  tlie  other  amendment  re- 
lieved the  bill  from  diplomatic  emljarrassmenl, 
leaving  to  future  congresses  the  settlement  of 
the  question  whether  the  canal  shall  be  for- 
tified, defended  by  the  navy,  or  whether  the 
canal  shall  be  neutral.  The  adoption  of  this 
last  amendment  brought  about  the  consid- 
eration of  the  bill  in  the  house  by  imanimous 
consent,  and  it  passed  by  a  large  majority. 

Mr.  Barhani  took  a  very  prominent  part 
in  the  measure  for  the  construction  of  the 
Pacific  cable  from  San  Francisco  to  Manila, 
by  way  of  Hawaii.  He  made  a  strong  report 
on  the  "pure  food  bill,"  in  which  bill  he  took 
great  interest.  He  is  an  influential  member 
ol  the  house,  a  member  of  the  most  important 
committees.  He  is  in  touch  with  the  depart- 
ments, and  is  a  personal  friend  of  the  Presi- 
dent. Mr.  Barham  never  plays  to  the  gal- 
leries, never  looks  back  to  see  which  way 
the  procession  is  going,  but  is  fearless  in  the 
l)erformance  of  duty.  He  has  made  icw 
speeches  in  the  house;  he  believes  that  much 
lime  is  wasted  and  money  expended  in  use- 
less and  tiresome  debate,  but  he  has  won  a 
national  reputation  as  an  orator  in  the  true 
sense  of  the  word. 

At  the  close  of  the  campaign  of  1898  he 
announced  that  he  would  not  be  a  candidate 
for  re-nomination.  He  was  urged  by  mem 
hers  of  all  parties  to  reconsider  and  to  again 
stand  for  re-election,  but  while  acceptiny  the 
high  compliment,  he  firmly  declined. 

Mr.  Barham  is  in  the  prime  of  life,  and  is 
about  to  return  to  the  practice  of  the  law.  He 
is  recognized  as  a  lawyer  of  splendid  ability, 
and  intends,  at  the  close  of  the  fifty-si.xth  con- 
gress, to  reside  and  follow  his  i)rofession  at 
.San    b'rancisco. 


ARCHn^..\LD   BARNARD. 

.Vrchibald  Barnard  was  born  at  Montreal,  in 
Canada,  on  the  loth  of  November,  i860. 

He  comes  from  a  family  of  lawyers;  his 
father,  Edmund  Barnard,  was  an  advocate  and 
;i  Queen's  counsel ;  his  grandfather,  lulward 
Barnard,  wxis  for  many  years  attorney  general 
of  Lower  Canada.  His  great  grandfather  was 
also  a  lawyer.  The  Barnard  family  came  or- 
iginally from  Deerfield.  Massachusetts,  and  was 
amongst  the  first  settlers  of  that  State.  Mr. 
i'>arnard's  mother  was  the  daughter  of  Charles 
King  .\ustin,  a  member  of  the  judiciary  in  Al- 
bany, N.  Y. 

Mr.  Barnard  was  educated  at  .St.  Mary's 
College,  in  Montreal,  and  holds  the  degree  of 
bachelor  of  arts  from  St.  John's  College,  Ford- 
ham,  N.  Y.  He  holds  the  degree  of  Ijachclor 
of  laws  from  McGill  University,  in  Montreal. 
He  was  admitted  to  practice  in  Canada  in  July, 
i<S(S_'.  and  settled  in  California  in  i886.  He 
l)egan  his  ])ractice  as  an  assistant  in  the  office 
of  (iarber,  Boalt  &  Bishop,  of  San  Francisco. 

Mr.  Barnard  has  been  repeatedly  called  to 
testify  as  an  expert  as  to  the  civil  law,  go\;- 
erning  French-speaking  countries.  He  is  con- 
versant   with    the    French     and     Spanish    lan- 


guages, has  been  conspicut)us  in  politics,  and  is 
very  prominent  at  the  San  Francisco  bar. 

JOSEPH  C.  B.\TES. 

Mr.  Bates  has  been  at  the  San  Francisco 
l)ar,  and  one  of  its  most  active  and  prosperous 
members,  since  the  far-ofif  year  1866.  While 
he  follows  all  departments  of  the  practice,  ex- 
cept criminal,  his  specialties  are  probate  mat- 
ters, street  assessments,  special  proceedings, 
and  also  libel  and  slander  cases  have  received 
his  attention. 

lie  was  born  at  Richmond,  in  tiie  state  of 
Maine,  on  July  i.  J836,  of  an  old  New  England 
family.  He  graduated  from  Bowdoin  College 
m  the  class  of  1863.  one  of  his  collegemates 
being  Hon.  Thomas  B.  Reed,  who  is  referred  to 
in  this  History.  He  began  reading  law  in 
1864.  while  teaching  school  at  Redwood  City, 
California.  He  located  at  San  Francisco  on 
April  30,  1866,  and  went  into  the  office  of  Hor- 
ace Hawes,  the  author  of  the  San  Francisco 
consolidation  act,  and  was  admitted  to  the  bar 
by  the  State  Supreme  Court  in  the  year  follow- 
ing. He  has  practiced  through  this  long  period 
without  a  partner.  He  is  a  Republican  in  poli- 
tics, and  never  sought  office.  The  Horace 
Hawes  will  contest,  commenced  in  1871,  was 
the  first  important  case  that  came  into  his 
office,  which  resulted  in  the  breaking  of  the 
will  and  the  annulment  of  the  deeds  of  trust 
attempted  tc  be  executed  by  decedent. 

Said  estate  was  closed  in  the  Probate  Court 
by  partition  under  the  probate  partition  law. 
and  was  the  first  estate  of  much  value  in  which 
partition  was  carried  through  in  the  Probate 
Court  in  San  PVanci-sco,  as  doubt  existed  in  the 
minds  of  leading  lawyers  at  the  bar  of  the 
power  of  the  Probate  Court,  under  the  consti- 
tution, to  make  partition  of  estate  of  decedents. 
The  question  was  finally  settled  in  the  case  of 
Robinson  vs.  Fair,  128  U.  S.  85,  which  was  the 
first,  but  not  the  last,  case  of  Mr.  l^ates  in  the 
I'niied   States   Supreme  Court. 

Mr.  Bates  was  married  at  San  Francisco  in 
1868  to  Miss  Bertha  Comstock,  a  native  of 
Louisiana,  and  has  ;i  son  ;iiul  three  d.iughlers 
li\ni"'. 


II  AU.MON  BELL, 

llannon  P.ell,  of  llie  S.m  iMancisco  bar.  was 
born  in  Oakland,  California,  on  M.arch  23,  18^5. 
the  son  of  Rev.  Dr.  Samuel  H.  and  Sophia 
Walsworib  Bell  Sanuiel  B.  Bell  was  a  man 
(iistinguislu-d  in  hoili  religious  and  political 
life  in  the  early  days  of  this  Stale.  Ife  was 
I  he  first  |)astor  of  the  First  Presbyterian 
(■linrcli  of  Oakland,  and  one  of  the  founders 
o|  ilie  Ct>llege  (now  rniversity)  of  California. 
We  knew  him  when  he  represented  .Mamed.i 
and  Santa  Clara  cotmlies  in  the  State  senate 
at  the  sessions  of  1857  and  1858.  the  legisla- 
lure  then  meeting  amnially.  He  was  a  do.sc 
friend  and  adnu'rer  of  Raker,  and  was  himself 
.1  strong  and  logical  speaker.  The  session  of 
1857  was  the  first  at  which  the  Republican 
party    had    ;i    representation    in    either    lionse. 


782 


History  of  the  Bench  and  Bar  of  California. 


That  party,  of  which  the  elder  Bell  was  one  of 
the  organizers  in  this  State,  had  just  elected 
their  legislative  delegates  in  San  Francisco 
and  Alameda  counties.  Some  extracts  from 
Samuel  ii.  Bell's  speeches  are  in  our  book, 
"Calitornia  Anthology."  He  was  in  the  legis- 
lature again  at  the  thirteenth  session,  at  a 
most  stirring  war  time,  now  representing  Ala- 
meda county  only,  and  being  in  the  assembly. 

Harmon  Bell  received  a  fine  education,  and 
was  admitted  to  the  bar  in  1878.  Since  that 
time,  at  different  places,  he  has  always  been 
actively  occupied  in  his  profession.  For  a 
period  he  resided  at  Kansas  City,  Missouri, 
and  for  two  years  represented  that  city  in 
the  state  legislature.  He  has  been  at  the  bar 
of  San  Francisco  for  only  a  few  years,  but 
has  acquired  a  good  practice.  He  is  a  very 
competent  and  devoted  lawyer,  possessed  of 
manv  engaging  (jualities.  and  inspires  a  kindly 
feeling  in  all   who  come  to  know  him. 

Mr.  Bell  is  of  Republican  politics,  a  Knight 
Templar  Mason,  and  a  member  of  the  Mystic 
Shrine.  He  was  married  in  1880  to  Miss 
Catherine  Wilson,  daughter  of  A.  J.  Wilson, 
Esq..  and  Margaret  Wilson,  of  Santa  Barbara. 
There  are  two  children  of  tne  union  now  liv- 
ing. Traylor  W.  and  Joseph  S.  The  family 
home  is  on  Prospect  Heights,  Oakland. 


HORACE  BELL. 


Major  Bell  was  born  at  New  Albany.  Ind., 
December  nth.  1830.  His  paternal  and  mater- 
nal ancestors  were  of  the  Parson  Holmes  col- 
ony that  landed  in  Boston  from  six  ships  in 
1719.  This  colony  was  made  up  at  Manches- 
ter. England,  and  has  been  known  as  the 
Scotch-Irish  Presbyterian  colony.  His  moth- 
er's family  name  was  Wright.  The  Wrights, 
McKees.  Williamsons  and  Bells  were  of  the 
original  settlers  of  Fort  Pitt,  and  were  of  the 
founders  of  Pittsboro.  now  Pittsburgh,  in  1789. 
They   were  all   kinspeople. 

Our  subject  left  school  in  Kentucky  at  the 
age  of  eighteen  years,  and  came  overland  to 
California,  arriving  at  Sacramento  on  the  19th 
day  of  August,  1850.  and.  except  when  absent 
in  the  wars,  he  has  since  resided  in  this  State. 
In  his  first  two-and-a-half  years  in  California 
young  Bell,  engaged  in  mining,  with  moderate 
success.  In  October,  1852.  he  went  to  Los 
Angeles.  In  1853  he  became  a  member  of 
the  famous  Ranger  company,  organized  by 
ihe  State  for  the  purpose  of  putting  down  the 
Joaquin  Murietta  outlaw  band,  and  of  pacificat- 
ing  turbulent  California,  embracing  the  region 
extending  from  San  Francisco  to  San  Diego. 
In  1856  he  joined  the  .American  army  of  occu- 
pation in  Nicaragua,  under  President  Rivas 
and  General  William  Walker,  and  although 
only  twenty-five  years  of  age.  he  rapidly  arose 
to  the  command  of  a  six-company  battalion  and 
served  as  such  until  the  end  of  that  most  san- 
guinary war.  In  1858  he  returned  to  Indiana 
and  took  an  active  part  in  the  border  troubles 
that  flamed  along  the  Ohio  river.  For  his 
conduct  during  that  epoch  he  has  been  enrolled 
on  the  list  of  border  heroes.     This  part  of  the 


Major's  career,  however,  pertains  to  Indiana, 
and  appears  on  the  historical  records  of  that 
state.  The  late  Secretary  of  State,  Walter  Q. 
Gresham,  who  was  intimately  associated  with 
Major  Bell  during  the  Civil  War  and  the  bor- 
der troubles  preceding  the  outbreak  of  actual 
hostilities  between  the  North  and  the  South,  in 
a  conversation  with  Judge  E.  H.  Lamme,  for- 
merly of  Indiana,  now  a  leading  lawyer  of  Los 
Angeles,  a  short  time  prior  to  Judge  Gresh- 
am's  death,  said :  'T  think  Horace  Bell  is 
the  most  courageous  man  I  ever  knew." 

In  1859  Major  Bell  went  to  Mexico  and 
joined  the  arruy  of  the  great  patriot,  Benito 
Juarez,  and  served  in  a  campaign  in  the  "Re- 
actionist" war — Miramon  against  Juarez.  Re- 
turning to  California  in  i860,  he  in  March, 
1 861,  went  east  to  take  part  in  the  war  that 
was  then  imminent.  He  went  via  San  Fran- 
cisco. Panama,  Havana,  New  Orleans,  ar- 
rived at  Indianapolis  in  April  and  joined  the 
first  regiment  he  met,  the  Sixth  Indiana,  and 
was  mustered  into  the  L^nited  States  service 
April  22.  1861.  He  served  until  the  end  of  the 
war. 

At  headquarters.  Department  of  Louisiana, 
where  Major  Bell  had  served  on  the  staff  of 
General  Canby  for  about  two  years,  a  record 
of  his  service  was  made  up,  and  recorded  at 
the  war  department,  to  which  a  certificate  was 
appended,  from  which  we  make  the  follow- 
ing extract,  referring  to  Major  Bell: 

"His  gallantry,  resolution,  promptitude  and 
intelligence  have  been  marked  and  commended. 
He  is  a  man  who  does  what  he  undertakes, 
and  is  to  be  trusted  in  wdiat  he  does.  He 
has  rendered  the  government  of  the  United 
States  great  service." 

At  the  close  of  the  war.  Major  Bell  returned 
to  Los  Angeles,  arriving  there  in  July,  1866. 
In  1872,  he  opened  a  law-  office,  and  took  a 
leading  place  at  the  bar,  and  has  maintained 
such  position  until  the  present  writing. 

In  his  modest  way.  Major  Bell  does  not 
claim  any  particular  merit,  but  will  sometimes 
say :  "Well,  I  guess  I  am  about  as  good  as 
any  of  them." 

One  time  (it  was  in  November.  1882)  the 
Major  stepped  out  of  the  legal  harness  and 
assumed  the  editorial  tripod.  He  attacked 
the  local  government,  judicial  and  municipal, 
which  he  charged  to  be  utterly  corrupt.  He 
declared  war  on  the  whole,  excepting  only 
from  his  onslaught  Judge  Volney  E.  Howard 
of  the  Superior  Court,  and  A.  W.  Potts, 
county  clerk,  whom  he  regarded  as  absolutely 
honest  and  incorruptible.  The  result  of  the 
next  election  was  gratifying  to  the  Major, 
and  he  was  able  to  say  in  1888.  upon  his  retire- 
ment from  his  editorial  chair:  "I  have  hung 
the  gory  scalps  of  the  last  mother's  son  of  them 
on  the  ridge-pole  of  my  tent." 

This  was  no  easy  matter  for  the  Major, 
however,  for  twenty  civil  suits  for  libel  were 
brought  against  him.  aggregating,  in  alleged 
damages  to  the  characters  of  the  complainants, 
the  sum  of  over  $100,000.  All  of  these  came  to 
naught.  In  his  paper.  Major  Bell  attacked  the 
police  force  and  its  chief  until  the  latter  offi- 
cial  invaded  the  editor's  sanctum  and  opened 


History  of  the  Bench  and  Bar  of  California. 


783 


upon  him  with  a  44-calihre  revolver.  The 
Major  escaped  with  a  slight  powder  burn  on 
his  right  hand,  and  the  chief  escaped  by  hasty 
riight,  leaving  his  official  chapeau  and  his  re- 
volver as  trophies  to  adorn  the  editorial  office. 

In  1881  INIajor  Bell  published  a  book  on 
California  life,  called  "Reminiscences  of  a 
Ranger,"  a  most  readable  and  popular  work ; 
and  he  now  has  ready  for  the  press  another 
similar  work,  besides  several  others  pertaining 
to   like   reminiscences. 

On  the  day  Fredericksburg  was  fought  De- 
cember 14th,  1862,  the  Major  was  married  in 
New  York  to  Miss  Georgia  Herrick,  of  the 
famous  Herrick  family  of  New  England,  and  a 
niece  of  the  celebrated  Dr.  Herrick,  of  Albany, 
N.  Y.  The  lady  accompanied  her  husband 
to  the  seat  of  war  in  the  Gulf  States,  and  re- 
mained at  New  Orleans  until  the  family  home 
was  established  at  Los  Angeles.  In  that  city 
she  became  so  poular  on  account  of  her  ami- 
able disposition  and  sterling  qualities  that  the 
city  council  named  a  street  in  her  honor, 
■'Georgia  Bell,"  one  of  the  finest  suburban 
avenues   in   Los   Angeles. 

Mrs.  Bell  died  June  8,  1899,  having  carefully 
reared  a   large   family. 


DAVID  P.   BELKNAP. 

This  gentleman,  now  retired,  was  for  over 
forty  years  at  the  San  Francisco  ))ar.  Born 
in  the  city  of  New  York  in  1825,  he  attended 
school  in  his  native  place,  and  subsequently 
completed  his  education  in  the  University  of 
New  York,  graduating  from  that  institution 
with  high  honors  in  1844.  He  arrived  in 
California  in  December,  1850,  and  first  lo- 
cated in  San  Jose,  having  previously  been 
admitted  to  the  bar  by  Hon.  Greene  C.  Bron- 
son,  then  Chief  Justice  of  the  Supreme  Court 
of  New  York.  In  1852  he  removed  to  San 
Francisco  to  pro.secute  various  Spanish  land 
claims  before  the  United  States  land  com- 
mission. Here  he  continued  to  practice  until 
1857,  when  he  entered  the  office  of  William 
Duer,  who  had  been  elected  as  county  clerk 
of  San  Francisco  on  the  People's  party  ticket. 
Mr.  Belknap  had  the  entire  supervision  of  the 
probate  department  throughout  the  two  years 
of  his  connection  with  the  office.  He,  how- 
ever, found  time  during  his  otherwise  leisure 
hours  to  prepare  and  publish  a  work  on  pro- 
bate practice,  and  likewise  Bancroft's  first 
law  form  book.  He  resigned  his  position  in 
the  county  clerk's  office  to  resume  law  prac- 
tice. For  six  months  he  had  associated  with 
him  James  F.  Bovvman.  who  afterwards 
abandoned  the  law  for  journalism,  in  which 
profession  he  became  distinguished,  and  who 
died  at  San  Francisco  in  i88r.  Mr.  Belknap 
formed  a  partnership  ne.xt  with  S.  S.  Wright, 
for  a  brief  period,  after  which  he  was  asso- 
ciated with  John  F.  Swift,  who  was  destined 
to  attain  eminence  and  wealth.  In  1861  Hon. 
Edward  Tompkins,  formerly  law  partner  of 
Daniel  S.  Dickinson,  in  New  York,  w,is  Mr. 
Belknap's  associate,  the  firm  being  known 
as   Tompkins   &   Belknap. 


.In  1862  Joseph  W.  Winans,  the  leading 
pioneer  lawyer  of  Sacramento,  removed  to 
San  Francisco  and  became  connected  with 
the  firm,  and  when  Mr.  Tompkins  withdrew, 
in  1863,  the  two  former  continued  in  business 
as  law  partners  for  over  twenty-five  years, 
in  the  same  office. 

Mr.  Belknap  is  a  gentleman  of  refined  taste 
and  is  an  enthusiastic  admirer  of  paintings, 
statuary,  and  rare  and  unicjue  articles  of  vertu. 
The  Art  Union,  Bohemian,  and  other  literary 
and  social  clubs  long  acknowledged  him  as 
one  of  their  choicest  and  liveliest  spirits.  Of 
the  first  named  association  he  was  once  the 
president  and  the  inspiring  and  directing  ge- 
nius. He  is  a  fine  belles  lettres  scholar,  and  his 
esthetic  accomplishments  render  his  society 
highly  attractive.  Although  dignified  in  de- 
portment and  reticent  and  reserved  in  the 
society  of  formal  acquaintances,  Mr.  Belknap 
has  a  rich  fund  of  humor,  and  wdien  com- 
mingling with  intimate  companions  he  con- 
tributes greatly  to  the  enjoyment  of  the  occa- 
sion. 

F.   A.  BERLIN. 

Frederick  Augustus  Berlin,  a  native  of  the 
state  of  John  Marshall,  which  has  contributed 
so  largely  to  the  bar  of  California  in  all  pe- 
riods of  our  history,  was  born  on  August  i, 
1848.  He  received  his  education  at  Roanoake 
College,  Washington  and  Lee  University,  and 
the  University  of  Virginia.  At  the  institu- 
tion last  named  he  prepared  for  the  bar,  and 
took  the  degree  of  Bachelor  of  Law. 

Mr.  Berlin  came  to  California  in  February, 
1875,  and  has  always  since  practiced  law  in 
San  Francisco.  .  W^ilhout  especially  attracting 
the  public  eye,  he  has,  for  some  twenty  years, 
prosecuted  a  large  general  law  business,  with 
exceptional  success.  He  is  a  man  of  strict 
morality,  with  a  high  sense  of  honor,  and  an 
exact  interpretation  of  justice,  as  well  as 
learned  in  the  law ;  and  his  pro.sperity  has 
been  the  result  of  correct  methods.  As  the 
product  of  faithful  professional  toil,  coupled 
with  some  business  enterprises,  he  has  accu- 
mulated a  considerable   fortune. 

It  has  been  given  us  to  observe  Mr.  Berlin's 
career  at  the  bar  from  its  inception.  He  en- 
joys universal  respect,  and  dignifies  his  calling. 
He  is  an  intluenlial  member  of  the  Presby- 
leri;in   Chnrcli. 

Mr.  iUrlin  married,  at  .S;in  Francisco,  a 
\-oung  laily  who  is  :i  native  of  his  own  stale, 
one  of  the  (l;mghters  of  the  late  Colonel  D. 
[,.  Snioot.  who  was  district  attorney  of  San 
Francisco  in  1880-81.  They  have  several  bright 
children. 


c.\iai:ki    r 


I). 


Calvert  I",  ['.ird  w,i>  born  at  Fayetteville, 
\lal>aiua,  in  iSji.  With  bi>  narents,  he  came 
lo  San  Jose,  ('alifornia.  in  1851.  where  he  has 
ever  since  resided.  He  acciuired  his  education 
mainly  at  the  fjates  San  Jose  Institute,  a  fa- 
mous school  of  earlv  days,  and  at  the  Colletre 
of  California.      During  tlie  year    1871    he  com- 


784 


History  of  the  Bench  and  Bar  of  California. 


meiiced  the  study  of  law.  but  did  not  then  in- 
tend to  apply  for  admission  to  the  bar.  Later, 
however,  he  had  occasion  to  use  his  legal 
knowledge  and  anplied  for  and  obtained  from 
the  Supreme  Court  of  California  his  license  as 
an  attorney  and  counselor.  Since  then  he  has 
applied  himself  with  an  earnestness  that  has 
lirought  him  success.  His  sound  judgment 
and  knowledge  of  the  law  have  secured  for 
him  a  large  clientage. 


Mr.  Bird  was  a  commissioner  of  the  United 
States  Circuit  Court,  Ninth  Judicial  District, 
during  the  years  1889  to  1897.  Those  who 
know  him  recognize  him  as  a  man  of  enlarged 
views  and  great  power  of  mind.  He  is  a  man 
of  strict  integrity,  a  safe  counselor,  always 
liberal  and  practical,  and  possessing  the  cour- 
age that  "dares  to  do  right." 


JAMES  H.  BLANCHARD. 

James  li.  lilanchard  was  l)()rn  in  Niles, 
Michigan.  December  6,  1847.  He  entered  Mich- 
ip^an  University  in  1866  and  was  graduated 
from  the  literary  department  in  1870.  He 
studied  law  in  the  office  of  Felch  &  Grant  at 
Ann  Arbor,  and  was  graduated  from  the  law 
school  of  the  Michigan  University,  in  1872. 
he  was  admitted  to  the  bar  by  the  Supreme 
Lourt  of  that  state  in  the  same  year.  He  came 
to  California  in  1873.  and  was  also  admitted  to 
the  Supreme  Court  of  this  State.  He  located 
at  Los  Angeles,  and  entered  on  the  practice  of 
law.  In  1890  he  undertook  the  management  of 
the  Calif oniia  I'oicc.  the  organ  of  the  Prohi- 
bition party,  but  in  1894  he  again  returned  to 
his  profession.  In  1896  he  was  the  candidate 
of  his  party  for  attorney-general,  and  in  1900 
was  nominated  and  ran  as  Presidential  elector. 
He  is  an  enthusiastic  expounder  of  the  doc- 
trines of  the  Prohibiton  party,  and  usually 
takes  the  stump  in  each  campaign.  He  is  mar- 
ried his  wife  (formerly  Miss  Lucy  Shackel- 
ford) also  takes  an  active  interest  in  all  tem- 
l)crance  work.     They  have  no  children. 


ROBERT  E.  BLEDSOE. 

Robert  E.  Bledsoe  was  born  on  the  26th  day 
of  April,  1845.  near  Shelbyville,  Mo.  He  is 
a  grandson  of  the  distinguished  Senator  Jesse 
Bledsoe,  of  Kentucky.  The  father  of  R.  E. 
Bledsoe  was  born  at  Frankfort,  and  his 
mother  at  Paris,  Ky.,  each  having  the  advan- 
tage of  a  most  liberal  education.  They  lived 
during  the  years  of  Robert's  minority,  on 
the  frontier,  where  school  houses  were  few 
and  far  between,  and  it  so  happened  that 
Robert  had  no  earlj'  educational  advantages. 
The  family  moved  from  Jackson  county.  Ore- 
gon, in  1869,  to  the  San  Bernardino  Valley, 
where  they   engaged   in    farming. 

In  1875,  while  Robert  was  engaged  in  haul- 
ing lumber  from  the  saw  mills  in  the  San 
Bernardino  mountains  over  one  of  the  most 
dangerous  roads  in  the  state,  he  was  elected 
justice  of  the  peace  for  San  Bernardino 
township.  He  held  the  ofifice  for  the  term  of 
two  years,  during  which  lime  he  studied  law 
as  well  as  justice. 

In  1877  he  was  admitted  to  practice  in  the 
District  Court,  and  in  1883.  while  he  was 
district  attorney  of  San  Bernardino  county, 
he  was  admitted  to  practice  in  the  Supreme 
Court,  where  ever  since  he  has  maintained 
a   high   standing. 

Mr.  Bledsoe  began  the  practice  of  law  under 
great  disadvantages.  He  was  entirely  with- 
out means  and  without  even  a  common  school 
education,  and  at  the  time  he  entered  the 
legal  arena  the  San  Bernardino  bar  was  one 
of  the  most  distinguished  in  the  State.  Mr. 
Bledsoe  was  energetic  and  read  and  studied 
law  incessantly ;  he  also  read  history  exten- 
sively,   and    pursued     many     other     subjects 


tl 


necessary  to  be  understood  by  every  success- 
ful lawyer.  He  rose  rapidly  in  the  profession 
and  for  several  years  has  been  recognized  as 
one  of  the  best  lawyers  in  Soutliern  Califor- 
nia, and  especially  on  the  criminal  side  of 
the   practice. 

He  first  won  distinction  in  this  branch  of 
the  law  in  the  prosecution  of  William  R. 
McDowell,   whom   he   convicted   of  murder   in 


History  of  the  Bench  and  Bar  of  California. 


"85 


18S3.  when  he  was  district  attorney.  Mc- 
Dowell was  executed  for  the  crime  at  San 
Bernardino  in  1884.  It  is  said  that  our  sub- 
ject has  defended  more  men  charged  with 
murder  than  any  other  lawyer  in  Southern 
California,  besides  assisting  in  the  prosecution 
of  several  celebrated  cases.  His  success,  how- 
ever, has  been  as  attorney  for  the  defense. 
He  secured  the  acquittal  of  William  Rawlins 
at  San  Diego  in  1889.  charged  with  the  mur- 
der of  Captain  Gilbert.  This  contest  was  a 
memorable  one ;  the  prosecution  was  most 
persistently  and  ably  conducted.  His  de- 
fense of  Charles  Marshall  in  Riverside  county 
was  considered  the  most  remarkable  ever 
made  in  that  county.  Marshall  was  the  only 
one  of  Bledsoe's  clients  upon  whom  the 
death  sentence  was  ever  passed.  However, 
he  secured  a  reversal  of  the  judgment  in  the 
Supreme  Court,  and  upon  a  second  trial  Mar- 
shall was  convicted  of  murder  in  the  second 
degree  and  sentenced  to  sixty  years'  impris- 
onment. Marshall  had  killed  two  men  in 
the  row,  one  of  them  an  officer,  and  public 
opinion  w-as  very  strong  against  him. 

The  acquittal  of  Horace  Adams.  William 
Farley,  Chas.  Grimes  and,  more  recently,  Geo. 
H.  Walker,  the  Redlands  policeman,  besides 
many  other  defendants  who  were  only  con- 
victed of  mai;islaughter,  makes  a  flattering 
record    of    successes. 

In  the  last  three  cases,  Mr.  Bledsoe  was 
ably  assisted  by  his  son  and  partner,  Mr. 
Benj.  F.  Bledsoe,  a  young  lawyer  of  marked 
ability.  Young  Bledsoe  made  the  principal 
argument  in  the  Walker  case,  and  his  argu- 
ment was  the  subject  of  many  comments  from 
the  densely  crowded  court  room. 

Mr.  Bledsoe  is  well  known  all  over  the 
State,  always  faithful  to  his  clients,  active 
and  persistent.  He  is  a  good  trial  lawyer 
and  always  thoroughly  prepared;  a  rapid  and 
merciless  cross-examiner,  and  manages  to  get 
'on  the  good  side  of  a  jury. 

Judge  Smith,  of  Los  Angeles,  who  presided 
at  the  murder  trial  of  John  F.  Milner,  in 
Riverside  county,  where  Bledsoe  was  assist- 
ing in  the  prosecution,  said  that  it  seemed 
as  if  the  jury  regarded  this  advocate,  while 
making  his  argument,  as  one  of  their  own 
number. 

JOHN    II.    P.OAl.r. 

John  Henry  Boalt  was  born  at  Norwalk. 
Ohio,  on  the  29th  day  of  March,  1837.  After 
graduating  at  Amherst  College,  he  concluded 
to  make  mining  and  mechanical  engineering 
his  profession,  and  with  that  end  in  view  he 
went  to  Germany,  and  spent  one  year  in  study 
at  Heidelberg,  and  Iwo  years  at  tlic  famous 
mining  sclmdl  at  Frichurg.  at  which  so  many 
of  our  leading  mining  experts  and  engineers 
graduated.  .'Xfter  completing  his  course  at 
these  universities,  he  spent  some  months  trav- 
eling in  Europe  preparatory  to  liis  return  to 
the  United  States.  Our  great  w;ir  breaking 
out,  he  at  once  returned,  entered  the  arniv  and 
was  appointed  lieutenant  in  Company  D.  of 
the  Eleventh  Ohio  Cavalrv.  He  was  .soon 
after    transferred    to    the    Sign.il    Ciirp«.    and 


placed  on  the  stall  of  General  Curtis  at  Fort 
Leavenworth,  where  Ue  served  until  the  close 
of   the    war. 

.Nevada  liad  now  been  admitted  as  a  state. 
1  he  great  Conistock  lode  had  been  discovered, 
and  was  yielding  its  output  of  the  precious 
meials  in  such  richness  and  quantity  as  had 
iievt-r  before  been  known  in  the  annals  of 
mining.  I^aturally,  the  young  man  turned 
his  attention  to  this  Eldorado,  He  located  at 
Austin,  Nevada,  then  a  thriving  mining  camp 
called  the  Reese  River  Mining  District,  newly 
discovered  in  Lander  county,  and  supposed 
at  that  time  to  equal,  if  not  excel,  the  famous 
Comstock  lode  at  Virginia  City.  Everything 
was  life,  activity  and  speculation.  In  1865  he 
formed  a  partnership  at  Austin  with  Charles 
A.  Stetefeldt  in  the  mining  and  assaying  busi- 
ness. It  was  during  their  partnership  that  the 
Stetefeldt  Furnace  Company  was  formed,  for 
the  purpose  of  reducing  metalliferous  ores. 
The  process,  in  w'hich  he  was  one  of  the 
promoters  and  owners,  was  patented,  and  from 
its  success  he  and  his  associates  derived  a 
large   revenue. 

But  this  was  not  the  vocation  in  life  that 
came  naturally  to  him.  He  soon  abandoned 
it  for  the  broader  field  of  the  law.  His  inti- 
mate associates  at  this  time  were  members  of 
the  bar,  and  Austin  had  a  bar  which  would  be 
eminent  in  any  city.  Men  of  great  legal  at- 
tainments had  come  from  all  parts  of  the 
country,  allured  by  accounts  of  the  fabulous 
wealth  of  this  new  mining  region.  With  such 
associates  it  is  not  strange  that  he  drifted  into 
the  legal  profession.  His  instincts,  too,  all 
turned  in  that  direction.  He  delighted  in  dis- 
cussing legal  propositions,  and  loved  the  law 
as  a  science.  If  there  is  anything  in  the  the- 
ory of  heredity,  it  is  well  exemplified  in  his 
case.  He  came  of  a  long  line  of  illustrinus 
ancestors,  on  botli  sides  of  his  house,  eminent 
in  the  legal  profession  as  well  as  in  politics 
and  public  life.  His  father,  Charles  L.  Boalt, 
was  a  lawyer  of  large  practice  and  high  repu- 
tation in  northern  Ohio.  His  mother  was  a 
daughter  of  Roger  Griswold,  a  great  jurist  in  his 
dav.  and  Secretary  of  War  under  John  .\dams  ; 
his  great-grandfather.  Matthew  Griswold,  was 
Governor  of  Connecticut  and  President  of  the 
convention  of  that  state  which  accepted  the 
Constitution  of  the  United  States;  his  great 
great-grandfather.  Roger  Wolcott.  a  signer  of 
the  Declaration  of  Independence;  his  great  un- 
cle, Matthew  Griswold,  was  Chief  Justice  of 
the  state  of  Connecticut,  and  his  great  uncle, 
I"!l)enezer  Lane,  was  for  a  long  jteriod  Chief 
Justice  of  the  state  of  Ohio. 

When  the  county  of  Wiiite  Pine  was  formed 
'Uil  <if  L;mclir  county.  Judge  Bealty,  now 
Chief  Justice  of  the  Supreme  Court  of  Cali- 
fornia, was  Judge  of  the  Sixth  Judicial  dis- 
trict. Lander  county.  Nevada.  He  resigned 
lo  take  the  office  of  Judge  of  the  new  county 
of  White  Pine,  and  Judge  Boalt  was  appointed 
lo  fill  his  unexnired  term,  upon  the  unani- 
mous request  of  the  bar  of  .Austin.  .At  the 
expiration  of  his  term  of  office  he  moved  to 
San  Francisco.     He  has  never  since  held,  nor 


786 


History  of  the  BeiicJi  and  Bar  of  California. 


been  an  aspirant  for  any  office.  While  de- 
voting his  time,  however,  exckisively  to  his 
profession,  he  has  always  evinced  an  active 
interest  in  politics,  and  upon  all  the  leading 
issues  of  the  day  he  has  taken  a  prominent 
place.  With  his  pen  and  in  public  speeches 
he  has  contributed  much  to  the  formation  of 
public  sentiment.  An  article  published  by  him 
in  the  Overland  Monthly  in  November,  1888, 
on  the  silver  question — a  masterly  and  ex- 
haustive treatise  on  that  intricate  political 
prol)lcm — has  been  largely  quoted  from  by 
the  leading  statesmen  of  the  dav. 

He  read  a  paper  on  the  Chinese  question  be- 
fore the  Berkeley  Club  in  August,  1877,  in 
which  he  favored  the  exclusion  of  the  Chi- 
nese race,  as  a  policy  necessary  to  the  per- 
petuity of  our  form  of  government,  and  the 
advancement  of  our  best  interests.  In  this 
paper  he  showed  conclusively  that  the  Cau- 
casian and  Mongolian  races  are  non-assimilat- 
ing, and  cannot  live  together  harmoniously 
on  the  same  soil,  unless  one  be  in  a  state  of 
servitude  to  the  other.  To  him  is  largely  due 
the  agitation  of  the  question  of  Chinese  im- 
migration in  the  California  legislature  of  1877- 
78.  which  culminated  in  the  passage  of  an  act 
calling  for  a  popular  vote  to  test  the  views  of 
the  people  of  the  State  of  California  on  the 
Chinese  question.  Hon.  Creed  Haymond,  then 
in  the  State  senate,  proposed  the  act  and  re- 
ferred to  this  paper  of  Judge  Boalt's  as  its 
source. 

Judge  Boalt  came  to  San  Francisco  in  1871. 
and  soon  thereafter  the  law  partnership  of 
Estee  &  Boalt  was  formed,  which  continued 
in  existence  until  1879,  when  it  was  dissolved 
by  mutual  consent.  Judge  Boalt  then  retired 
for  a  time  from  practice,  and  with  his  family 
went  to  Europe,  where  he  spent  about  two 
years  in  travel.  Returning  to  San  Francisco, 
he  opened  an  office  alone. 

On  the  first  of  April,  1889,  Judge  Boalt 
formed  a  nartncrship  with  Hon.  John  Garber 
and  Thomas  B.  Bishop.  The  firm  of  Gar- 
ber, Boalt  &  Bishop  was,  in  the  estimation  of 
some  sound  judges,  the  strongest  on  the  Pa- 
cific coast.  It  was  dissolved  in  1895  when 
Judge  Boalt  retired  from  practice. 

Judsre  Boalt  is  a  man  of  fine  presence,  l'^c- 
nial  in  disposition  and  universally  beloved  by 
his  associates.  He  is  a  leading  light  in  both 
the  Bohemian  and  Union  Clubs.  His  home 
since  he  came  to  California  has  always  been 
in  Oakland.  He  has  a  family,  and  a  consid- 
erable fortune. 


A.  E.  BOLTON. 

.■\.  E.  Bolton  was  l)orn  in  185J  in  Cleveland. 
Ohio,  of  plain  Yankee  parents.  At  the  age  of 
six  years,  his  parents  moved  upon  a  farm  near 
Cleveland,  where  he  got  seven  months  of  good 
solid  hard  work,  and  five  months  of  old  fash- 
ioned district  schooling.  He  had  then  reached 
the  age  of  eighteen  years.  At  that  time  his 
father  died,  and  within  ninety  days  thereafter 
he  bid  goodbye  to  the  farm  and  enrolled  in  the 
preparatory    department     of    Obcrlin     College. 


There  he  studied  as  hard  as  he  had  worked  on 
the  farm.  The  sudden  change  from  ovei^work 
on  the  farm  to  over-study  greatly  impaired  his 
heallli.  His  physicians  informed  him  that  he 
must  leave  school,  forever  abandon  books  and 
lead  a  farm  life,  or  wholly  an  outdoor  life. 
L  nder  their  advice  he  went  to  Denver,  Colo- 
rado, where  he  fully  regained  his  health.  He 
then  read  law  in  the  office  of  Messrs.  France 
&  Rodgcrs,  leading  practitioners  of  Denver 
at  that  time.  In  1875  he  came  to  California, 
and  in  1876  commenced  the  practice  of  the  law 
at  Santa  Cruz.  He  remained  there  for  a  num- 
ber of  years.  During  most  of  the  time  he  held 
the  position  of  city  attorney.  While  in  Santa 
Cruz  he  met  Hon.  J.  A.  Barham,  who  was 
then  a  practitioner  at  that  bar,  and  they  became 
and  have  always  remained  fast  friends.  In 
1880  he  had  overcome  the  first  struggle  of  his 
professional  life,  and  made  for  himself  a  lead- 
ing place  at  the  bar  of  Santa  Cruz.  His  in- 
come then  warranted  his  fulfilling  a  long-over- 
due promise,  and  he  married  Miss  May  Wil- 
cox of  Cleveland,  Ohio. 


Not  satisfied  witli  the  opjiortunities  for  the 
future  in  Santa  Cruz,  he  moved  to  San  Fran- 
cisco in  1884.  In  the  meantime  his  friend,  Hon. 
J.  A.  Barham,  had  located  at  Santa  Rosa,  and 
with  a  large  and  lucrative  practice,  was  in 
failing  health.  At  his  earnest  solicitation  Mr. 
Bolton  moved  to  Santa  Rosa  and  joined  him. 
A  partnership  was  formed  under  the  name  of 
Barham  &  Bolton,  which  became  widely  known 
in  that  community,  and  much  important  liti- 
gation was  conducted  by  them.  Later  Mr. 
Barham's  son  being  admitted  to  practice.  Mr 
Bolton  returned  to  San  Francisco,  leaving  a 
valuable  practice  to  Mr.  Barham  and  his  son. 
Later  Mr.  Barham  entered  the  field  of  politics, 
and  for  many  years  served  as  a  member  of 
congress   from   his   district. 

In  San  Francisco  Mr.  Bolton  became  asso- 
ciated with  Mr.  Philip  G.  Galpin,  who  for  many 
years  had  been  recognized  as  one  of  San 
Francisco's  foremost  practitioners.  The  firm 
of  Galpin  &  Bolton  fill  an  important  legal  cir- 
cle. Mr.  Bolton  has  never  shown  any  desire 
for    social.    ])olitical    or    fraternal    distir^tion. 


Nicholas  Bo^vden 


History  of  the  Bench  and  Bar  of  California. 


789 


He  has  never  wavered  from  the  purpose  he 
formed  back  on  the  Ohio  farm.  All  his  ener- 
gies have  lieen  bent  to  the  one  purpose  of  being 
an  able,  painstaking  and  honored  lawyer. 


A.  G.   BOOTH. 


Andrew  George  Booth  was  born  in  New 
Hampshire  in  1845.  He  is  a  graduate  of  Am- 
herst College,  Massachusetts,  his  preparatory 
course  having  been  taken  at  Kimball  Union 
Academy,  Meriden.  New  Hampshire.  In  the 
year  1869  he  came  to  California,  and,  in  the 
office  of  Andrew  J.  Gunnison,  at  San  Fran- 
cisco, completed  his  legal  studies  which  he  had 
begun  in  his  native  state.  In  the  following 
year  he  was  admitted  to  the  bar.  Practicing 
alone  until  1874,  he  then  became  associated 
with  the  veteran  just  named,  under  the  stj'lc 
of  Gunnison  &  Booth.  This  firm  has  since  con- 
tinued to  the  present  day.  Mr.  Walter  J. 
Barnett  became  a  member  in  1895.  It  is  one 
of  the  very  oldest  law  firms  in  the  State,  and 
has  long  been  occupied  with  a  varied  and  val- 
uable business — that  of  street  railroad  com- 
panies; the  affairs  of  the  California  Safe  De- 
posit and  Trust  Company,  in  whose  fine  build- 
ing their  offices  are  located ;  many  corporations, 
and  a  large  probate  practice. 

Mr.  Booth,  in  addition  to  an  active  law  busi- 
ness, has  been  prominent  in  politics,  and  in 
matters  of  public  concern.  He  was  a  member 
of  the  assembly  at  the  twenty-fifth  session, 
1883.  and  the  extra  session  of  1884.  The  leg- 
islature was  heavily  Democratic  in  both 
branches.  Mr.  Booth  led  the  Repul)lican  mi- 
nority in  the  assembly.  He  was  ready  and  ju- 
dicious in  discussion,  and  won  a  high  reputa- 
tion for  watchfulness  and  wisdom  as  a  legisla 
tor. 

Mr.  Booth  has  done  his  party  good  service 
in  State  and  municipal  conventions,  and  on  the 
I)latform,  but  probably  most  in  council.  He 
is  a  thoughtful,  deliberate  man,  one  of  the  class 
who  make  the  fewest  mistakes.  He  has  been 
a  trustee  of  the  State  Library,  was  a  mem- 
ber of  the  board  of  freeholders  that  framed 
the  nroposed  city  charter  for  San  Francisco 
in  1886,  and.  after  having  been  first  vice-presi- 
dent, is  nmv  president  of  the  leading  Reuub- 
lican  club  of  the  State,  the  Unif)n  League  Club 
of  San  Francisco.  He  is  Past  Cirand  Chan- 
cellor 01  the  Knights  cf  Pvthins,  and  is  ad- 
vanced and  influential  in  the  Masonic  order. 
During  the  remembered  tour  to  the  Triennial 
Conclave  at  \Vashin<Tton,  D.  C.  in  1889.  he 
was  Commander  of  Golden  Gate  Cnmmrindery, 
Kniglit   Templar. 


WAL'i"b:R   ]".(  )KI)\\i:i.L. 

This  gentleman  was  born  on  a  f:inn  in  Cal- 
houn countv,  Michigan,  in  i8;8.  He  was  edu- 
cated at  the  common  schools  and  at  Olivet 
College  in  that  state.  .After  considerable  busi- 
ness experience  he  sliulicd  law  at  Lansing, 
and  was  there  granted  a  license  tn  i>raclic<' 
by  the  State  Snnremc  Court. 

Mr.    Bordwell    came    to    C";ili ti irnin    in    :889. 


locating  at  Los  Angeles,  and  has  always  since 
lived  there,  acquiring  a  fine  business  and  at- 
taining professional   prominence. 

In  1883  Mr.  Bordwell  married  Miss  Marv 
E.  Willits.  daughter  of  Hon.  Edwin  Willits, 
then  member  of  congress  from  the  Second 
district  of  Michigan.  The  fruit  of  this  union 
is    a    daughter,    born    in    1890. 


NICHOLAS   BOWDEN. 

Nicholas  Bowden  was  born  in  Ireland,  forty- 
eight  years  ago,  and  came  to  America  with  his 
parents  while  yet  an  infant.  His  family  set- 
tled in  Cooperstown,  New  York,  where  he 
spent  his  youth  and  acquired  such  education 
as  the  public  schools  of  those  days  afforded. 
At  the  age  of  fifteen  he  left  school  to  enter 
the  world  of  action,  and  there  complete  his 
education  in  the  great  university  of  practical 
experience,  where  he  learned  to  do  by  doing. 

In  1869  young  Bowden  decided  to  leave  New 
York,  turned  his  face  westward,  and  located 
at  Evansville,  in  Southern  Indiana,  where  for 
several  years  he  filled  responsible  positions  as 
accountant,  cashier  and  manager  for  two  of  the 
principal  commercial  houses  of  that  city.  Sub- 
sequently he  assumed  the  management  of  the 
Daily  Courier,  one  of  the  leading  newspapers 
of  Indiana,  took  an  active  part  in  state  poli- 
tics and  helped  to  direct  the  public  affairs  of 
the  state,  until  1877,  when  he  found  it  nec- 
essary to  seek  a  milder  climate.  After  vis- 
iting Colorado  and  several  sections  of  Cali- 
fornia, he  went  to  San  Jose.  A  few  months 
Slay  in  the  Garden  City  brought  him  good 
health,  and  the  conviction  that  the  congenial 
climate  and  superior  social  conditions  of  the 
Santa  Clara  Valley  were  as  nearly  perfect  as 
it  was  possible  to  find,  and  he  decided  to  make 
San   Jose   his   permanent   home. 

Later  in  the  same  year  Mr.  Bowden  took 
the  management  of  the  Daily  Herald,  and  for 
three  years  conducted  it  with  skill  and  vigor. 
With  that  force  and  energy,  characteristic  of 
the  man,  he  elevated  the  standard  of  the  news- 
paper, and  widened  its  infiuence,  until  it  be- 
came a  power  in  Democratic  circles,  both 
local  and  State,  and  placed  it  upon  a  firm, 
political  and  financial  basis. 

Mr.  Bowden  always  had  .1  strong  loaning 
towards  the  law.  and  in  the  winter  of  1880- 
81  he  took  up  the  study  and  finished  his  read- 
ing in  the  office  of  Judge  Lawrence  .\rcher  in 
i88j.  Immediately  after  his  admission  to  the 
Supreme  Court,  in  November  of  (lie  latter 
year,  a  copartnership  was  formed  between 
Judge  Archer  and  himself,  which  continued  for 
ten  years.  His  jiresent  office,  rooms  45.  46. 
47.  -48  and  49  Rea  Building,  at  the  corner  of 
Santa  Clara  and  Market  streets,  in  the  city 
of  .San  Jose,  are  models  of  convenience,  per- 
fect in  their  appointments,  and  e(|uipned  with 
one  of  the  best  working  libraries  in  the  State. 

On  October  4,  i88.^  Mr.  Bowden  married 
Miss  Sallie  Trimble,  daughter  of  the  late  John 
Trimble.  There  are  five  children  of  this  mar- 
riage, four  bovs  and  one  girl.  The  Howflen 
lionu'.    the   residence   of   the    f.imilv.    on    "Thr 


790 


History  of  the  Bench  and  Bar  of  California. 


Alaiiioda,"  is  one  of  the  most  beautiful  in  the 
valley. 

During  Mr.  Bowden's  residence  in  Califor- 
nia he  has  always  taken  a  citizen's  interest  in 
local  and  State  politics,  but  is  in  no  sense  a 
politician,  and  has  never  been  an  applicant 
or  candidate  for  office.  From  the  very  begin- 
ning of  his  career  as  a  lawyer  he  has  enjoyed 
a  lucrative  practice.  He  has  been  engaged  in 
many  of  the  principal  civil  and  probate  cases, 
not  only  in  Santa  Clara  county,  but  through- 
out the  State,  and  has  been  on  one  side  or  the 
other  of  much  of  the  important  litigatioii  of 
Santa  Clara  and  adjoining  counties,  during 
the   last   eighteen   years. 

Mr.  Bowden  is  the  President  of  the  Santa 
Clara  County  Bar  Association,  and  has  been 
at  its  head  since  its  organization.  He  is  also 
a  trustee  of  the  San  Jose  Law  Library  and  its 
present   Treasurer. 


E.   C.   BOWER. 


H.  C.  Bower  was  born  in  Cuthbcrt,  Ga.  His 
great  grandfather  was  a  sculptor  and  resided 
in  Providence,  R.  L,  in  1776.  His  grandfather, 
Lsaac  Bower,  was  a  merchant,  and  moved  to 
Georgia  in  1809.  Lsaac  E.  Bower,  the  father 
of  E.  C.  was  a  prominent  lawyer  of  Georgia 
from  1S50  to  the  time  of  his  death  in  187,^. 


E.  C.  Bower  was  the  fifth  son.  In  1867. 
when  seventeen  years  old,  he  was  deputy 
United  States  internal  revenue  collector  for 
a  sub-district  of  Georgia.  He  was  admitted 
to  the  bar  in  1868,  when  a  little  over  eighteen 
years  old.  In  1871  he  was  a  delegate  to  the 
Democratic  state  convention  in  Georgia.  In 
1872  he  was  alternate  delegate  to  the  national 
Democratic  convention  at    r-5altimore.     He  was 


a  delegate  to  the  St.  Louis  Democratic  conven- 
tion of  1876,  which  nominated  Tilden  and 
Hendricks  (a  distinguished  honor  for  a  young 
man,  when  Georgia  Democratic  leaders  were 
striving  lor  the  distinction),  and  having  as  as- 
sociates Hon.  G.  M.  Smith,  the  Governor  of 
Georgia,  Hon.  Rufus  E.  Lester,  P.  M.  B. 
Young,  Mark  H.  Blanford  and  John  L  Hall, 
with  Hon.  Patrick  Walsh,  afterward  United 
States  senator,  as  secretary  of  the  delegation. 
In  1877  he  was  nominated  state  senator  and 
was  elected  w'ith  but  little  opposition.  During 
his  four  years'  term  in  the  Georgia  senate  there 
were  two  impeachment  trials  of  state  officers, 
in  which  he  took  a  prominent  part.  In  1879 
he  married  Miss  Harriet  S.  Daffin,  of  Georgia, 
by  whom  he  has  had  eight  children. 

After  his  marriage  he  took  no  further  part 
in  politics,  but  devoted  his  time  to  his  pro- 
fession. He  was  considered  a  successful  law- 
yer in  Georgia,  as  the  many  decisions  in  the 
Supreme  Court  reports  of  Georgia,  in  which 
he  was  counsel,  will  attest.  In  1884  he  was 
mayor  of  Blakely,  Georgia,  where  he  then 
resided,  and  a  year  or  so  prior  was  master  of 
the  Masonic  lodge  of  that  place. 

Mr.  Bower,  in  1886,  moved  from  Georgia  to 
Los  Angeles,  Cal.,  where  he  has  since  resided. 
In  California  he  has  taken  no  part  in  politics, 
except  in  1894,  when  he  was  the  Democratic 
candidate  for  district  attorney  for  Los  An- 
geles county,  ana  went  down  to  defeat  with 
the  balance  of  his  ticket.  He  has  practiced 
law  in  Los  Angeles  since  his  residence  there. 

His  practice  in  the  Superior  Court  of  that 
county  has  met  with  varied  success.  But  the 
Supreme  Court  reports  of  the  State  show 
many  questions  presented  by  him  in  which  his 
views  prevailed.  A  few  of  these  maj'  be  men- 
tioned. The  case  of  Holmes  v.  Heathun  is 
one  in  which  the  question  of  homestead  rights 
was  raised,  and  the  lower  court  was  reversed. 
In  Marriner  v.  Dennison  (which  was  twice  ap- 
pealed by  defendant)  the  last  judgment  was 
reversed,  on  the  ground  that  it  was  against  the 
preponderance  of  evidence ;  there  being  a  con- 
flict of  evidence  in  the  case — something  un- 
usual in  our  Supreme  Court  decisions.  In 
Royal  V.  Dennison  the  case  was  decided  against 
liim  and  a  new  trial  refused,  and  the  decision 
in  department  affirmed  the  judgment  of  the 
lower  court.  On  a  hearing  in  bank  the  court 
reversed  the  department  and  the  lower  court. 

The  question  as  to  whether  there  could  be 
more  than  one  original  contractor  in  a  build- 
ing contract  was  first  raised  by  him  in  La 
Grail  &  Craft  v.  Mallord.  and  he  was  sus- 
tained. 

While  the  litigation  conducted  by  Mr.  Bower 
has  not  been  of  State  notoriety,  yet  the  prin- 
ciples involved  have  been  important  and  often 
original,  and  the  conduct  of  his  cases  has 
shown  the  work  of  an  expert  in  the  profes- 
sion. 

There  is,  perhaps,  no  lawyer  in  the  State 
who  is  better  posted  in  the  practice  of  the 
courts,  or  who  is  more  familiar  with  the  pro- 
visions of  the  codes,  and  the  decisions  of  the 
Supreme    Court. 


History  of  the  Bench  and  Bar  of  California. 


791 


F.   S.   BRITTAIX. 

Frank  Sniitli  Brittain  is  a  native  of  Phila- 
delphia. He  was  educated  as  a  civil  engineer, 
and  for  a  few  years  practiced  as  such  l)oth 
in  railroad  and  municipal  work.  While  thus 
engaged  he  was  required  to  make  a  special 
study  of  the  land  and  commercial  laws  of 
Spain,  Mexico  and  Texas.  Under  these  cir- 
cumstances the  transition  from  the  engineer 
to  the  attorney  was  natural.  Under  the  tute- 
lage of  one  of  the  most  eminent  lawyers  in 
Te.xas  he  prepared  for  the  bar  and  was  admit- 
ted to  practice  in  that  State.  In  1894  he  came 
to  San  Francisco,  since  which  time  he  has 
been  engaged,  either  as  counsel  or  in  assist- 
ing counsel,  in  much  of  the  important  litiga- 
tion which  has  occupied  the  attention  of  the 
courts. 

On  the  day  war  was  declared  with  Spain, 
Mr.  Brittain  tendered  his  services  in  any 
capacity  to  the  Governor  and  to  the  secretary 
of  war.  By  the  latter  he  was  ordered  to  appear 
before  a  board  of  army  officers  for  examma- 
tion  for  a  commission  in  one  of  the  three 
regiments  of  volunteer  engineers.  He  there- 
upon applied  for  a  second-lieutenancy,  but 
as  a  result  of  his  examination,  he  was.  by 
the  President,  commissioned  first  lieutenant  in 
the  Second  regiment  of  engineers.  His  great 
regret  is  that  his  command  was  not  on  the 
firing  line.  It  had,  instead,  nearly  a  year's 
hard  service  in  Honolulu.  During  that  time 
Mr.  Brittain  was  examined  by  Chief  Justice 
Judd,  and  one  of  his  associates,  and  was 
admitted  to  the  bar  of  the  Hawaiian  Repub- 
lic. In  the  military  service  he  was  the  only 
judge-advocate  in  the  district  of  Hawaii,  and 
he  was  continually  on  duty  as  such,  as  well  as 
acting  as  the  legal  adviser  of  the  military 
authorities,  during  the  period  he  was  in  Hono- 
lulu. 

Prior  to  going  into  the  military  service,  Mr. 
Brittain  was  first  the  managing  clerk  of  the 
then  large  offices  of  Dolmas  &  Shortridge, 
and  was  afterwards  ;i  niembor  of  the  firm  of 
Shortridge,  Beatty  &  Brittain.  The  busi- 
ness of  the  firm  was  continued  in  the  old  name 
until  Mr.  Brittain's  return  from  Honolulu, 
when  he  withdrew  from  the  partnership  and 
opened  offices  alone.  Fie  believes  in  the  relig- 
ion of  unremitting,  painstaking  lalxir.  ,ind 
attributes  what  success  he  has  had  in  the  law, 
largely  to  the  methods  of  thought  in  which 
he  was  drilled  in,  accpiiring  his  eclucation  as  an 
engineer. 

JULIUS   BROUSSI'.AU. 

Mr.  Bi-ousscau  was  born  at  .Maloiu'.  iM-;ink- 
lin  county.  New  York,  on  December  17.  18^4. 
In  his  infancy  his  parents  moved  to  Monroe 
county,  in  lh;it  state,  where  he  was  educated  in 
the  public  schools  and  in  Fima  Seminary,  and 
lived  there  until  he  reached  the  age  of  twenty- 
five  years.  .After  teaching  school  for  eight  or 
nine  years,  he  went  to  the  city  of  I'lint.  Mii-hi 
gan,  and  rearl  law  in  the  office  of  Mmi  Wil 
Ham  Newell.  District  Judge.  In  the  fall  of 
1861  he  was  admitted  to  the  bar  of  the  Supreme 
Cotu't  of  Michigan,  and  eomineneed  jiractice  at 


Flint.  After  two  years  he  removed  to  the  city 
of  Saginaw,  where  he  practiced  with  good  suc- 
cess for  about  seven  years.  In  this  period 
he  served  two  terms  as  city  attorney.  His 
health  becoming  impaired,  he  removed,  in  the 
spring  of  1870,  to  Kankakee,  Illinois.  There 
he  had  another  seven  years  of  professional 
prosperity,  at  the  end  of  which  time  he  moved 
again,  for  the  same  cause  as  before.  He  was 
then  in  his  second  term  as  city  attorney,  but 
resigned,  and  started  with  his  family  for  Cali- 
fornia. 

Settling  at  Los  Angeles'  on  the  i6th  of  Jan- 
uary, 1877,  Mr.  Brousseau  shortly  afterwards 
entered  into  partnership  with  Hon.  Volney  E. 
Howard,  and  the  latter's  son,  Frank  Howard, 
the  firm  name  being  Howard,  Brousseau  & 
Howard.  The  association  of  these  gentlemen 
was  dis.solved  when  Judge  Howard  went  on 
the  bench  three  years  later.  Mr.  Brousseau 
then  practiced  alone  until  May.  1886.  Ex-Judge 
David  P.  Hatch,  then  moving  to  Los  Angeles 
from  Santa  Barbara,  the  firm  of  Brousseau 
&  Hatch  was  formed,  and  CDUtinued  until 
1882. 

Mr.  B.rousseau's  practice  in  this  State  has 
been  in  the  civil  line,  and  of  recent  years  he 
has  given  much  attention  to  water  litigation, 
his  practice  having  been  attended  with  nutch 
success,  although,  in  Michigan,  he  was  chiefly 
distinguished  for  his  ability  in  criminal  cases. 

His  aged  parents  from  the  East  joined  him 
at  Los  Angeles  in  1883.  He  bears  his  father's 
full  name,  and  his  mother  was  Miss  Marienne 
Jarvis.  Both  were  of  French  ])irth.  His  father 
is  still  living,  at  the  age  of  eighty-eight  years. 

Mr.  Brousseau  married  Miss  Carrie  Yakeley 
at  Ypsilanti,  Michigan,  in  the  fall  of  i860.  The 
ladv  is  a  native  of  New  York,  her  father  being 
English,  her  mother  German.  They  have  two 
sons  and  two  daughters,  all  grown.  The  eldest 
daughter.  Miss  Kate,  after  graduating  from 
the  State  Normal  School  at  San  Jose,  traveled 
in  Europe  for  a  year  and  a  half,  and  became 
proficient  in  the  French  and  German  languages. 
She  has  attended  the  Lhiiversity  of  Paris 
for  five  vears.  and  is  now  one  of  the  faculty 
of  the  State  Normal  School  at  Los  .\ngeles. 
The  other  daughter  is  accomplished  in  nnisic. 
The  sons.  Edward  and  Rov.  are  graduates  of 
the  Los  .Angeles  High  School.  Edward  has 
care  of  his  father's  orange  orchard  at  Redlands. 
and  Roy  is  in  the  office  with  his  father  and 
fitting  himself  as  an  illustrator  and  designer. 

Mr.  Brousseau  is  a  Mason  of  the  Scottish 
Rite,  thirty-second  degree,  and  has  been  Mas- 
ter of  Rose  Cross  Lodge  of  Los  .\ngeles.  In 
politics  he  is  a  Democrat,  and  has  been  the 
candidate  of  his  parly  for  Superior  Judge, 
rutuiing  against  gre.at  political  odds,  and  fail- 
ing of  election.  He  would  make  a  most  excel- 
lent Judge,  being  of  balanced  mind,  of  judicial 
temnerament.  and  well  grounded  in  legal 
science.  He  is  still  .active  and  jM-osperous  at  the 
bar.  and  is  imivers.illy  i-sleenied  as  a  m.in  and 
eiti/en. 

U.  W.  BROWN. 

•Mr.  I'.rown  was  born  Novemlier  24.  i8(io,  \\\ 
l)'l\;ill)    eounlv.     Missoiu-i.       lb'    e.nne    across 


792 


Hisiury  of  the  Bench  and  Bar  of  Califonii 


the  plains  with  his  parents  in  1865  to  Oregon, 
and  thence,  in  1S67.  to  Colusa  county,  Califor- 
nia, where  he  has  since  resided.  He  was  raised 
on'  a  farm;  attended  the  public  schools  and 
worked  in  harvest  fields  in  summer  to  defray 
his  expenses  at  college  in  winter.  He  was 
graduated  from  Pierce  Christian  College  in 
1882.  with  the  degree  of  B.  S.  et  L. 

Mr.  Brown  taught  public  school  for  four 
years.  He  was  admitted  to  practice  before 
the  Supreme  Court  of  this  State  in  1887.  He 
located  at  Colusa,  and  has  there  practiced  his 
profession  ever  since  with  unvarying  success. 
He  has  one  of  the  best  working  libraries  in 
Northern  California.  He  is  identified  with  va- 
rious business  interests  in  Colusa  county,  and 
has  been  successful  in  business  as  in  law 
practice.  He  was  married  to  Miss  Emma 
Maurice  Lovelace  in  1889.  They  have  four 
children. 


large  as  to  compel  iiim  to  remove  to  the  Me- 
tropolis, with  his  family,  consisting  of  a  wife 
and  four  chudren.  Continued  success  has  at- 
tended Iiim  in  San  Francisco,  and  promises  to 
follow  him  to  the  end. 


i).\xip:l  w.  burchard. 

Daniel  W.  Burchard  is  a  native  of  the  state 
of  Missouri,  and  was  born  about  forty-five 
years  ago.  His  father  was  one  of  the  pioneer 
ministers  of  the  Methodist  Church,  and  ar- 
rived in  California  witli  his  family  when  our 
subject   was  a  child. 

Mr.  Burchard  obtained  a  good  classical  and 
legal  education  which  enabled  him  to  commence 
practice  as  soon  as  he  arrived  at  his  majority. 


He  located  first  in  Hollister,  San  Benito 
county,  where  he  was  soon  selected  as  city 
attorney.  After  a  few  years  he  felt  impelled 
to  remove  to  a  larger  field,  and  went  to  San 
Jose.  There  he  soon  entered  upon  a  suc- 
cessful career  at  the  bar.  For  six  years  he 
was  connected  with  the  district  attorney's  of- 
fice, during  which  time  the  interests  of  the 
county,  civilly,  were  faithfully  guarded,  and 
society  also  well  protected  from  criminals. 
.After  leaving  his  official  duties,  Mr.  Burchard 
opened  up  offices  as  a  general  practitioner,  and 
in  addition  to  civil  business,  achieved  a  state 
reputation  as  a  criminal  lawyer.  Quite  recenth' 
his    practice   outside    of    San    Jose   became    so 


JAMES  H.  BUDD. 


Among  the  members  of  the  bar  of  Stockton 
whose  talents  have  brought  them  name  and 
fame,  none  have  been  more  distinguished  than 
this  gentleman.  The  e.x-Governor  was  born 
at  Janesville,  Wisconsin,  May  18,  1851,  and  is 
a  son  of  Superior  Judge  Joseph  H.  Budd.  He 
accompanied  his  parents  to  California  in  1859, 
and  since  their  location  in  Stockton,  in  i860, 
he  has  always  made  that  city  his  home.  There 
he  commenced  his  education,  and  from  1866 
to  1869  attended  the  Britan  College  School.  He 
next  attended  the  State  University  and  was 
graduated  there  in  the  class  of  1873.  The 
profession  of  law  w-as  from  an  early  age 
marked  out  for  him  by  his  parents'  wishes 
and  his  own  inclinations,  and  in  1869  he  com- 
menced preparations  therefor  by  reading  in 
his  father's  office.  His  legal  studies  were  kept 
up  during  the  progress  of  his  college  course, 
and  in  1874.  the  next  j-ear  after  graduation,  he 
was  associated  in  practice  with  his  father  for 
some  time,  and  afterward  with  Judge  Swin- 
nerton.  Since  the  dissolution  of  the  latter 
partnership  he  has  had  no  colleague  in  his 
law  practice.  In  1873-74  he  served  as  deputy 
district  attorney  under  A.  W.  Roysden.  In 
1876  he  received  the  unanimotis  nomination 
of  the  Democratic  convention  for  assembly- 
man, but  declined.  In  1882  he  was  nominated 
b}^  the  DeiTiocratic  convention  for  congress,  and 
undertook  what  was  generally  considered  a 
hopeless  race.  It  assumed  a  different  aspect, 
however,  under  the  vigor  of  his  canvass,  and 
when  it  was  found,  after  election,  that  he  was 
the  fortunate  candidate.  luany  persons  who 
thought  that  the  Republican  nomination  meant 
election  were  surprised.  He  was.  however, 
the  first  Democrat  ever  elected  to  congress 
from  that  district. 

As  a  member  of  the  national  house  of  rep- 
resentatives, he  served  on  the  committee  on 
education  and  the  committee  on  invalid  pen- 
sions. He  introduced  and  carried  through 
house  bill  No.  100.  in  the  interest  of  the  set- 
tlers on  the  Moquelemos  grant,  a  measure 
which  had  been  pending  for  j-ears.  and  which 
was  carried  in  the  house  only  by  earnest  and 
untiring  labor.  He  also  secured  an  unusually 
large  appropriation  for  that  district,  and  the 
money  for  the  dredger  work  on  the  Stockton 
channel.  He  brought  about  the  passage  of 
an  amendment  to  the  Indian  appropriation  bill, 
making  the  Indians  amenable  to  state  and 
territorial  laws.  He  fought  for  and  secured 
a  special  date  for  the  consideration  of  the 
Chinese  bill  of  1884.  after  its  friends  generally 
had  considered  it  lost.  He  took  an  active 
part  in  the  discussion  on  Chinese  matters,  on 
the  interstate  commerce  bill,  on  the  principal 
appropriation  bills,  and  for  fortification  meas- 
ures.     The  i)ath  of  a  congressman   during  his 


James  H.  Budd 


History  of  the  Bench  and  Bar  of  California. 


'95 


first  term  in  attempting  to  secure  recognition 
is  generally  a  hard  one,  but  many  veterans 
did  not  come  out  of  that  congress  with  so 
good  a  record.  During  the  progress  of  his 
term  the  State  of  California  was  reapportioned, 
and  the  newly  constructed  district  of  which 
San  Joaquin  county  formed  a  part  was  so 
composed  as  to  make  it  as  strongly  Demo- 
cratic as   it  had  before  been   Republican. 

When  the  next  congressional  convention 
met  he  was  unanimously  nominated,  and  the 
convention  adjourned  but  Mr.  Budd  felt  that 
a  proper  regard  for  his  own  interests  required 
that  he  should  forego  the  certain  re-election 
which  his  nomination  implied,  and  declined 
to  accept  the  proffered  honor.  This  necessi- 
tated the  reconvening  of  the  delegates,  and 
a  second  convention  was  called,  resulting  in 
another  unanimous  nomination  of  Mr.  Budd, 
and  the  appointment  of  a  committee  to  urge 
upon  him  the  necessity  of  his  acceptance. 
The  committee  failed  of  accomplishing  its  ob- 
ject, however,  as  Mr.  Budd  firmly  declined 
to  take  the  nomination.  He  has,  however,  al- 
ways used  his  most  earnest  efforts  for  the  suc- 
cess of  the  Democratic  party.  As  chairman 
of  the  city  and  county  central  committees 
he  carried  San  Joaquin  county  for  the  Demo- 
cracy at  the  general  election  of  1888.  He  was 
six  years  a  trustee  of  the  Stockton  Cil}'  Li- 
brary and  made  it  a  depository  for  ten  years' 
issue  of  public  books  and  documents.  He  gave 
up  the  position  of  trustee  of  the  library  in 
i88g  to  accept  the  office  of  police  and  fire  com- 
missioner of  Stockton.  He  became  connected 
with  the  National  Guard  of  California  as  a 
cadet  at  the  State  University  and  he  was 
graduated  with  the  rank  of  first  lieutenant. 
Since  then  he  has  advanced  rapidly  to  the 
front  and  has  been  major  on  brigade  staff, 
lieutenant  colonel  on  Governor  Trwin's  staff, 
major  of  the  line  and  brigadier  general. 

Mr.  Budd  has  taken  an  active  and  important 
part  in  nearly  every  movement  of  a  public 
character  concerning  his  section  of  the  State 
for  several  years  ;  yet  it  is  in  his  profession  as 
a  lawyer  that  his  real  success  has  been  made, 
and  the  general  recognition  of  this  fact  has 
resulted  in  bringing  him  a  practice  so  ex- 
tended that  an  ordinary  man  could  not  handle 
it.  His  opinion,  once  given  to  client,  has  come 
to  be  regarded  with  much  of  the  esteem  of 
a  verdict  from  a  court,  so  successful  has  been 
his  practice.  He  prosecutes  his  profession  in 
all  the  courts  of  the  land,  having  been  admitted 
to  the  bar  of  the  Supreme  Court  of  the  United 
States  in  1884.  He  is  a  clear  and  rapid  rca- 
soner  and  sound  in  his  conclusions.  His 
strength  of  character  is  well  exhibited  by  his 
declination  of  a  certain  re-election  to  congress 
— something  that  history  is  seldom  called  upon 
to  chronicle.  No  man  in  Central  California 
has  a  larger  circle  of  warm  personal  friends 
than  has  James  H.  Budd.  He  was  elected 
Governor  of  the  State  in  1894,  as  the  Demo- 
cratic candidate,  when  the  Republicans  elected 
every  other  State  officer.  I  lis  term  I'udi'd  in 
January.    1899. 

The  State  has  never  had  a  more  vigilan'j 
or  industrious  chief  magistrate.  He  main- 
tained a  watchful  interest  over  all  public  bodies 


and  institutions,  and  was  constantly  visiting 
them,  keeping  himself  well-informed  as  to  all 
their  needs,  as  well  as  regarded  any  delin- 
quencies or  irregularities. 

It  was  to  Governor  Budd  that  applications 
for  clemency  were  made  in  the  cases  of  Dur- 
rant,  found  guilty  of  the  "crime  of  a  cen- 
tury," and  Worden,  convicted  of  murder  in 
connection  with  the  most  serious  railroad 
strike  known  to  history.  In  those  cases  he 
was  required  to  examine  almost  interminable 
records,  and  he  discharged  his  unpleasant  and 
arduous  work  with  extraordinary  patience  and 
comprehension,  his  judgment  leading  him  to 
commute  the  sentence  of  Worden  from  death 
to  life  imprisonment,  and,  in  the  other  case, 
he   refused   to   interfere. 

His  official  papers  were  characterized  by 
strength  and  exactness  of  statement,  and  gen- 
erally evidenced  his  strong  common  sense  and 
enlightened  judgment.  Upon  his  retirement 
from  the  chair  of  State,  in  January,  1899.  he 
became  the  regular  attorney  for  the  board  of 
State  harbor  commissioners,  whose  office  is 
in  the  Ferry  building,  San  Francisco.  He  has 
an  office  in  the  same  place,  the  duties  of  this 
important  attorneyship  requiring  him  to  spend 
much  of  his  time  in  that  city.  He  is  attached 
to  Stockton  as  he  has  always  been,  and  there 
keeps  his  residence  and  follows  actively  his 
profession. 


WILLIAM  P.  BUTCHER. 

On  the  I4tn  day  of  February,  1854,  William 
Preston  Butcher  was  born  on  a'  small  farm  in 
Camaen  county,  Missouri.  He  was  the  ninth 
of  a  family  of  fourteen  children.  When  he 
was  but  two  years  old  his  father  moved  to 
Laclede  county,  and  settled  down  in  what  was 
then  the  very  heart  of  a  wilderness.  There 
was  not  another  family  living  within  an  area 
of  ten  miles.  He  and  the  older  sons  cleared 
up  and  cultivated  a  small  farm  of  some  eighty 
acres  of  land.  Here  he  lived  with  his  family 
until  the  fall  of  i860,  when  he  died.  He  was 
a  man  of  strict  honesty  and  integrity.  His 
word  was  his  l)ond,  and  passed  current  among 
his  friends  and  neighbors  as  such.  He  incul- 
cated a  love  for  truth  and  honest)'  in  the 
minds  and  hearts  of  his  family,  and  all  who 
knew  him  honored  and  respected  him.  He  was 
a  member  of  the  Baptist  Church  from  early 
youth.  He  would  preach  to  his  neighbors  at 
limes,  after  the  work  on  the  farm  had  been 
disposed  of.  He  accumulated  considerable 
propertv  by  honest  industry,  and  was,  at  the 
time  of  his  death,  in  comfortable  circumstances. 
Two  of  the  three  older  sons  then  living  had 
married  .nul  settled  in  the  immediate  neigh- 
borhood. 

/\boni  this  time,  the  great  civilizcr  of  the 
world  ap|)eared  in  that  localils'  in  the  person 
of  the  school  teacher.  Up  to  this  time  there 
had  been  no  schools  of  any  description  what- 
ever. A  school  was  opened  in  an  old  log 
cabin  which  had  been  used  as  a  blacksmithy. 
It  was  floored  with  puncheons.  Tt  had  but  one 
door  and  no  windows.     It   was  furnished  with 


•96 


History  of  the  Bench  a)id  Bar  of  California. 


rude  benches,  made  of  logs  split  through  the 
center,  hewn  down  smoothh-  on  one  side,  holes 
bored  into  the  other,  in  which  were  inserted 
pins  for  legs.  On  these  benches  sat  the  pupils, 
without  any  support  for  their  backs,  and  pored 
over  Webster's  Elenientarj-  Speller.  It  was 
in  this  hut,  situated  three  miles  from  his  home, 
that  William  attended  his  first  school  in  the 
fall  and  winter  of  i860.  The  term  was  but 
three  months.  This  was  the  first  school  taught 
in  that  neighborhood.  Prior  thereto  the  farm- 
ers had  given  their  entire  attention  to  the  cul- 
tivation of  their  little  farms  and  the  raising 
of  live  stock.  Soon  after  this,  and  before  an- 
other term  of  school  was  commenced,  the 
great  Civil  War  broke  forth  and  threw  the 
whole  country  into  confusion  and  chaos.  This 
portion  of  the  country  had  been  settled  up  with 
people  from  Tennessee  and  Kentucky.  They 
had  an  inbred  antipathy  and  hatred  for  the 
black  man.  And  any  one  who  dared  to  es- 
pouse  his   cause   was   at   once   ostracized,   and 


looked  upon  l)y  his  neighbors  as  even  lower 
than  the  man  whose  cause  he  had  espoused. 
But  notwithstanding  all  this,  and  the  fact  that 
the  father's  brother,  who  lived  in  Wright 
county,  owned  slaves,  this  family  remained  true 
to  the  Union.  And  it  was  the  only  one  that 
did  so,  in  that  whole  neigiil)orhood.  As  a  con- 
sef|uence,  it  became  despised  by  those  whfi 
had  previously  been  its  strongest  friends  and 
best  neighbors.  They  burned  its  fences  to  the 
ground,  destroyed  its  crops  and  killed  and  stolv: 
its  live  stock,  and  threatened  the  lives  of  its 
memiiers. 

'Ihe  three  older  brothers  enlisted  at  the  be- 
ginning of  the  war.  in  the  United  States  .Army, 
and  served  through  the  entire  war.  The  oldest 
of  the  three  was  promoted  to  the  rank  of  ma- 
jor. He  was  wounded  in  the  right  arm  by  a 
bullet  from  the  enemy  in  an  engagement  on 
the   battle-field. 

While  these  were  fighting  the  battles  of  the 
I'nion    on    the    field,    the   mother   and    children 


were  fighting  tlie  battle  of  cold  and  hunger  at 
home.  The  mother  sheared  the  .>heep.  carded 
the  rolls,  spun  the  yarn  and  wove  it  into  cloth, 
and  made  clothes  that  covered  her  children 
during  these  four  long  and  bitter  years  of 
war.  The  trials  and  hardships  of  that  family 
during  that  period,  where  might  made  right, 
where  the  struggle  for  existence  was  against 
))arl)arous  force,  where  there  was  no  law  to 
api)eal  to  for  the  redress  of  wrong,  no  human 
iiand  to  be  lifted  in  behalf  of  this  poor  family, 
or  heart  to  lend  its  sympathy,  cannot  be  told 
in  this  place.  But  alone  in  the  midst  of  mur- 
derous force,  where  the  evil  passions  of  men 
went  unrestrained,  did  this  heroic  woman  fight 
the  battle,  grander  and  nobler  than  ever  fought 
on   the  field  of  carnage. 

Of  course,  there  was  no  such  thing  as  even 
a  thought  of  school  during  these  times.  And 
even  after  the  war  ended,  there  remained  in 
that  country  a  horde  of  skulking  desperadoes, 
known  as  "bush-whackers,"  that  continued  to 
terrorize  the  coimtry  and  prevent  the  return  of 
])eople  to  the  pursuits  of  peace.  As  a  con- 
sequence. William  did  not  go  to  another  school 
until  he  was  fourteen  years  of  age.  By  this 
time  he  had  practically  forgotten  the  lessons 
learned  in  the  former  term  out  of  Webster's 
Elementary  Spelling  Book,  and  had  to  start 
anew.  He  attended  one  other  term  at  this  age. 
of  three  months.  After  this  he  had  the  entire 
care  of  the  family,  his  older  brothers,  who  had 
been  up  to  this  time  single,  became  married, 
and  settled  down  in  the  neighborhood.  Though 
he  did  not  attend  school  any  more  while  at 
home,  he  studied  nisrht  and  morning.  He  would 
build  a  fire  ot  logs  in  the  great  fireplace  at 
night,  and.  after  the  rest  of  the  family  had  re- 
tired to  sleep,  he  studied  his  books  by  the  light 
of  the  fire.  In  this  manner  he  succeeded  in  ac- 
cumulating sufficient  education  to  pass  an  ex- 
amination for  a  certificate  to  teach  school.  He 
taught  his  first  term  at  the  age  of  eighteen 
years,  in  the  same  vicinity  where  he  was  raised. 
Many  of  his  former  playmates  attended  this 
school.  From  this  time  forward  he  taught  from 
three  to  six  months  a  year,  and  attended  school 
the  remainder  of  the  year,  studying  the  higher 
branches  of  education  for  a  period  of  about  ten 
years.  He  also  studied  law  during  this  period, 
and  was  admitted  to  practice  in  that  profession 
in  all  the  courts  of  record  of  that  state  in  1882. 
His  health  beginning  to  fail,  he  was  advised 
by  his  physicians  to  seek  out-door  employment 
in  a  more  even  and  milder  climate.  Soon  after 
this  he  came  to  California.  Having  regained 
his  health,  he  located  in  Santa  Barbara  on  the 
i6th  day  of  October,  1886.  where  he  has  ever 
since  lived,  and  practiced  his  profession. 

On  the  31st  day  of  January.  1887.  Mr. 
Butcher  married  Miss  Laura  Hurtzig,  a  young 
lady  who  was  born  and  raised  in  Forest  Hill. 
Placer  county.  California.  They  have  two  chil- 
dren, a  eirl  of  eleven  and  a  boy  of  nine  years. 

Mr.  Butcher  has  always  been  a  Republican 
in  politics.  He  never  held  an  office  in  his  life, 
nor  received  a  penny  which  he  did  not  earn. 
He  has  a  cheerful  and  happy  disposition,  and 
is  universally  liked  l)y  all  who  know  him  inti- 
matelv. 


History  of  the  Bench  and  Bar  of  California. 


79: 


W.   C.    BL'RXET'J". 

This  is  one  of  ihc  surviving  sages  of  ihe 
early  bar,  and  merits  a  much  more  extended 
notice  than  our  knowledge  and  recollections 
can  furnish  forth.  He  is  still  at  the  bar  in 
San  Francisco,  and  in  good  preservation  of 
mind  and  body. 

We  first  >a\v  Wellington  C.  Burnett  in  Sac- 
ramento, at  the  legislative  session  of  1856; 
and  again  at  the  session  of  1857.  The  legis- 
lature met  annually  in  the  fifties,  and  a  State 
senator's  term  was  two  years.  Mr.  Burnett 
was  senator  at  those  sessions,  representing 
Yuba  and  Sutter  counties.  He  came  to  this 
State  at  a  very  early  day,  and  located  first  at 
Marysville,  where  Stephen  J.  Field  was  then  at 
the  head  of  the  bar.  He  became  one  of  the 
most  prominent  attorneys,  acquiring  a  great 
business,  and  he  was  sent  to  the  State  senate 
by  the  newlj-  organized  Know-Nothing,  or 
Native  American,  parly.  A  man  of  much  nat- 
ural energy,  he  was  in  the  senate  a  useful, 
hard-working  member.  About  two  years  later 
he  removed  to  San  Francisco,  where  he  has 
always  since  lived  and  practiced.  The  men  he 
then  met  at  that  bar  are,  with  a  few  excep- 
tions, no  more.  We  well  recall  his  profes- 
sional activity-  through  the  years  that  fol- 
lowed. In  1870  he  was  elected  city  and  county 
attorney,  and  was  re-elected  three  times,  hold- 
ing for  four  terms,  or  eight  years ;  a  pe- 
riod exceeding  that  of  any  other  incumbent  of 
the  office  before  or  since.  During  the  last 
four  years  of  this  time  he  was  also  a  New 
City  Hall  commissioner  ex  officio,  and  for  the 
last  two  years  also  an  election  commissioner, 
ex  officio. 

Many  men  have  been  prepared  for  the  bar 
in  Mr.  Burnett's  office,  some  of  whom  have  at- 
tained both  fame  and  fortune.  Of  these  lat- 
ter, in  conspicuous  view  at  the  metropolitan 
bar,  is  Colonel  E.  F.  Preston.  Fisher  Ames 
was  also  with  him  for  some  time,  but  was  an 
admitted   attorney   then. 

About  the  3'ear  1895  Mr.  Burnett  was  called 
to  New  York  Cit}',  to  attend  to  some  law 
business  which  he  thought  would  occupy  only 
a  few  weeks'  time.  While  engaged  with  it, 
he  was  employed  by  persons  in  that  city  to  at- 
tend to  other  matters,  and  this  was  followed 
by  other  successive  professional  engagements, 
which  altogether  kept  him  away  from  home, 
and  busv  in  the  great  city  for  over  two  years. 

Mr.  Burnett  is  a  man  of  family.  His  chil- 
dren are  grown,  two  of  them  members  of  the 
bar,  one  of  them  in  practice  with  him.  The 
wife  of  his  youth  is  living,  and  in  good  health 
Mr.  Burnett  is  a  native  of  Connecticut,  and 
sevenly-one  years  of  age. 


R.  CAHHJ.. 

Robinsiin  Cabin  was  born  on  a  farm  in  Car- 
roll county.  Ohio,  April  28,  1828.  Flis  paternal 
ancestors  came  from  the  Emerald  Isle,  while 
those  on  the  maternal  side  were  from  Scot- 
land. He  had  a  fair  education  for  those  times 
— in  comnion  schools,  with  an  academic  course, 
the  latter  received  at  Hagerstown.  Ohio,  not 
far   from   his   birtbitlace. 


Having  a  desire  to  study  law,  but  being  with- 
out means,  he  engaged  in  school  teaching, 
meanwhile  studying  for  the  legal  profession 
as  opportunity  offered.  In  1855  he  was  united 
in  marriage  to  Mary  M.  Cummings,  daughter 
of  Dr.  Thomas  Cunnnings,  a  celebrated  physi- 
cian of  that  part  of  Ohio.  Shortly  afterwards 
Mr.  Cahill.  with  his  young  bride,  emigrated 
towards  the  setting  sun,  locating  at  Kirks- 
ville,  Missouri.  Here,  in  company  with  a  Mr. 
Waldon.  he  published  the  Kirkvillc  Entcr[>rise. 
the  first  newspaper  of  that  county.  In  1858 
he  was  licensed  to  practice  law  in  all  the  courts 
of  record  of  the  state,  and  soon  removed  to 
Cedar  county,  where  he  rapidly  acquired  a  lu- 
crative ])ractice. 

Soon,  however,  the  civil  conflict  disturbed 
all  peaceful  pursuits,  and  the  horrors  of  war 
spread  over  the  land.  Being  naturally  averse 
to  scenes  of  bloodshed  and  carnage,  and  be- 
lieving in  the  peaceful  settlement  of  all  ques- 
tions through  the  courts  or  by  arbitration — 
though  he  sympatliized  with  the  South — he  de- 


termined t(i  take  no  pan  in  the  war.  .Ac- 
cordingly, in  180^,  he  sent  his  family  to  Ohio, 
and  joining  an  emigrant  train,  he  crossed  the 
plains  and  reached  California  without  any 
serious  mischance,  save  the  loss  of  his  fa- 
vorite horse,  which  he  traded  for  a  yoke  of 
oxen. 

At  Ijbeily.  San  Joatpiin  county,  lie  taught 
seliii.  il  for  two  years,  and  at  the  close  of  the 
war  he  returned  to  Ohio,  and  with  his  family 
again  took  up  his  abode  in  Missouri.  He  now 
settled  at  Donii)han.  Ripley  county,  where  he 
I)racticed  his  profession  for  many  years  with 
ni.irked  success.  Here,  in  i8(k).  his  wife  died, 
leaving  him  two  d.iughters.  aged  seven  and 
nine  years. 

In  1872  Mr.  Calnll  w.is  elected  to  represent 
his  county  in  the  general  assembly  of  the  state. 
He  was  re-elected  in  1874.  and  again  in  1876. 
by  a  largely  increased  majority.  At  the  close 
of  his  third  term,  his  health  being  impaired, 
he    renmved    id    Win<Niir.    lleiirv    coniUv.    but 


798 


History  of  the  Bench  and  Bar  of  California. 


his  stay  there  was  brief,  and  in  1881  he  re- 
moved with  his  family  to  California,  settling 
at  Los  Angeles,  where  he  has  since  resided.  He 
did  not,  however,  resume  the  active  practice 
of  his  profession  but  is  spending  the  evening 
of  his  life  in  retirement,  looking  after  his 
private  business  interests.  .His  oldest  daugh- 
ter. Mary  A.  Cahill.  was  married  to  Mr.  Ul- 
rich  Knoch,  the  publisher  of  this  History.  Au- 
gust 2.   1884. 

Mr.  Cahill  still  maintains  his  interest  in  the 
"bench  and  bar,"  and  has  many  acquaintances 
among  the  legal  fraternity.  Several  years  since 
he  served  on  the  grand  jury,  and  was  the 
means  of  calling  attention  to  the  over-crowded 
condition  of  the  penal  institutions  of  Los  An- 
geles county.  In  politics  he  has  always  been 
a   staunch   Democrat  of  the  old   .school. 


JOHN  T.  CAREY. 


General  Carey  was  born  in  Clay  county.  Mis- 
souri. His  father,  the  late  R.  S.  Carey,  of 
Sacramento,  came  to  California  in  1850,  bring- 
ing nis  family.  They  first  settled  in  Solano 
county,  thence  removed  to  Yolo  county,  where 
the  father  acquired  extended  land  holdings.  In 
i860  the  family  moved  into  Sacramento  city, 
where  they  have  ever  since  resided. 

R.  S.  Carey  early  l)ecame  interested  in  agri- 
culture and  stock  raising,  and  was  one  of  the 
founders  of  the  State  Aericultural  Society,  and 
was  president  of  that  society  for  a  number  of 
years.  General  Carey  laid  the  foundation  of 
his  education  in  the  public  schools,  but  com- 
pleted his  education  at  the  Pacific  Methodist 
College.  Following  the  bent  of  his  ambition  to 
become  a  lawyer,  he  entered  the  law  office  of 
CofFroth  &  Spauldmg.  After  his  college  course 
was  completed,  and  in  February.  1869.  he  was 
admitted  to  practice  by  the  District  Court,  and 
afterwards  by  the  Supreme  Court  of  the  State. 
He  holds  certificates  froin  all  the  Federal 
courts,  including  the  Supreme  Court  of  the 
United  States.  Shortly  after  he  was  admitted 
he  formed  a  copartnership  with  Mr.  Charles 
T.  Jones,  and  the  two  young  men  entered  upon 
the  practice  of  their  profession,  and  soon  took 
and  maintained  a  prf)mincnt  place  at  the  bar 
of  Sacramento. 

General  Carey  was  deputy  under  Attorney- 
General  Jo.  Hamilton  in  1866-67,  and  resigned 
this  position  to  form  a  copartnership  with  the 
late  Judge  John  W.  Armstrone".  which  part- 
nership continued  until  the  latter  was  ap- 
pointed Superior  Judge  of  Sacramento  county. 
Shortly  after  this  our  subject  was  elected  dis- 
trict attorney  of  Sacramento  county,  a  posi- 
tion he  filled  with  fidelity  and  distinction. 
While  in  that  office  one  Jo  Hurtado,  who  had 
been  previously  convicted  of  murder  in  the 
first  degree,  and  was  under  sentence  to  be 
hanged,  the  prosecution  having  been  by  in- 
formation instead  of  by  indictment,  sued  out 
a  writ  of  error  to  the  Supreme  Court  of  the 
L'nited  States,  contending  that  section  8  of 
article  "i  of  the  Constitution  of  1870.  author- 
izine  prosecutions  by  this  method,  was  in  con- 
flict with  and  prohibited  by  the  fifth  and 
fourteenth  articles  of  amendments  of  the  Con- 


stitution of  the  United  States.  General  Carey 
was  employed  Ijy  the  State  to  defend  the  prac- 
tice by  the  State  constitution,  and  he  secured 
a  decision  of  the  Supreme  Court  of  the  United 
States  establishing  this  method  of  prosecu- 
tion, since  which  time  many  of  the  states  in  the 
Union  have  made  a  similar  provision,  (no  U. 
S.,  115.) 

General  Carey  always  had  a  military  in- 
clination. He  was  connected  with  the  State 
militia  from  his  early  boyhood  days,  and  in 
furtherance  of  his  ambition,  and  in  recogni- 
tion of  his  past  service.  Governor  George 
Stoneman  appointed  him  brigadier-general  of 
the  Fourth  Brigade,  N.  G.  C,  which  position 
he  held  for  several  years.     Whence  his  title. 

In  the  election  of  1884  he  was  the  candidate 
of  his  paj-ty  for  State  senator,  and.  although 
Sacramento  county  usually  went  1700  Repub- 
lican majority,  he  came  within  a  few  hundred 
votes  of  election. 

In  November,  1886,  President  Cleveland  ap- 
pointed the  General  United  States  attorney 
for  the  Northern  district  of  California.  He 
was  immediately  confirmed  by  the  senate,  and 
assumed  the  duties  of  the  office  on  the  6th  day 
of  that  month,  and  served  two  years  under 
President  Cleveland,  and  two  years  under 
President  Harrison.  In  November.  i8go,  he 
sent  in  his  resignation,  and  in  accepting  it,  At- 
torney-General Miller  paid  him  a  very  high 
com.pliment.  It  is  said  by  those  familiar  with 
the  history  of  this  office  from  the  earliest  days, 
that  there  was  not  only  a  greater  volume  of 
business  done,  but  that  the  character  of  the 
litigation  was  of  unusual  importance,  during 
these  four  years.  The  titles  to  the  Las  Pul- 
gas  grant,  the  Corte  Madera  grant  and  of 
many  other  smaller  grants,  were  litigated  or 
settled.  The  infringement  of  the  government 
in  the  use  of  what  was  claimed  to  be  the 
Shield  Caison  Gate,  at  the  Mare  Island  dry 
dock ;  the  fraudulent  Chinese  certificate  cases 
known  as  the  Boyd  and  Ciprico  cases ;  the 
fraudulent  survey  cases,  known  as  the  Ben- 
son cases :  the  fraudulent  timber  land  entries, 
known  as  the  Beach  cases ;  the  Terry  cases 
and  the  Neagle  habeas  corpus  case,  and  many 
others,  needless  to  mention,  all  came  imder 
his  charge.  The  latter  case  was  pre-eminently 
the  one  of  greatest  importance  historically,  be- 
cause of  the  facts  leading  up  to  it,  the  person- 
aces  connected  with  it.  and  the  principle  in- 
volved. 

General  Carey  entered  upon  the  practice  of 
his  profession  in  San  Francisco  after  retire- 
ment from  office,  and  has  been  engaged  in  pri- 
vate practice  in  that  city  ever  since. 


MELVIN  C.  CHAPMAN. 

Mclvin  C.  Chapman  was  born  in  Westfield, 
Illinois,  on  the  5th  day  of  September.  1850, 
in  which  state  he  resided  up  to  1869.  the  year 
of  his  removal  to  California.  He  is  able  to 
trace  an  honorable  ancestry  back  to  the  days 
of  Charles  the  First,  at  which  time  some  of 
his  ancestors,  under  Oliver  Cromwell,  fought 
against  the  king.  In  1660  Robert  Chapman 
emigrated   from   England   and   settled   in    Say- 


cMehin  C.   Chapman 


History  of  the  Bench  and  Bar  of  California. 


801 


brook,  Conneclicnt.  and  the  homestead  ac- 
quired by  him  at  that  time  still  remains  in  the 
possession  of  his  descendants. 

Melvin  C.  Chapman  is  one  of  the  direct 
descendants  of  Robert  Chai)man.  many  of 
whom  were  engaged  in  the  war  for  Ameri- 
can Independence,  and  the  war  of  i8i2,  and 
also  in  the  late  Civil  War ;  others  from  re- 
mote colonial  times  have  occupied  high  judi- 
cial positions,  while  others  were  engaged  in 
the  ministry  and  in  mercantile  and  commer- 
cial pursuits. 

Mr.  Chapman  began  the  study  of  the  law  in 
this  State  in  1872.  having  acquired  at  that  time 
by  his  own  exertions  a  competency.  Unex- 
pected financial  reverses  having  overtaken  him 
two  years  later,  he  was  compelled  for  the  time 
being  to  turn  his  attention  to  other  business 
in  which  he  was  successful.  Upon  a  renewal 
of  his  law  studies  he  was  adtnitted  to  the  bar 
of  the  Supreme  Court  of  this  State  in  1884. 
On  his  admission  to  the  bar  he  immediately 
entered  upon  the  practice  of  his  profession  in 
Oakland,  California,  where  he  had  resided 
for  ten  years,  and  where  he  has  ever  since  lived 
and  practiced.  The  reputation  which  he  had 
acquired  as  a  successful  business  man  at  once 
brought  him  a  remunerative  practice,  and  the 
able  and  faithful  manner  in  which  he  handled 
all  business  intrusted  to  him  quickly  gave 
him  standing  as  an  able  and  successful  law- 
yer. His  reputation  in  this  regard  has  con- 
tinually increased  with  his  work,  until  he  is 
now  regarded  as  one  of  the  ablest  and  most 
successful  lawyers  in  the  State.  His  work 
in  the  profession  has  not  been  confined  to  any 
special  line,  although  his  remarkable  success 
in  criminal  cases  has  brought  great  demands 
upon  his  time  in  this  class  of  service.  He  is 
frequently  employed  on  behalf  of  the  people  in 
difficult  criminal  cases,  and  in  this  class  of 
work  he  is  equally  as  formidable  as  when  en- 
gaged in  the  defense.  His  eminent  abilit> 
in  criminal  cases  has  long  been  recognized, 
and  it  is  safe  to  say  that  in  this  class  of  work- 
he  has  no  superior,  if  he  has  an  equal,  in  the 
State.  He  is  the  attorney  for  several  import- 
ant corporations  whose  business  is  extensive, 
and  this  makes  large  demands  upon  his  time, 
and  yet  he  turns  a  deaf  ear  to  no  poor  person 
who  has  a  just  cause  ;in(1  ;isks  his  assist- 
ance. 

Mr.  Chapman  is  of  prepossessing  ])ersonality, 
and  has  a  rich  and  powerful  voice.  He  is  re- 
spectful in  his  conduct  toward  the  cunrt.  and 
CfUfteous  and  generous  in  his  oppdiu'nt  IK' 
talks  easily,  always  In  tlie  jjdint.  and  is  la 
conic  and  forceful  in  cxiM-cs-.ion.  \\c  has  a 
keen  sense  of  the  ridiculous,  is  witty,  (piick 
at  repartee,  and  is  master  of  sarcasm.  He  is 
always  earnest  in  the  conduct  of  his  cases 
before  the  court,  and  is  fiften  intensely  ini- 
nressive,  and  alw.iys  I'ffeclivc  before  a  jury. 
He  is  yet  in  the  prinu'  of  life,  .'ind  in  .active 
work. 

In  1888  he  was  elecied  by  a  1  hree-fourtiis 
■'■ote  of  his  assembly  district  to  rcprcsriU  it  in 
the  legislature.  Uiion  tiic  exnir.ation  i'\  liis 
term    of   office    he    was    tendered    ;i    utrorniiMs 


nomination  for  a  sec(jnd  term,  but  declined  to 
be   a   candidate   for   re-election. 

In  1891  he  was  elected  mayor  of  the  city 
of  Oakland  by  the  largest  Republican  ma- 
jority ever  given  to  a  candidate  of  that  party 
for  the  office  of  mayor. 

In  1890  a  large  majority  of  the  congres- 
sional delegates  to  the  congressional  Repub- 
lican convention  of  that  year  earnestly  re- 
quested him  to  accept  a  nomination  for  con- 
gress, to  represent  the  Third  congressional  dis- 
trict of  California  in  the  house  of  represen- 
tatives. At  this  time  the  Hon.  Joseph  Mc- 
Kenna,  who  was  then  representing  the  Third 
district,  was,  and  for  a  long  time  had  lieen 
actually  engaged  in  his  congressional  duties 
at  Washington,  to  the  extent  that  he  had 
wholly  neglected  his  candidacy  for  a  re-nom- 
ination to  congress.  Mr.  Chapman  thought 
that  under  these  circumstances  Mr.  McKenna's 
devotion  to  the  public  interest  should  not  op- 
erate to  defeat  his  re-nomination,  and  there- 
fore declined  to  become  a  candidate  to  suc- 
ceed him.  Mr.  McKenna  accordingly  received 
a  re-nomination. 

Mr.  Chapman  is  married  and  has  one  child, 
a  son.  His  wife  is  the  daughter  of  Mr.  and 
Mrs.  W.  W.  Childs  of  Oakland,  California. 


THOMAS  L.  CAROTHERS. 

Thomas  Langley  Carothers  is  the  son  of 
James  H.  and  Margaret  Barnes  Carothers,  and 
was  born  at  Carthage,  Hancock  county,  Illi- 
nois, September  26,  1842.  He  "crossed  the 
plains"  with  his  father's  family  in  the  spring 
of  1853.  His  father  settled  at  Stony  Point, 
Sonoma  county,  in  the  fall  of  that  year,  re- 
maining there  until  1857.  Tliomas  in  the 
meantime  attended  the  neighborhood  school 
and  worked  on  his  father's  farm.  In  1857  t'l^' 
family  moved  into  Petaluma,  where  they  re- 
sided until  the  spring  of  1859,  Thomas  attend- 
ing the  public  schools  of  that  place.  In  the 
spring  of  1859  the  family  moved  to  Sacra- 
mento City,  where  the  son  continued  his 
studies  in  the  public  schools  until  the  fall  of 
1861.  At  the  close  of  the  regular  term  of 
the  High  School  of  Sacramento,  in  Septem- 
ber of  tliat  year,  the  young  man  entered  the 
law  office  of  Harrison  &  listee  of  that  city. 
He  studied  law  until  January,  1862,  when  the 
family  returned  to  Petaluma  on  account  of 
the  great  Hood  then  at  Sacramento,  On  ar- 
riving at  Petaluma  our  law  student  enlereil 
the  office  of  Hon.  (ieorge  Pearce.  where  he 
continued  iiis  studies  until  October  5.  i8(\^. 
Me  was  then  admitted  to  the  bar  by  the  Su- 
prenu'  ("omt  ot"  tlie  Stale,  liaving  become  of 
age    onl\-    ten    days    l)etore. 

.Mr.  (  .udilurs  began  the  pr.aclice  of  j.iw  in 
I'etalnni,!.  lie  tilled  the  position  of  deputy 
district  attorney  ot  Sonoma  county  tor  two 
ye.irs.  iiikUi-  lion.  W'illi.ani  Ross.  In  May. 
iH()().  he  removed  to  I'ki.ih  City.  .Mendo- 
cino coinitN'.  where  he  has  i)racticed  hi-  i)ii>- 
fession  ever  since.  In  December,  i8()(),  he 
was  married  to  Miss  Lucy  Pierson.  daughter 
of  the  late  Dr.  K.  M.  and  Harriet  Piirson. 
Since  his  admission  to  the  .Supreme  C"ourt   he 


802 


History  of  the  Bench  and  Bar  of  California. 


has  been  admitted  as  an  attorney  of  the  United 
States  Court  and  District  Courts  at  San  Fran- 
cisco. In  1867  he  was  appointed  a  notary 
public  by  Governor  Low,  which  position  he 
has  held  ever  since.  He  has  been  district  at- 
torney of  Mendocino  county  for  two  years, 
and  has  been  for  several  years  a  United  States 
commissioner. 


In  il-!,'^4  Mr.  Carotliers  was  the  nominee  of 
the  Republican  ])arty  for  congress  in  the  First 
congressional  district  of  this  State.  The  dis- 
trict had  been  giving  about  two  thousand 
Democratic  majority,  and  yet  he  came  within 
one  hundred  and  forty-five  votes  of  election, 
his  Democratic  competitor  being  Hon.  Bar- 
clay Henley.  In  1888  he  was  one  of  the  Re- 
publican nominees  for  Presidential  elector  for 
the  State  of  California,  and  General  Harrison 
carrying  the  State,  Mr.  Carothers  was  elected 
and  discharged  the  duties  of  the  position.  He 
was  a  trustee  of  Ukiah  City  for  ten  years,  and 
during  that  time  was  president  of  the  board 
()f  trustees.  For  several  years  he  was  the  law 
partner  of  Hon.  R.  M.  McGarvy,  who  was 
later  Superior  Judge.  He  has  acquired  a  large 
and  lucrative  practice;  and,  particularly  as  a 
criminal  lawyer,  he  has  won  great  reputation. 
In  1880  he  was  employed  by  the  county  to  as- 
sist in  the  prosecution  of  the  famous  "Men- 
docino outlaws,"  and  he  convicted  every  one 
of  them. 

In  the  case  of  Albion  River  Railroad  Com- 
pany vs.  William  Heeser.  reported  in  the 
84th  volume  of  our  State  Supreme  Court  Re- 
ports, at  page  435.  the  court,  following  the 
argument   of   Mr.   Carothers   on   his   brief   for 


respondent,  decided  (and  it  was  then  so  held 
for  the  first  time  in  this  State),  that  a  rail- 
road company  could  first  go  on  and  take  land 
for  railroad  purposes,  and  have  the  land  con- 
demned afterwards,  with  no  other  liability 
for  damages  than  such  as  the  company  would 
have  incurred  if  it  had  secured  condemnation 
before  taking  possession. 

In  January,  1896,  Mr.  Carothers  lost  his 
wife.  He  afterwards  married  Mrs.  Lydia  I. 
Reeves,  a  widow,  a  most  estimable  and  intelli- 
gent lady,  who  had  been  one  of  his  best 
clients.  He  remarked  to  his  friends  at  the 
time  that  he  had  "lost  a  good  client  Init  gained 
an  excellent  wife." 

Mr.  Carothers  is  now  referee  in  bankruptcy 
for  Mendocino  and  Lake  counties.  He  is  also 
mayor  of  Ukiah.  elected  as  a  Republican  in  a 
strong  Democratic  town. 


R.  M.  CLARKEN. 


R.  M.  darken,  who  is  a  prominent  attorney 
at  the  Sacramento  bar.  was  born  in  Charleston. 
S.  C.  but  while  quite  j-oung  removed  with 
his  parents  to  Missouri.  He  was  sent  to  Ken- 
tucky to  school,  and  received  a  classical  edu- 
-ation  at  the  famous  Jesuit  College  at  BarHc- 
town.  In  December,  i860,  he  came  to  Califor- 
nia, where  he  has  ever  since  resided.  Imme- 
diately thereafter  he  began  the  study  of  law, 
although  he  did  not  commence  active  practice 
at  the  bar  for  some  years  later.  Like  many 
u'ho  have  entered  upon  a  successful  law  career, 
he  spent  some  years  as  a  teacher  in  the  public 
-chools,  and  later  was  a  professor  in  St.  Igna- 
tius College,  at  San  Francisco;  and  thereafter 


i)ecanie    an    editorial    writer    and    leading    re- 
porter on  the  great  San  Francisco  dailies. 

He  was  elected  to  the  twenty-first  (1875-76) 
session  of  the  legislature,  where  he  was  an 
active,  industrious  and  leading  member.  Often 
during  this  session  his  ability  as  a  parliamen- 
tarian and  his  recognized  fairness  compelled 
him   to   act   as   presiding  officer   of  his   house. 


I 


Thomas  J.   Clunie 


History  of  the  Bench  and  Bar  of  Califoriiia. 


805 


For  many  years  he  was  a  Justice  of  the  Peace 
at  Folsom,  Sacramento  comity.  At  this  time 
Folsom  was  a  lively  mining  town,  and  was 
filled  with  the  good  and  bad  characters  which 
were  always  to  be  foimd  in  those  days.  The 
office  of  justice  was  much  more  important  in 
those  times  than  now,  and  it  required  a  man  of 
courage  and  ability  to  meet  the  demands  made 
upon  him.  Mr.  Clarken  displayed  courage  and 
made  a  splendid  record. 

Mr.  Clarketi  has  always  been  a  staunch  Dem- 
ocrat, and  his  ability  as  a  speaker  has  caused 
his  services  to  ^e  sought  by  that  party.  There 
are  few  cities,  towns  or  hamlets  in  the  State  of 
California  where  the  people  have  not  had  the 
pleasure  of  listening  to  his  eloquent  utter- 
ances. 

In  1879  he  was  a  candidate  for  delegate  to 
the  constitutional  convention,  but,  like  others 
on  his  ticket,  suffered  defeat  at  the  hands  of 
the   Workingmen's  party. 

He  has  always  been  prominent  in  the  coun- 
cils of  his  party  in  San  Francisco  and  Sac- 
ramento, and  few  conventions  are  held  in  Sac- 
ramento in  which  he  is  not  the  presiding  of- 
ficer. No  one  will  contest  with  him  for  the 
honor. 

W'hiie  his  party  in  Sacramento  county  is 
great!>  in  the  minority,  and  one  seeking  office 
on  the  Democratic  ticket  is  considered  a  mar- 
tyr to  the  cause,  yet  Mr.  Clarken  has  on  sev- 
eral occasions  nearly  succeeded  in  being  elected 
to  the  important  office  of  district  attofney. 

While  Mr.  Clarken  is  engaged  in  general 
law  practice,  and  has  a  lucrative  civil  and 
probate  business,  he  prefers  criminal  cases. 
His  ability  as  a  pleader  before  juries  justifies 
his  choice. 


THOMAS  J.  CLUN5E. 

General  Clunie  was  reared  in  Sacramento 
and  received  his  education  at  the  public 
schools  of  that  city.  After  finishing  the  high 
school  course  he  received  private  instructions 
from  a  graduate  of  Harvard  College,  studied 
law  and  was  admitted  to  practice  before  he 
reached  his  majority,  under  a  special  act  of 
the  legislature,  declaring  him  of  lawful  age, 
when,  in  fact,  he  was  but  eighteen  years  of 
age.  He  entered  upon  the  practice  of  the 
law  and  built  up  a  large  and  lucrative  busi- 
ness. When  twenty-one  years  of  age  he  was 
nominated  for  the  legislature,  and  was  elected, 
as  a  Democrat,  in  that  strong  Republican 
county.  His  friends  assert  that  he  made  a 
good  record  for  some  years  there.  After- 
wards he  removed  to  San  Francisco,  where 
he  continued  the  practice  of  the  law  with 
great  success.  In  1884  he  was  sent  as  a  dele- 
gate at  large  from  California  to  the  National 
convention  at  Chicago  that  nominated  Grover 
Cleveland  for  President,  and  served  on  the 
committee  on  platform  and  resolutions.  In 
1886  he  was  elected  to  the  State  senate.  His 
record  there  is  a  part  of  the  history  of  the 
State. 

In  1888  he  was  noniiuaU'd  by  the  Demo- 
cratic    convention      for     cdngn.ss,     and      was 


elected  by  a  clear  majority,  being  the  only 
Democrat  that  was  ever  elected  from  the  fifth 
district,  as  then  constituted.  His  friends  are 
justly  proud  of  his  record  in  congress. 

From  boyhood  General  Clunie  took  an  active 
interest,  and  was  a  staunch  friend  of  the  Na- 
tional Guard  of  California,  it  is  said  he 
had  two-inch  heel  boots  made,  to  render  him 
tall  enough  to  join  the  militia.  He  remained 
an  active  member  for  ten  years,  retiring  from 
the  State  militia  as  brigadier-general,  com- 
mander of  the  Fourth  Brigade,  N.  G.  C.  Dur- 
ing all  this  time  he  continued  the  practice  of 
the  law.  His  investments  in  outside  matters 
were  to  good  purpose.  He  became  interested 
in  business  affairs  and  enterprises,  nearly  all 
of  which  prospered,  until  now  he  does  but 
little  law  practice,  his  own  affairs  having 
grown  to  such  magnitude  as  to  require  nearly 
his  entire  time. 

Among  some  of  the  important  cases  in 
which  he  has  been  employed  were  Hoagland 
vs.  the  City  of  Sacramento,  when  Hoagland 
et  al.,  residents  of  Washington,  Yolo  county, 
sued  the  city  of  Sacramento^  for  damages  oc- 
casioned by  the  straightening  of  the  channel  of 
the  American  River,  thus  causing  the  river 
at  high  water  to  overflow  and  flood  the  town 
of  Washington.  The  damages  claimed  were 
about  $200,000.  The  case  was  finally  decided 
in   favor  of  the  city  of  Sacramento. 

The  case  of  the  people  of  the  State  vs.  Miles 
et  al.,  involving  $150,000,  was  decided  in  fa- 
vor of  Miles.  Another  case  was  the  People 
vs.  Laura  D.  Fair,  the  second  trial  for  the 
murder  of  Crittenden.  The  People  vs.  Tip 
McLaughlin,  and  man)-  other  cases  could  be 
mentioned. 

Since  being  declared  of  age.  General  Clunie 
has  canvassed  the  State  in  every  campaign, 
as  a  Democrat,  except  the  last  two.  He  made 
the  nominating  speech  when  Washington  Bart- 
k'lt  was  nominated  for  Governor  of  Cali- 
fornia ;  also  as  senator  from  San  Francisco, 
he  was  selected  to  place  his  close,  personal 
and  political  friend,  Hon.  George  Hearst,  in 
nomination  for  the  United  States  senate.  His 
record  in  congress  and  in  the  legislature  is 
well  known  and  gratefully  appreciated.  He 
has  given  freely  of  his  time  and  money  to  aid 
the  cause  of  Democracy. 

The  General  is  one  of  the  best  liked  men  in 
the  State,  and  no  one  regrets  his  great  suc- 
cess. He  owns  the  Clunie  Building,  where 
his  offices  arc  located,  and  other  valuable 
estate  in  San  Francisco,  and  the  fine  opera 
house  in  Sacramento,  whicii  w.is  o|)ene(l  in 
1885. 


R.  P.  CLFMFNT. 

line  is  one  of  oiu'  oldest  friends.  He  was 
in  i)ractice  in  San  Francisco,  in  partnership 
with  the  veteran,  Merrill,  as  long  ago  as  1859. 
Captain  Martin  White,  who,  a  decade  later, 
abandoned  tiie  law  for  mining  enterprises,  was 
associated  with  the  firm,  being  Merrill.  Clem- 
ent &  White.  .\nd  all  three  are  living  today, 
in    fair  lualtli   and   strength,  in   San   l-'rancisco. 


806 


History  of  the  Bench  and  Bar  of  California. 


Captain  While  is  ilie  only  one  oi  the  thrco 
whose  residence  in  the  metropolis  has  been  in- 
terrupted. He  practiced  law  in  Virginia  City. 
Nevada,  in  the  flnsh  times  of  "Washoe."  We 
met  hnn  there  in  1863.  He  was  in  partner- 
ship with  Dighton  Corson,  now  a  Justice  of 
the  Supreme  Court  of  South  Dakota.  After 
he  turned  to  mining.  Captain  White  had  vary- 
ing fortunes.  Among  his  discoveries  was  the 
famous  mine  named  after  him.  The  Martin 
White  Mining  Company  is  still  operating  their 
property,  the  mine  being  at  White  Pine.  Ne- 
vada, and  their  main  office  in  San  Francisco. 
We  had  to  make  this  allusion  to  the  kind  old 
man.  although  he  is  not  of  the  bar.  but  is 
still  "mining"  in  his  time-worn  age. 

Roswell  P.  Clement  is  a  native  of  New 
York  state,  born  in  1826.  (That  year.  i8j6I 
How  many  great  men  in  that  year  left  thr 
world — Adams.  Jefferson,  and  Lindley  Murray 
among  them.  And  this  History  will  show 
how  many  bar  leaders  of  California  then  came 
into  being. )  Mr.  v^iement  was  a  member  of 
the  San  Francisco  board  of  supervisors  for 
two  years  and  a  half,  in  1865-67 — the  terms 
of  the  members  having  been  extended  for  six 
months  by  act  of  the  legislature.  He  became 
the  regular  attorney  of  the  San  Francisco 
Cas  Light  Company,  to  succeed  Henry  H. 
Haight.  when  that  prominent  lawyer  was 
elected  Governor  of  the  State,  in  the  fall  of 
'67.  Mr.  Clement  held  this  important  position 
for  about  eighteen  years.  The  most  note- 
wort  liy  and  important  work  of  his  life,  espe- 
cially in  its  relation  to  the  public  interest,  was 
in  the  "expansion"  of  Golden  Gate  Park.  The 
idea  of  extending  the  public  reservation  for  a 
park  through  the  long  stretch  of  sand-dunes 
until  it  reached  the  ocean,  including  the  two 
hundred-foot  boulevard,  originated  with  him. 
when  a  member  of  the  l)oard  of  supervisors, 
and  there  is  reason  to  believe  that  but  for  his 
patient  and  arduous  efforts  in  that  behalf,  that 
redeemed  region,  now  so  inviting,  would  pre- 
sent a  park  of  not  more  than  three  hundred 
acres. 

Mr.  Clement's  year  of  arrival  in  California 
was  1853.  His  father,  Jabi.sh  Treadwell  Clem- 
ent, was  a  millwright  by  trade,  in  New  York. 

Mr.  Clement  is  a  married  man,  without  chil- 
dren. At  the  ap-e  of  seventy-four  years  he  is 
still  in  practice,  besides  owning  some  mining 
oroperty.  The  interests  of  the  Martin  White 
Mining  Company  are  in  his  keeping.  He  has 
been  a  clean  man  always — in  his  profession 
in  politics,  and  in  all  the  relations  of  life. 


MOSES   G.    COBB. 


Moses  G.  Cobb  was  born  in  Princeton.  Wor- 
cester county.  Massachusetts.  November  24. 
1820.  He  graduated  from  Harvard  College  in 
1843.  and  at  the  Dane  Law  School  ("Harvard) 
in  1846.  He  commenced  i)ractice  in  1846  in 
Charlestown.  Massachusetts,  now  a  part  of 
Boston,  and  subsequently  practiced  in  Boston 
to  1861  :  from  1862  to  1866  in  Stockton.  Cali- 
fornia, and  since  1866  in  the  city  of  San  Fran- 
cisco. 

Mr.  Cobb  has  been  a  very  active  man  in  his 


professional  career,  covering  now  a  period  of 
fifty-four  years.  Though  turning  aside  in  the 
earlier  years  of  liis  professional  life  for  other 
activities,  he  has  always  remembered,  so  he 
says,  that  "the  law  is  a  jealous  mistress,  and 
will  brook  no  rival ;'  and,  hence,  for  the  last 
fifty  years,  at  least,  he  claims  to  have  devoted 
sixteen  hours  a  day,  excepting  Sundays,  to  its 
study  and  practice. 

And  he  has  ])een  a  successful  practitioner, 
if  the  winning  of  the  numerous  cases  entrusted 
to  him  is  any  criterion.  He  has  the  gift  of 
an  intuitive  perception  of  the  salient  points 
of  a  giveti  case,  and  an  indomitable  energy 
and  perseverance  in  pushing  them  to  a  suc- 
cessful result. 

In  Massachusetts,  after  coming  to  the  bar, 
he  met  and  practiced  with  such  lawyers  as 
Benjamin  Curtis,  Rufus  Choate,  Caleb  Cush-, 
ing,  Benjamin  F.  Butler,  and  others  promi- 
nent in  tlie  profession.  He  studied  law  under 
Joseph  Story  and  Simon  Greenleaf,  as  pro- 
fessors at  the  Dane  Law  School,  Harvard  Uni- 


,  ,;T>;i^5?»> 


versity,  and  practiced  before  Judge  Story, 
United  States  Circuit  Court,  and  Chief  Justice 
Shaw,  Supreme  Court  of  Massachusetts.  He 
knew  Daniel  Webster  personally,  and  had 
many  conversations  with  him  when  a  student 
— a  classmate  of  his  being  at  the  time  a  stu- 
dent in  Mr.  Webster's  office.  He  is  proba- 
bly the  only  living  link — certainly  in  Califor- 
nia— between  the  lawyers  of  that  generation 
with  whom  he  practiced  in  Massachusetts  and 
those  of  the  present  day. 

His  tenacitj-  of  purpose  has  been  another 
prominent  factor  in  his  professional  success. 
He  often  mentions  to  his  brethren  at  the  bar 
the  case  of  Oakes  vs.  Munroe,  reported  in  8 
Cush.  Rep.  (Mass.),  1851,  to  illustrate  the 
virtue  of  holding  on.  He  in  that  case  attacked 
a  landlord  and  tenant  notice,  which  had  been 
the  form  in  use  in  Massachusetts  for  at  least 
fifty  years,  because  the  form  contained  the 
word  "immediately" ;  whereas,  he  contended, 
that  the  word  was  misleading  and  out  of  place ; 
that    the   exact   time   of   grace,   allowed   a   de- 


History  of  the  Bench  and  Bar  of  California. 


807 


linqucnt  tenant,  should  be  staled  in  the  notice 
employed  to  work  a  forfeiture  of  the  delin- 
quent tenant's  term,  although  no  harm  had 
ever  come  to  any  tenant,  as  to  the  form  in 
use,  from  the  objectionable  word,  so  far  as 
was  ever  known. 

His  brethren  at  the  bar  ridiculed  his  con- 
tention through  three  courts,  there  being  two 
appeals.  On  submitting  the  case  on  final  ap- 
peal in  the  Supreme  Court  of  Massachusetts, 
after  a  labored  argument  on  his  part,  the  op- 
posing counsel  simply  moved  for  damages 
against  the  appellant  for  the  prosecuting  of  a 
frivolous  appeal.  The  Massachusetts  Supreme 
Court,  however,  sustained  the  appellant's  con- 
tention, in  an  opinion  of  unusual  length  for 
that  court,  and  tne  case  became,  and  has  con- 
tinued to  be,  the  leading  authority  on  what 
a  landlord  and  tenant  notice  in  limine  should 
contain  in  order  to  work  a  forfeiture  of  a 
lease. 

During  the  time  he  was  located  at  Stockton 
he  tried  many  important  mining  cases  in  the 
mining  counties  of  Calaveras,  Tuolumne  and 
Stanislaus,  in  which  he  was  successful. 

Soon  after  coming  to  San  Francisco  he  com- 
menced the  action  of  Samuel  Brannan  vs.  The 
Central  Pacific  Railroad  Company,  and  its  di- 
rectors, in  the  Fifteenth  Judicial  District  Court 
of  San  Francisco,  charging  the  directors  with 
fraudulently  appropriating  to  their  own  in- 
dividual use  the  numerous  and  valuable  sub- 
sidies and  franchises  granted  the  road  by  the 
Federal  and  State  governments,  and  by  sev- 
eral  counties  and  cities  in  this   State. 

The  complaint  was  published,  verbatim  et 
literatim,  in  the  Sacramento  Union,  the  next 
morning,  after  the  same  was  filed  in  the  Fif- 
teenth District  Court,  city  and  county  of  San 
Francisco,  taking  up  every  inch  of  space  of 
that  issue  of  The  Union.  One  thousand  copies 
of  the  complaint  were  printed  in  pamphlet 
form,  and  in  less  than  three  months,  from 
July,  1870,  every  copy  of  the  thousand  liad 
been  distributed  to  members  of  the  bar  of 
the  State,  on  special  request  for  the  same. 

The  case  was  subsequently  amicably  set- 
tled; but,  as  after  events  proved,  it  left 
dragon's  teeth  for  the  company  and  its  di- 
rectors. 

He  was  magna  pars  fni  in  tin-  celebrated 
case  of  Co.x  vs.  McLaughlin.  This  case  was 
in  the  courts  twenty-two  years.  Tt  resulted 
in  the  killing  of  McLaughlin  by  Cox.  which 
was  adjudged  justifial)le,  and  in  an  nllimate 
judgment  against  McLaughlin  in  favor  <>f  Cox, 
in   1888,  for  $112,000. 

Another  case  of  his  was  soniewlial  cele- 
brated, being  the  breach  of  promise  case  of 
Moore  vs.  Hopkins.  \hv  millionaire,  which 
resulted  in  a  verdict  against  Hopkins  of  %7S.- 
000.  This  judgment  was  ultimately  settled.  Tt 
was  said,  at  the  time  the  judgment  was  re- 
covered— 1887 — that  the  same  was  the  largest 
ever  before  recovered  in  the  Ignited  States 
in   such   a  kind  of  a  case. 

He  has  been  engaged  in  manv  important 
cases  in  the  Federal  Courts,  notably  the  Rrod- 
erick    will    case — Keily   vs.    McGlynn,    reported 


in  82  U.  S.  Rep.— in  which  the  United  States 
Supreme  Court  held  that  six  years  laches  on 
the  part  of  the  heir  of  a  descendant,  though 
ai)sent  l)eyond  seas  and  ignorant  of  the  fraud, 
gives    validitv   to   a    forged   will. 

He  was  engaged  in  several  cases  involving 
title  to  Mexican  land  grants;  notably  the  San 
Jacinto  Sobrante  grant,  in  San  Bernardino 
county,  this  State,  considered  then  enormously 
valuable  on  account  of  its  tin  deposits. 

Socially,  Mr.  Cobb  is  a  very  companiona- 
ble kind  of  a  man  ;  ever  cheerful,  ever  ready 
to  tell  a  good  story,  or  to  listen,  with  equal 
readiness  and  keen  enjoyment  to  the  story 
told  by  another. 

He  is  noted  for  his  kindness  toward,  and 
ever  patient  readiness  to  help,  the  younger 
members  of  the  profession,  giving  counsel,  and 
often  trying  cases  for  them,  without  asking 
or  expecting  reward. 

For  fifty  years  last  past  he  has  been  an  edu- 
cator in  the  profession  and  practice  of  the 
law.  having  had  from  one  to  six  students  all 
the  time  in  his  office.  Anson  Burlingame,  the 
first  American  minister  to  China,  was  a  stu- 
dent with  him,  and  was  his  first  student  in 
Massachusetts. 

General  Cobb  is  still  in  active  practice,  hav- 
ing been  so  long  in  the  profession,  he  says,  it 
would  surely  kill  him  to  stop  now. 


WII.I.OL'GHBY  COLE. 

Willoughby  Cole,  son  of  Cornelius  Cole,  was 
born  at  Sacramento.  California,  November  20. 
1857.  He  is  a  graduate  of  Cornell  University. 
He  lived  in  San  Francisco  in  1865-67;  1873- 
74.  and  1878-79.  He  then  spent  two  years  in 
Arizona,  in  mining  pursuits  and  journalism, 
and  returned  to  San  Francisco  in  1S82.  He 
was  admitted  to  the  bar  of  the  Supreme  Court 
of  California  on  August  9,  1884.  He  practiced 
with  his  father  until  1887.  when  he  removed 
to  Los  Angeles.  He  was  United  States  district 
attorney  for  the  Southern  district  under  Presi- 
dent Harrison,  assuming  the  office  February. 
i8go.  Since  the  end  of  his  official  term  he  has 
been  engaged  in  the  practice  in  Los  Angeles, 
in  association  with  his  distinguished  father. 


AUGUST  COMTE. 


We  come  upon  a  great,  suggestive  name, 
worthily  borne  by  a  San  Francisco  counsellor 
— worthily  borne,  indeed,  as  our  other  friend 
of  the  same  bar.  Fisher  .Ames,  worthily  bears 
his.  But  neither  Mr,  Comte  nor  Mr.  .Vnies  is 
n.-laled  to  eitiier  of  tiie  masters  who  first  made 
llieir   names   illustrious. 

Our  August  Comte  was  lioni  in  St.  Louis, 
Missouri.  September  25,  1842.  Hi--  parents 
were  h'rench.  his  father,  wlio  also  lK)rc  the 
s;nne  name  in  full,  being  a  saddler,  and  .set- 
tling with  his  family  early  in  the  fifties  at 
Sacramento.  California,  where  he  amassed  a 
siuig  competence  in  his  calling.  We  recall 
now  his  nrofitalile  saddle  store  in  the  capital 
city,  and  his  stout  figure  at  the  front,  in  the 
days  when  we  had  the  honor  of  being  a 
school    fellow   of  his   <\urc   noted    s.-iu 


808 


History  of  the  Bench  and  Bar  of  California. 


Mr.  Comle  received  his  early  education  in 
the  public  schools  of  Sacramento,  including 
the  High  School,  passing  from  the  latter, 
the  brightest  student,  as  we  can  testify,  to 
Harvard  University.  He  was  duly  gradu- 
ated, and  returning  home,  prepared  for  the 
bar,  and  was  admitted  to  practice  by  the 
State  Supreme  Court.  He  had  not  got  fairly 
started  in  the  profession  when  he  was  elected 
as  a  Democrat  to  the  assembly.  He  served 
in  the  session.  l)cginning  December  2,  1867. 
and  ending  March  30,  1868,  C.  T.  Ryland  of 
San  Jose  being  the  speaker  of  the  house.  At 
the  next  legislative  session,  1869-70,  he  took 
his  seat  as  State  senator  for  Sacramento,  hav- 
ing defeated,  in  a  Republican  county,  the  Re- 
publican candidate,  Lauren  Upson,  who  was 
the  veteran  editor  of  the  old  Sacramento 
Union.  His  senatorial  term  also  covered  the 
session   of   1871-72. 

Mr.  Comte  was  in  the  State  senate  when 
he  determined  to  remove  to  San  Francisco, 
and  abandon  his  profession.  Mr.  Edward 
Tompkins  of  Alameda  county  (q.  v.)  hearing 
of  Mr.  Comte's  determination,  and  being  pro- 
fessionally ill  at  ease  about  it,  took  occasion 
in  a  speech  on  the  floor  of  the  senate  to  ad- 
minister a  public  rebuke  to  his  young  friend. 

Senator  Tompkins'  speech,  in  which  he 
"pitches  into"  Mr.  Comte  for  abandoning  his 
profession,  may  be  found  in  the  old  Sacra- 
mento   Union   in   February,    1872. 

But  the  eloquent  rebuke  did  not  change  Mr. 
Comte's  mind.  He  had  tired  of  law,  and 
turned  to  merchandise  and  trade.  He  re- 
moved to  San  Francisco,  in  1873,  became  a 
partner  in  the  house  of  F.  Chevallier  &  Co.. 
and  pursued  the  wholesale  liquor  business  for 
some  seven  years.  We  remember  calling  on 
our  old  schoolmate,  in  his  Front  street  store, 
in  1874.  His  law  books  were  not  parted 
with,  but  piled  on  the  floor  in  a  back  room. 
But  he  said,  incidentally  ,  in  conversation,  "I 
can  make  more  money  in  practicing  law."  He 
had  put  $10,000  in  cash  into  the  business  of 
F.   Chevallier  &   Co. 

In  1877  Mr.  Comte,  in  association  with 
Governor  Perkins,  Dr.  Brigham  and  many 
others,  organized  the  Franco-American  Bank. 
Mr.  Comte  taking  the  position  of  business 
manager.  This  bank  disincorporated  after  a 
brief  life  of  two  or  three  years,  and  Mr.  Comte. 
in  1881,  resumed  law  practice  in  San  Fran- 
cisco. He  speedily  acquired  a  good  practice, 
one  cause  being  his  fluent  speaking  of  his  fa- 
ther's tongue  and  his  large  French  acquaint- 
ance. A  fine  scholar  in  languages  and  classics, 
an  able  lawver,  he  does  credit  to  his  French 
extraction.  He  is  one  of  the  very  few  good 
American  lawyers  of  French  parentage.  In 
fact,  Delmas  is  the  onlv  other  one  in  this 
State  whom  it  is  easy  to  recall.  As  a  rule, 
when  our  good  lawyers  are  not  American 
they  are  either  Irish  or  English.  Now  and 
then  we  strike  the  Hebrew,  as  in  Benjamin, 
and  the  Scotchman  as  in  Alexander  Camp- 
bell. 

Mr.  Comte's  law  business  is  principally  pro- 
bate. He  has  more  business  in  that  line  than 
anv  other  attornev  in  the  State.     He  has  been 


for  twenty  years  the  attorney  for  the  French 
Bank  of  his  city.  He  is,  however,  no  spe- 
cialist, but  a  broad-minded,  complete  lawyer. 
He  has  been  twice  married,  losing  his  first 
wife  some  years  ago.  He  has  several  chil- 
dren. He  was  a  member  of  the  board  of 
freeholders  which  framed  the  proposed  city 
charter  in  1880;  a  member  of  the  board  of  edu- 
cation in  1895-96,  and  is  now  a  member  of  the 
l)oard  of  supervisors  of  San  Francisco. 


HENRY  CONNER. 


Henry  Conner  is  a  native  of  Illinois.  He 
was  born  in  Adams  County,  near  Quincy,  on 
the  first  day  of  January,  1851,  and  lived  on  the 
farm,  the  place  of  his  birth,  till  grown.  With 
hiin  like  all  farmers'  boys,  it  w-ould  be  difficult 
to  tell  when  he  began  working  on  the  fjarm, 
for  they  comirience  so  early  in  life  that  they 
do    not    remember. 

He  worked  during  the  summer  time,  and 
winter,  too,  for  that  matter,  but  during  the 
winter  attended  the  district  school  in  the 
neighborhood  the  portion  of  the  short  term 
when  nothing  else  could  be  found  to  do.  In 
addition  to  the  instruction  obtained  at  the 
district  school  he  studied  enough  more  at  odd 
times  to  fit  himself  for  entrance  to  the  Illi- 
nois University,  where  he  spent  two  years. 
From  there  he  went  to  Oberlin  College  at 
Oberlin,  Ohio.  At  this  institution  he  grad- 
uated in  1878  with  the  Bachelor's  decree. 
After  leaving  Oberlin  he  studied  law  in  the 
office  of  A.-  E.  Wheat,  at  Quincy,  Illinois, 
but  was  not  admitted  to  the  bar  till  after 
coming  to  California.  He  arrived  at  San 
Bernardino  in  November,  1881,  and  was  ex- 
amined   by   the    Supreme    Court    and    licensed 


to  practice  law  at  the  opening  of  tlie  April 
term  of  the  Supreme  Court  in  1882  at  Los 
Angeles.  He  immediately  opened  an  office 
at  San  Bernardino,  where  he  has  been  en- 
gaged in  the  practice  of  his  profession  ever 
since. 

On  April  7th,  1885,  Mr.  Conner  married 
Mary  G.  Buford,  a  native  of  Tennessee.  In 
1888   he    was   elected    district    attorney   of   the 


I 


T.   C.  Coogan 


History  of  the  bench  and  Bar  of  California. 


811 


county  tjf  San  Bernardino  and  scr\cd  one 
term.  Since  he  left  that  office  he  has  served 
five  years  as  a  member  of  the  County  Board 
of  Education  of  San  Bernardino  county,  and 
is  now  a  member  of  the  i^>oard  of  Education 
of  the  city  of  San  Bernardino. 


T.  C.  COOGAN. 


Mr.  Coogan  has  been  a  busy  man  at  the 
San  Francisco  bar  for  twenty-one  years.  He 
came  from  his  native  state,  Connecticut,  where 
he  grew  to  manhood,  and  practiced  law  for 
seven  or  eight  years.  He  was  born  on  October 
8,  1848,  and  is  a  graduate  of  Harvard  Law 
School,  of  the  class  of  '71.  In  that  year  he 
was  admitted  to  the  bar  by  the  Connecticut 
Supreme  Court.  He  was  a  member  of  both 
branches  of  the  legislature  of  that  state  at  an 
early  age,  first,  of  the  lower  house,  then  of 
the  senate,  serving  two  years  in  each  body, 
representing  in  part  Hartford  county.  He 
came  to  San  Francisco  in  1879,  and  has  prac- 
ticed law  there  ever  since,  having  his  residence 
in  Oakland  during  all  of  that  time.  He  was 
attorney  for  the  board  of  State  harbor  com- 
missioners for  the  considerable  period  from 
1881  to  1889.  He  finally  resigned  the  place. 
For  many  years  past  he  has  been,  and  still 
is,  general  counsel  for  the  board  of  under- 
writers of  the  Pacific.  He  is  of  Democratic 
politics. 

Mr.  Coogan  is  well  known  and  generally  es- 
teemed in  the  great  communities  on  both  sides 
of  the  bay.  With  the  profession  he  is  in  gen- 
eral favor.  The  courts  cherish  for  him  un- 
qualified respect.  Ready  and  indefatigable  in 
his  professional  business,  scrupulous  and  chiv- 
alrous in  dealing  with  others,  of  a  sincere  and 
cordial  nature,  there  are  few  men  of  more 
agreeable,  and,  at  the  same  time,  more  unpre- 
tentious, bearing. 

Mr.  Coogan  married,  in  New  York,  shortly 
before  removing  to  California,  Miss  Mary  E. 
Watson,  a  Connecticut  lady.  There  are  four 
children  of  the  union. 


FRANK  L.   COOMBS. 

Hon.  Frank  L.  Coombs,  United  States  attor- 
ney for  the  Ninth  Circuit,  with  office  at  San 
Francisco,  was  born  in  Napa  county,  on  his 
father's  farm,  in  the  year  1853.  His  father 
was  Nathan  Coombs,  a  noted  man  in  the  early 
history  of  the  Slate,  who  cultivated  a  large  and 
fertile  tract  of  land  in  Napa  county,  and  took 
an  active  part  in  jxilitics.  He  was  a  member 
of  the  asseml)ly  in  1855  and  again  in  i860.  The 
elder  Coom})S  died  in  1877,  at  the  age  of  51, 
leaving  a  large  family.  He  had  been  actively 
identified  with  the  agricultural  interests  of  tlie 
State,  and  with  the  State  Agricultural  Society 
for  many  years.  A  son  of  his,  who  bore  liis 
name  in  full,  and  whose  profession  was  lliai 
of  a  farmer,  died  at  Napa  in  the  year  i89().  at 
the  age  of  45.  Some  say  the  farmer's  callint; 
has  become  a  profession. 

Hon.  Frank  L.  Coombs  was  educated  at  tlic 
common  schools  in  California.  ;ind  afterwards 
was   graduatcu    from    Colunil)ian    Law    Scliool. 


W'aslnnglon.  I).  C,  ni  the  year  1876.  He  was 
admitted  to  the  bar  of  the  California  Supreme 
Court  in  1876,  and  practiced  law  in  Napa  City 
and  adjacent  cities  for  some  years.  For  three 
successive  sessions  he  was  a  member  of  the  as- 
sembly from  Napa,  and  was  Speaker  at  the 
last  session,  in  i8gi.  He  was  again  in  the  as- 
sembly of  his  native  county  and  again  chosen 
Speaivcr  at  the  session  of  1897.  \n  1892  he 
was  appointed  by  President  Harrison  United 
States  Minister  to  Japan,  and  held  the  posi- 
tion  for   four  years. 

Mr.  Coombs  was  appointed  to  his  present 
position  as  United  States  attorney  by  Presi- 
dent McKinlcy,  in  1897.  On  the  5th  of  Sep- 
tember, 1900,  at  the  Republican  convention  at 
San  Jose,  he  was  nominated  for  congress 
from  the  First  district.  In  November  follow- 
ing he  was.  elected  to  that  office  by  a  verj'  large 
majority. 

Mr.  Coombs  is  a  man  of  agreeable  presence 
and  kind  manner  a  pleasing  public  speaker, 
and  has  canvassed  his  district  and  State  for 
his  party  on  several  occasions.  He  has  been 
a  prominent  member  of  the  N.  S.  G.  W.  since 
that  organization  was  founded,  having  gone 
through  the  several  chairs  of  Napa  Parlor, 
and  become  a  past  president  of  the  Grand  Par- 
lor. 


MICHAEL   COONEY. 

Michael  Cooney  was  born  in  Ireland  m  1839. 
His  parents  died  when  he  was  a  child.  He 
came  to  the  United  States  when  twelve  years 
of  age  and  located  in  Wyoming  county.  New 
York.  He  attended  the  public  schools  of  New 
York  state  and  worked  on  a  farm  in  summer 
and  went  to  school  in  winter,  and  supported 
and  schooled  himself.  When  eighteen  years 
of  age  he  owned  a  farm  of  eighty  acres  in 
Kalamazoo  county,  Michigan,  and  worked  't 
liimself.  He  returned  to  New  York  state  and 
studied  hard,  and  at  twenty  years  of  age  went 
til  Linn  county,  Mis.scnu'i,  where  he  had  a  sis- 
ter. .\  vacancy  occurring  in  the  village  school, 
»fter  passing  examination,  he  was  elected 
teacher  of  the  school,  and  served  two  terms. 
During  this  period  he  studied  law  and  read  the 
elementary  law  books.  He  then  returned  U- 
the  state  of  Micliigan  to  settle  up  some  busi- 
ness affairs,  but  before  he  could  do  so,  it  was 
too  late  to  secure  a  school,  and  a  friend  of 
his  who  carried  on  the  cooperage  business, 
persu.'uled  him  to  learn  that  tr;ide.  and  he  did 
so.  In  the  me.'inlime  the  Civil  War  broke 
out,  and  he  did  not  return  to  Missouri  to  fol- 
low school  teaching  as  he  had  intended.  It 
was  here  he  met  his  present  wife,  to  whom  he 
was  married  in  the  llien  village  of  Kalamazoo. 
.Afterwards  the  California  fever  growing  upon 
Inni  iu'  SI  lid  all  lie  li.ad  e.Kcept  a  lot  of  land 
which  lie  ii.iil  >liMiily  before  purchased  in  the 
village  for  a  home,  and  in  December.  1863, 
lie  started  with  his  wife  for  California  by 
way  of  New  York,  and  steamer,  and  arrived 
in  San  I-'rancisco  in  March.  18(^14.  He  has  re- 
sided there  ever  since.  He  had  to  strike  out 
Uke  thousands  of  other  self-made  men  for  any 


812 


History  of  the  Bench  and  Bar  of  California. 


honorable  work  in  siglit,  and  he  did  so  and 
found  it  in  a  cooperage  establishment,  where 
he  earned  good  wages,  taking  an  interest  in 
public  affairs  at  the  same  time  and  studying 
all  his  leisure  hours.  He  was  offered  a  place 
on  the  police  force  of  that  city,  which  he  ac- 
cepted. He  filled  this  position  faithfully,  un- 
til 1869,  when  he  resigned  and  was  elected 
one  of  the  justices  of  the  peace  of  San  Fran- 
cisco. He  served  his  term  of  two  years  in  that 
office,  and  studied  diligently  all  the  time.  He 
was  renominated  by  acclamation  for  the  second 
term,  and.  although  running  ahead  of  his  ticket, 
was  defeated.  In  the  meantime  he  passed  a 
creditable  examination  before  the  District 
Court,  and  the  Supreme  Court  of  the  State, 
and  was  admitted  to  the  bar  and  practiced  con- 
tinuously and  successfully  ever  since.  He  has 
been  a  general  practitioner,  has  had  a  large 
practice  and  the  confidence  of  his  clients  and  a 
multitude  of  friends.     He  has  saved  his  money 


Transvaal  committee  of  California,  which  is 
composed  of  different  nationalities — Germans, 
Hollanders,  Irish,  French  and  Americans,  of 
which  committee  he  has  been  president  from 
the  start. 

While  he  has  been  extraordinarily  active  in 
all  of  these  movements,  he  never  fails  to  at- 
tend to  his  law  business.  His  clients  can  al- 
ways find  him  in  his  office  at  nine  in  the 
morning— in  other  words,  his  days  are  devoted 
to  his  profession,  and  his  nights  and  leisure 
moments  are  freely  given  to  charitable,  fra- 
ternal and  patriotic  work. 

One  of  the  latest  and  most  laudable  services 
rendered  by  him  to  San  Francisco  was  the 
establishment  of  a  State  Normal  School  there, 
which  was  secured  solely  through  his  efforts. 

Judge  Cooney  may  truly  be  said  to  be  the 
father  of  that  school,  and  the  young  men  and 
young  women  of  San  Francisco  and  adjoining 
counties  owe  to  him  a  debt  of  gratitude  for 
the  advantages  thus  secured. 


and  has  considerable  means;  he  has  also  raised 
a  large  family.  He  has  refused  nomination  for 
public  office  a  number  of  times,  preferring  to 
stick  to  his  profession,  in  which  he  takes  pride. 
He  has  participated  in  many  patriotic  and 
charitable  movements,  organized  many  socie- 
ties and  has  served  as  president  of  many  of 
them.  He  is  a  man  of  great  executive  ability 
and  thoroughly  in  earnest  in  anything  he  un- 
dertakes. He  has  presided  at  more  public 
meetings  during  the  last  twenty-five  years  than 
probably  any  other  man  in  the  State.  He 
served  several  terms  as  chief  officer  of  several 
fraternal  insurance  societies,  and  has  paid  out 
much  money  with  entire  satisfaction  to  all.  He 
has  never  failed  to  assist  in  the  advancement 
of  the  cause  of  liberty  and  humanity.  Ireland, 
his  native  land,  has  had  a  share  of  his  time 
in  her  struggle  for  nationality.  When  the 
present  Boer  war  came  alonp.  true  to  prin- 
ciple, he  took  an  active  interest  in  that  strug- 
gle, and  gave  the  free  use  ol  his  office  to  the 


T.  E.  K.  CORMAC. 

Captain  T.  E.  K.  Cormac  has  been  at  the  bar 
in  San  Francisco  since  the  year  1880.  A  few 
years  after  his  location  in  that  city  he  be- 
came the  regular  attorney  for  the  British  Con- 
sul there,  whose  department  covers  the  Pacific 
Coast,  and  he  has  always  retained  that  busi- 
ness through  many  changes  in  the  incumbency 
of  the  office. 

The  Captain  was  born  in  the  British  Isles, 
was  a  cadet  in  the  Naval  Academy  at 
Trieste,  and  served  for  some  years  in  the 
-T-UStro-Hunganan  army  as  a  lieutenant.  He 
studied  law  in  Boston,  Massachusetts,  was  ad- 
mitted to  the  bar  in  that  city,  and  practiced 
there  for  a  few  years  before  coming  to  this 
State.  For  four  j^ears,  188.V87,  he  was  one 
of  the  attorneys  for  the  public  administrator 
at  San  Francisco,  Hon.  Philip  A.  Roach.  Since 
1890  he  has  had  for  a  law  partner  Denis  Don- 
ohoe,  Jr.,  •  son  of  the  former  British  Consul 
at  that  city,  of  the  same  name.  A  few  years 
ago  Mr.  Baum  entered  the  firm,  which  has 
since  been  Cormac,  Donohoe  &  Baum.  It  does 
a  large  business. 

Captain  Cormac's  professional  career  has 
been  one  of  continuous  good  fortune.  He  is  a 
well-equipped  lawyer.  His  pleadings  are  models 
of  concise  and  accurate  statement.  In  person 
he  is  tall,  and  finely  built,  of  striking  physi- 
ognomy, and  soldierly  bearing.  He  has  a  ro- 
bust constitution  and  enjoys  never-failing 
health.  He  always  dresses  well,  and  in  taste. 
He  has  traveled  a  great  deal,  and  takes  a  trip 
to  Europe  every  few  years.  A  man  of  broad 
culture,  and  quite  engaging  in  conversation,  he 
is  a  most  agreeable  companion,  in  addition 
to  being  a  true  friend.  In  art  circles  he  is  ac- 
cepted as  a  critic  of  unerring  judgment,  and 
pure   and   correct   taste. 

Captain  Cormac  owns  a  fine  law  and  miscel- 
laneous library,  a  well-furnished  and  attractive 
home  in  Sausalito,  and  valual)lc  redwood  tim- 
ber lands  in  Mendocino  county.  He  is  a  bach- 
elor, and  fifty-five  years  of  age. 


History  of  the  Bench  and  Bar  of  California. 


813 


W.    A.    COULTER. 

Major  W.  A.  Coulter,  referee  in  bankruptcy 
for  the  United  States  District  Court,  northern 
district  of  California,  at  San  Jose,  following 
the  example  of  Chief  Justice  Marshall,  studied 
law  while  an  officer  in  the  United  States  army, 
and  was  admitted  to  practice  while  on  staff 
duty  with  General  Canby  at  Richmond,  Va., 
on  the  gth  day  of  August,  1869.  He  was  ap- 
pointed master  in  chancery  for  the  Circuit 
Court  of  Virginia,  and  for  more  than  a  year 
was  the  judge-advocate  of  the  various  military 
commissions  organized  under  the  reconstruc- 
tion laws.  He  successfully  conducted  some  of 
the  most  important  trials  before  these  tri- 
bunals during  that  period.  In  the  latter  part 
of  1870  he  resigned  his  commission  in  the 
army  and  has  ever  since  been  engaged  in  the 
active   practice   of   his   profession. 

Fifteen  years  of  this  period  immediately  pre- 
ceding his  removal  to  California  was  in  the 
city  of  Washington,  where  he  was  counsel  in 
important  cases  before  the  Supreme  Court  of 
the  District  of  Columbia,  the  Supreme  Court 
of  the  United  States,  the  United  States  Court 
of  Claims,  the  department  of  justice,  and  the 
several   committees  of  congress. 

During  this  period  of  professional  activity 
at  the  national  capital,  his  personal  and  pro- 
fessional relations  with  eminent  men  of  the 
country,  gained  for  him  their  confidence  and 
appreciation,  and  he  brought  with  him  to  his 
new  field  of  labor  in  California  letters  from 
President  Garfield,  Secretary  of  the  Treasury 
Windom,  Justice  Stanley  Matthews  of  the 
Supreme  Court  of  the  United  States,  Senator 
Blair  and  Assistant  Attorney-General  Smith, 
commending  in  high  terms  his  attainments  and 
ability  as  a  lawyer. 

In  consequence  of  the  impaired  health  of  his 
wife,  Major  Coulter  came  to  California  in  1892, 
and  has  ever  since  resided  in  San  Jose.  In 
September,  1898,  he  was  appointed  referee  in 
bankruptcy  for  the  United  States  District 
Court  for  the  northern  district  of  California. 
His  decisions  'n  some  of  the  most  important 
and  difficult  cases  which  have  been  adjudicated 
under  the  new  bankruptcy  law  are  commended 
by  the  brethren  of  his  profession  as  able  and 
clear  expositions  of  the  provisions  of  that  act. 
Major  Coulter  is  a  Pennsylvanian  by  birth, 
and  an  Ohioan  by  adoption  and  education.  He 
entered  the  army  from  the  latter  State  in  Octo- 
ber, 1861,  when  a  mere  boy.  He  served 
throughout  the  Civil  War  with  honor  and  dis- 
tinction. His  services  on  the  staff  of  such 
distinguished  Generals  as  Major-General  W. 
H.  Emory  and  Major-General-  E.  R.  S.  Canby 
elicited  from  these  officers  letters  of  the  high- 
est praise  for  his  accomplishments  and  achieve- 
ments as  a  stafif  officer.  While  on  duty  with 
the  last-named  General,  he  visited  the  island 
of  Cuba,  and  by  tact  and  strategy,  secured  for 
the  United  States  government  the  first  and 
only  topographical  map  of  that  island  ever 
possessed  by  our  government.  The  letter  of 
General  Humphreys,  chief  of  engineers.  United 
States  armv,  acknowledging  their  receipt,  says  : 
"Tliese  ma'ps  are  of  great  value,  and  supply 
information  that  may  be  of  the  first  import- 
ance." 


The  training  of  the  soldier  is  always  benefi- 
cial to  the  attorney  and  counsellor-at-law,  for, 
while  courage,  fidelity  to  duty,  aggressiveness, 
promptness,  vigilance  and  honor  are  the  char- 
acteristics of  the  true  soldier,  they  are  quali- 
ties equally  essential  in  the  successful  lawyer. 


T.    J.    CROWLEY. 


T.  J.  Crowley  has  been  a  member  of  the  San 
Francisco  bar  for  the  past  thirty-three  years, 
having  been  admitted  to  the  Supreme  Court 
of  this  State  on  July  6th,  1868,  since  which 
time  he  has  been  engaged  in  active  practice, 
and  been  counsel  in  many  important  causes, 
both  civil  and  criminal.     Like  tnost  of  the  pro- 


fession, his  practice  is  of  a  general  nature,  in- 
volving every  branch  of  the  law.  He  was 
admitted  to  the  Supreme  Court  of  the  United 
States  in  October,  1886.  He  is  of  Democratic 
politics,  and  has  been  the  candidate  of  his 
party  for  Superior  Judge  of  Marin  county. 
His  home  is  in   San   Rafael. 


CHARLES  W.  CROSS. 

Charles  W.  Cross  was  born  in  Syracuse, 
New  York,  May  28,  1848,  a  clergyman's  son. 
He  was  educated  at  the  Northwestern  Uni- 
versity at  Evanston.  Illinois,  and  was  admitted 
to  the  bar  of  the  Supreme  Court  of  Illinois 
at  Chicago  in  1869.  Removing  to  California 
he  settled  at  Nevada  City,  and  practiced  law 
in  partnership  with  J.  B.  Johnson.  He  repre- 
sented Nevada  and  Sierra  counties  in  the  Slate 
senate  at  the  twenty-fifth  and  twenty-sixth  ses- 
sions, 188,^85,  and  was  chairman  of  the  judi- 
ciary connnittec  for  the  whole  period.  He  was 
a  member  of  the  last  constitutional  convention 
(1S78),  being  among  the  delegates  from  Ne- 
vada elected  on  the  Workingmen's  ticket, 
which  ticket  carried  that  county  by  2.048  votes 
out   of  a  total   of  2,378. 

Mr.  Cross  removed  to  San  Francisco  in 
March.  1886.  He  has  been  associated  with  a 
number  of  well-known  attorneys  in  that  city, 
but   is   now   alone   in   the   practice.     His   busi- 


814 


History  of  the  Bench  and  Bar  of  Calif  or  )iia. 


ness  is  of  large  volume,  and  verj-  valuable, 
mining  matters  predominating.  He  is  as  often 
seen  in  some  court  of  the  interior  as  in  his 
home  tribunals.  There  are  few  lawyers  who 
enjoy  such  a  liberal  income  as  he  has  been 
receiving  steadily  from  his  practice  for  the 
past  twenty  years.  He  is  a  cultured  man.  of 
most  agreeable  presence  and  address. 

Mr.  Cross  is  a  man  of  family,  having  grown 
sons,  and  owns,  among  other  valuable  posses- 
sions, a  fine  home  at  19  Baker  street.  San 
Francisco. 

WILLL\M  JESSE  CURTIS. 

William  Jes.se  Curtis  is  the  oldest  son  of 
Hon.  I.  C.  Curtis  and  Lucy  M.  Curtis.  His 
father  was  a  prominent  member  of  the  bar  of 
Marion  county,  Iowa,  for  many  years,  and 
represented  that  county  in  the  State  legislature 
for  several  terms.  His  mother  is  the  daugh- 
ter of  Jesse  L.  Holman.  one  of  the  early  jus- 
tices of  the  Supreme  Court  of  the  State  of 
Indiana,  and  a  sister  of  Hon.  William  S.  Hol- 
man,' who  for  more  than  thirty  years  was  a 
member  of  congress  from  that  State. 

Mr.  Curtis  was  born  at  Aurora.  Indiana,  on 
the  2nd  day  of  .\ugust,  1838.  In  1844  he  moved 
with  his  parents  to  the  then  Territory  of  Iowa, 
and  settled  in  Marion  county  near  the  present 
city  of  Pella.  He  was  educated  at  the  Central 
University  of  Iowa,  studied  law  in  his  father's 
office,  was  admitted  to  the  bar  in  1863.  and  be- 
came a  partner  of  his  father.  In  1861  he 
married  Miss  Francis  S.  Cowles.  of  Delaware, 
Ohio.  In  1864  he  crossed  the  plains  with  ox 
and  mule  teams,  came  to  California  and  set- 
tled in  the  city  of  San  Bernardino,  where  he 
has  resided  ever  since. 

The  first  five  years  after  his  arrival  in  Cali- 
fornia, he  devoted  to  teaching  school.  In 
January.  1872.  he  opened  a  law  office  in  the 
city  of  San  Bernardino.  In  1873  he  was  elected 
district  attorney  of  San  Bernardino  county  and 
was  re-elected  in   1875. 

He  has  been  associated  at  different  times 
in  the  practice  of  his  profession  with  Judge  H. 
C.  Rolfe,  Hon.  J.  W.  Satterwhite,  Judge  Geo. 
E.  Otis  and  Judge  F.  F.  Oster,  and  is  now  as- 
sociated with  his  .son,  Jesse  W.  Curtis.  The 
various  firms  with  which  he  has  been  con- 
nected all  occupied  prominent  positions  at  the 
bar  of  Southern  California,  and  were  retained 
in  many  important  civil  cases  tried  in  San 
Bernardino  county  and  frequently  in  cases 
tried  in  adjoining  counties  and  in  the  United 
States  Circuit  and   District  Courts. 

Mr.  Curtis  has  always  taken  an  interest  in 
matters  pertaining  to  the  welfare  of  the  city, 
county  and  State,  and  especially  in  the  subject 
of  education.  He  served  for  a  number  of  years 
as  president  of  the  city  board  of  education. 
He  is  president  of  the  Bar  As.sociation  of  the 
county  and  one  of  the  trustees  of  the  law 
library. 

C.    A.    DAUGHERTY. 

Mr.  Daugherty  is  a  native  of  Ohio,  and  left 
for  California  within  a  month  after  gradua- 
tion from  college.     He  taught  school  for  three 


years  in  Ohio  and  two  years  in  Calif(jrnia. 
He  went  to  Salinas  a  total  stranger,  and  what 
he  has  accomplished  has  been  by  hard  work. 
We  had  the  pleasure  of  making  his  acquaint- 
ance shortly  after  he  located  there.  He  had 
no  relatives  or  wealthy  friends  to  aid  him, 
l)ut  has  earned  all  that  he  has  acquired  by 
strict  attention  to  business  and  honest  dealing 
witli  every  one. 

Mr.  Daugherty  was  admitted  to  the  bar  in 
1888,  and  has  been  engaged  in  general  prac- 
tice ever  since  in  Monterey  and  surrounding 
counties.  He  is  in  partnership  with  Mr.  C.  F. 
Lacey.  This  firm  has  some  of  the  most  im- 
portant legal  business  in  Monterey  county, 
and  only  one  other  firm  in  that  county  exceeds 
it  in  amount  of  practice. 

Mr.  Daugherty  is  now  president  of  the  city 
board  of  education  of  Salinas,  and  chairman 
of  the  Republican  county  central  committee. 
He  is  also  United  States  commissioner  for  the 
United  States  District  Court  of  the  Northern 
district  of  California. 


CHARLES  CASSAT  DAVIS. 

Mr.  Davis  was  born  at  Cincinnati.  Ohio, 
in  1851.  He  was  graduated  from  Columbia 
College  Law  School  in  1875,  and  followed  the 
profession  in  his  native  city  for  ten  years.  In 
1880-81  he  was  a  member  of  the  Ohio  legisla- 
ture. He  drafted  the  law  of  that  state  which 
New  York  and  other  states  came  to  adopt,  in 
regard  to  assessment  life  insurance  companies. 

Mr.  Davis  removed  from  Cincinnati  to  Los 
.•\ngeles,  Cal.,  in  1885,  and  there  he  has  since 
lived  and  pursued  the  law.  His  practice  has 
principally  embraced  office  and  corporation 
l)usiness.  From  1896  to  1900  inclusive,  he  was 
a  nicml)er  of  the  board  of  education,  and  for 
the  last  half  of  the  period  was  president  of 
the  board.  Early  in  his  service  in  that  body, 
in  concert  with  Hon.  N.  P.  Conrey.  another 
member,  now  Superior  Judge,  he  set  on  foot 
and  led  an  investigation  into  .school  depart- 
ment methods,  which  resulted  greatly  to  the 
promotion  of  clean  local  politics.  In  1900  he 
was  a  candidate  for  the  Republican  nomination 
for  mayor  of  Los  Angeles,  and  without  any 
active  canvass,  came  within  a  few  votes  of 
receiving  the  nominal imi.  Tlic  nominee  was 
defeated  at   the  polls. 

Mr.  Davis  is  an  unmarried  man.  He  stands 
\-ery  high  in  the  estimation  of  his  fellow-citi- 
zens, and  has  many  >-ears  of  usefulness  before 
liini    ;i^   a    ])ul)lic   man. 


HENRY  H.  DAVIS. 


hlenry  H.  Davis  was  born  in  Exin.  Germany. 
September  27.  i860,  and  comes  of  that  stalwart 
stock  which  has  given  force  and  direction  to 
the  civilization  of  the  later  centuries,  .\rriv- 
ing  in  New  York  while  his  son  was  yet  a  child, 
after  a  brief  stay  there,  the  father  settled  in 
San  Francisco,  California,  leaving  his  family 
'o  follow  him  in  due  time,  if  he  found  matters 
to  his  liking  in  that  far-off  State. 

.■\fter  a  vear's  residence  here,  he  concluded 


History  of  the  Bench  and  Bar  of  California. 


815 


to  remain,  and  he  proceeded  to  make  a  home, 
to  which  his  family  came  in  1868.  Henry  was 
mimediately  sent  lo  the  pubHc  schools,  and  by 
dint  of  dili.sent  application  passed  with  dis- 
tinction through  all  the  various  classes  of  the 
prnn;.rj  and  grammar  grades.  Having  pre- 
pared for  a  collegiate  course  of  study,  he  was 
sent  to  the  State  University,  and  took  the 
classical  course  in  that  institution,  and  was 
graduated   witli   honors  in   1876. 


Although  scarcely  out  of  his  teens,  l)y  un- 
remitting study  and  tireless  industry,  he  had 
ppssessed  himself  of  a  liberal  education.  He 
irtiproved  a  year  of  relaxation  by  a  trip  to 
Europe,  visiting  his  native  land,  Germany: 
I^ussia,  England  and  various  countries  and 
places  of  note  in  the  Old  World.  Returning  to 
California  enriched  by  ol)servation  and  the  ex- 
periences of  extensive  travel,  he  entered  on  a 
cour.se  of  law  study  at  the  Hastings  College 
of  the  Law  of  the  State  University.  As  his 
natural  inclination  lay  in  the  direction  of  his 
studies,  his  progress  was  both  rapid  and  thor- 
ough, so  that  on  graduating  in  1882  he  was 
immediately  admitted  to  practice  in  the  State 
and  Federal  courts.  Without  wealth  or  family 
or  political  influence,  he  had  to  rely  on  his 
unaided  individual  exertions  to  obtain  success 
and  standing  in  his  profession.  Nevertheless, 
the  energy  and  native  capacity  which  have 
always  carried  him  through  successfully  thus 
far,  still  stood  him  in  good  stead,  and  he  has 
gradually  worked  up  to  a  lucrative  practice, 
his  operation  being  mostly  in  the  Su])erior  and 
Supreme  and  Federal  Courts,  and  his  clients 
are  of  the  solid  and  respectable  character, 
which  insures  safe  and  substantial  remunera- 
tion He  occupies  several  offices  in  the  build- 
ing No.  420  California  street,  San  Francisco, 
and  has  one  of  the  largest  law  libraries  in  the 
State.  He  owns  an  attractive  and  elegant  resi- 
dence on  California  street,  besides  a  lot  of 
other  valuable  real  estate  in  different  parts  of 
the  city  and  State,  all  the  result  of  his  own 
efforts. 

Mr.  Davis  is  an  active  member  of  iiuiiu-rous 


fraternal  and  benevolent  associations,  and  as 
he  unites  great  natural  intelligence,  genial  man- 
ners and  great  affability,  his  counsel  and  as- 
sistance are  in  great  request  in  these  organiza- 
tions. He  is  a  meml)er  of  King  Solomon's 
Lodge,  No.  260,  F.  and  A.  ^L ;  Past  Chan- 
cellor Commander  of  Laurel  Lodge  No.  4, 
K.  of  P. ;  S.  F.  Chapter  Royal  Arch  ALasons, 
and  California  Council,  Royal  and  Select  Mas- 
ter Masons.  He  has  been  three  times  elected 
Exalted  Ruler  of  Golden  Gate  Lodge,  No.  6,  of 
the  B.  and  P.  Order  of  Elks ;  Past  Chief  Ran- 
ger of  Court  Robin  Hood,  No.  i.  Foresters 
of  America ;  a  member  of  Cremieux  Lodge. 
No.  325,  L  O.  O.  B. ;  a  member  of  Division 
No.  2,  Uniform  Rank  K.  of  P.;  Past  Master 
Workman,  A.  O.  U.  W.,  and  a  member  of  the 
Independent  Order  of  Old  Friends.  He  has 
been  identified  with  much  of  the  litigation 
that  has  arisen  in  fraternal  orders  in  manj- 
years  past.  Of  political  organizations  he  is  a 
member  of  the  famous  Bear  Club,  and  though 
always  a  warm  partisan  and  staunch  supporter 
of  his  party  and  its  principles,  he  has  never,  in 
ihe  sense  of  being  an  office-seeker,  been  a  poli- 
tician. Mr.  Davis  has  maiiy  warm  friends 
who  rejoice  in  his  success,  and  who  wish  him 
abundant  prosperity  and  happiness  in  the  fu- 
ture.   

WILLL\M  R.  DAVIS. 

William  R.  Davis,  of  Oakland,  has  lived  in 
California  forty-six  years  of  the  fifty  of  his 
life.  He  was  educated  in  the  public  schools 
and  the  University  of  California,  afterwards 
taking  up  the  profession  of  the  law,  which 
he  still  pursues.  Following  are  some  of  the 
steps  in  his  work  and  career. 


Ill  1S74  iu'  w;iN  grailu.ited  Iroiii  the  Univer- 
sity of  California,  receiving  tiie  degree  .\.  B. 
In  1875  he  was  principal  teacher  in  Washing- 
ton College.  In  1876  he  began  the  study  f»f 
law.  In  1877  he  received  the  degree  of  .\.  ^i.. 
from  the  I'liivcrsity  of  California.  He  was 
admitted  to  the  bar  by  the  Supreme  Court  of 
r.ilifornia  in    187S,  rmd   in    1880.  to  the  United 


816 


History  of  the  Bench  and  Bar  of  California. 


1    ( 


States  District  and  United  States  Circuit 
Courts,  and  in  1886,  to  the  bar  of  the  Supreme 
Court  of  the  United  States. 

In  1880-1.  and  again  in  the  years  1896-7-8, 
Mr.  Davis  was  president  of  the  Alumni  Asso- 
ciation, University  of  California. 

He  was  mayor  of  the  city  of  Oakland  for 
the  years  1887-88,  being  elected  by  the  Republi- 
can party.  In  1890,  he  was  chairman  of  the 
Alameda  county  delegation  in  the  Republican 
State  convention,  and  chairman  of  the  third 
district  congressional  convention. 

He  was  president  of  the  national  Republican 
League  of  Alameda  county,  and  chairman  of 
th*'  third  district  congressional  convention  in 
i8q6. 

Mr.  Davis  was  bom  in  Iowa,  February  26, 
1850,  but  is  a  Californian  through  and  through, 
having  lived  in  this  State,  as  shown  above, 
since  he  was  four  years  of  age.  During  the 
past  twenty-two  years  he  has  followed  his 
profession  with  great  diligence,  and  has  had  a 
full  measure  of  success,  standing  today  one 
of  the  acknowledged  leaders  of  the  bar  of 
the  State.  For  many  years  his  voice  has  been 
heard  in  State  and  national  campaigns,  always 
in  support  of  the  Republican  party,  in  whose 
principles  and  course  in  government  he  is  a 
firm  believer.  His  services  in  the  last  presi- 
dential campaign  were  everywhere  recognized 
by  his  party  as  of  the  highest  value. 

During  his  long  professional  life  Mr. 
Davis  has  accomplished  a  vast  amount  of 
work.  Called  at  times  to  Oregon  and  Nevada 
in  addition  to  his  engagements  in  the  courts 
of  California,  he  has  nevertheless  been  able 
to  do  his  full  share  of  work  for  our  univer- 
sity as  one  of  its  distinguished  graduates,  as 
president  of  the  Alumni  Association  and  in 
its  financial  support:  and  to  strengthen  the 
cause  of  the  political  party  to  which  he  gives 
allegiance.  He  has  made  in  many  parts  of  the 
State  addresses  upon  educational  questions  and 
matters  of  public  concern,  including  addresses 
to  teachers'  institutes,  to  fraternal  organ- 
izations, at  the  university,  to  literary  and  pro- 
fessional societies,  political  discussions,  me- 
morial addresses  and  orations. 

The  influence  of  Mr.  Davis  in  public  life  has 
been  for  harmony  and  construction  as  against 
contention  and  tearing  down.  It  has  been  re- 
peatedly said  of  his  course  as  mayor  of  Oak- 
land that  the  city  never  had  a  better  admin- 
istration. During  his  term  the  freeholder 
charter  was  framed  and  adopted.  At  the  re- 
(|uest  of  the  freeholders  he  made  suggestions, 
nineteen  in  number,  all  of  which  were  adopted 
and  which  have  since  proved  of  high  value. 
Mr.  Davis  declined  renomination.  The  press 
of  his  home  city,  at  the  close  of  his  official 
term,  irrespective  of  party,  expressed  appro- 
val of  his  way  of  directing  public  affairs,  one 
journal  .saying:  "He  could  have  had  a  second 
nomination  as  he  received  the  first,  by  accla- 
mation." .\nother :  "He  has  filled  the  position 
with  intelligence,  dignity  and  application,  has 
acted  with  a  mind  single  to  the  best  interests 
of  Oakland."  .\nothcr.  a  Democratic  journal: 
"He  has  made  a  good  mayor  and  deserves  re- 
endorsement.     Our  Democracy  is  not  so  thick 


that  we  cannot  speak  the  truth  of  him."  An- 
other: "His  last  message,  like  all  his  former 
communications,  is  characterized  by  singular 
good  sense,  and  a  thorough  understanding  of 
municipal  affairs.  He  may  be  congratulated 
on  completing  his  term  without  a  recognizable 
mistake,  without  an  act  called  in  question." 

Of  the  many  important  matters  which  have 
been  placed  in  his  professional  hands,  Mr. 
Davis  considers  perhaps  the  most  important, 
as  it  has  been  the  most  difficult,  the  litigation 
comprising  the  Oakland  water  front  cases, 
in  which  he  was  employed  by  the  city,  and 
which  involved  research  through  a  history  of 
over  forty  years — ordinances,  legislation,  con- 
tracts, previous  judgments  against  the  city, 
deeds,  ratifications,  compromises,  tax  sales — in 
all,  thirteen  independent  derivations  or  chains 
of  title  asserted  against  the  city,  and  also 
involving  principles  of  State  and  national  con- 
cern, and  well  nigh  innumerable  complex 
questions  of  law.  Although  he  was  not  of 
the  political  party  then  in  office,  he  was  unani- 
mously asked  by  the  city  attorney,  city  coun- 
cil and  mayor  to  act  as  counsel  for  the  city 
in  this  water-front  litigation.  The  briefs  and 
arguments  of  Mr.  Davis  and  his  associates  in 
these  cases  are  viewed  as  exhausting  the  sub- 
ject of  a  municipality's  rights  (as  grantee  of 
a  State)  as  to  shore-lands  and  navigable 
waters. 

We  have  tried  to  be  careful  in  condensing 
the  story  of  a  remarkably  active  life.  Mr. 
Davis  is  in  now  in  his  prime,  and  is  still  in  full 
practice  of  law  at  his  home  in  Oakland.  He 
married  in  1879.  and  his  family  consists  of 
his  wife  and  two  sons. 


GEORGE  E.  De  GOLIA. 

Mr.  DeGolia  was  born  at  Placerville  (Hang- 
town),  El  Dorado  county,  California,  May  3, 
1857.  He  lived  the  ordinary  life  of  a  coun- 
try boy,  and  at  the  age  of  fourten  was  ap- 
pointed a  page  in  the  assembly.  From  his 
earnings  he  saved  sufficient  to  enable  him  to 
attend  the  State  University.  He  entered  the 
university  at  the  age  of  sixteen,  and  was  grad- 
uated in  1877,  being  fifth  in  a  class  of  twenty- 
six,  and  being  first  in  the  college  of  civil  en- 
gineering, which  course  he  took  there,  and  also 
taking  a   literary  course. 

In  1878  Mr.  DeGolia  became  managing  editor 
of  the  Oakland  Daily  Transcript.  He  was  in 
the  newspaper  business  about  a  year.  When 
the  Hon.  Henry  Vrooman  was  elected  district 
attorney  in  March,  1878,  Mr.  DeGolia  en- 
tered his  office  as  clerk  and  student.  He  was 
admitted  to  practice  by  the  Supreme  Court, 
upon  examination,  in  1879.  At  the  legislative 
session  of  1880  he  was  secretary  of  the  senate 
judiciary  committee.  He  practiced  law  from 
1879  until  1883.  and  was  appointed  assistant 
district  attorney  of  Alameda  county,  which 
position  he  held  for  six  years.  In  1889  Mr. 
DeGolia  formed  a  law  partnership  with  Mr. 
Wooman.  and  upon  the  latter's  death  in  that 
year,  succeeded  to  much  of  his  practice,  and 
to  Mr.  Vrooman's  fine  library.  He  has  been 
engaged  in  active  practice  since,  and  has  been 


W,  E.  F.  Deal 


History  of  the  Bench  and  Bar  of  California. 


Ml) 


and  is   still    interested   in   many   larj^e   case>   in 
Alameda  connt}-. 

Mr.  DeGolia  began  to  lake  an  interest  in 
politics  in  1878.  He  soon  became  actively  en- 
gaged on  tbe  Republican  side  in  Alameda 
county,  and  continued  st)  until  1894.  After 
Mr.  Vroonian's  death,  and  until  1894,  he  was 
looked  upon  as  the  Republican  leader  in  Ala- 
meda county.  He  took  a  prominent  part  in 
State  matters,  going  to  the  national  conven- 
tion of  1888.  at  Chicago.  He  has  been  sec- 
retary of  the  Oakland  Bar  Association  since 
its  organization,  and  is  a  charter  member  of 
the  Athenian  Club.  He  is  also  a  prominent 
member  of  Oakland  Commandery,  Knights 
Templar,  as  well  as  the  Scottish  Rite  branch 
of  Masonry,  also  of  the  Mystic  Shrine.  In 
1891  he  organized  a  lodge  of  Elks  in  Oakland, 
of  which  organization  he  was  Exalted  Ruler 
for  several  years,  and  represented  the  order  in 
the  Grand  Lodge  in  the  East  at  several  annual 
.sessions.  He  is  a  leading  member  of  Piedmont 
Parlor.  Native  Sons  of  the  Golden  West,  and 
has  been  a  delegate  to  the  Grand  Lodge  of  that 
order  since  1892. 

Mr.  DeGolia  was  married  in  1883  to  Caro- 
line Barroilhet  Rabe,  daughter  of  Dr.  Rabe, 
who  was  a  distinguished  man  in  early  Cali- 
fornia history.  He  has  two  children,  a  girl, 
sixteen,  and  a  boy,  fourteen.  He  is  very  prom- 
inent in  Oakland  society,  being  one  of  the 
leading  members  of  the  Oakland  Golf  Club. 
Mr.  DeGolia  has  been  notable  in  college  ath- 
letics, football,  baseball,  swimming,  rowing, 
and  has  kept  it  up  a  good  deal  to  the  present 
time.  He  is  considered  the  best  amatetir  with 
the   foils  in   Oakland. 

Mr.  DeGolia  has  established  quite  a  reputa 
tion  in  Oakland  as  a  corporation  attorney  and 
in  probate  practice,  having  been  attorney  for 
the  public  aduministrator  a  number  of  years, 
and  an  authority  upon  points  in  probate  prac- 
tice. He  has  been  unusually  successful  in 
winning  lawsuits. 

He  endeavors  to  settle  lawsuits  out  of  court. 
rather  than  in  court  contests,  and  has  ob- 
tained the  confidence  and  esteem  of  the  entire 
community,  both  as  a  man  and  as  a  lawyer. 
He  considers  it  a  compliment  to  have  it  said  of 
him  that  no  lawyer  ever  asks  him  for  a  rvrit- 
trn  stipulation. 

\V.  E.  F.  DEAL. 

Mr.  Deal  is  a  citizen  of  the  State  of  Nevada, 
where  he  has  a  large  law  business,  but  he  has 
also  been  practicing  at  the  San  F"rancisco  bar 
since  the  year  189.3,  in  partnership  with  Ed- 
mund Tauszky  and  George  R.  Wells  (Deal. 
Tauszky  &  Wells),  lie  is  an  c.-irly-day  Cali- 
fornian. 

Mr.  Deal  was  born  in  .Maryland.  March  8. 
1840.  He  prepared  for  college  at  R.  G.  Cha- 
ney's  Academy,  at  Owensville.  Md.,  and  New- 
ton University,  Baltimore  City,  and  entered 
Dickinson  college.  Pennsylvania,  in  Se])teniber. 
1855.  He  was  graduated  from  that  institu- 
tion in  1859.  with  the  degree  of  Bachelor  of 
Arts,  and  received  the  degree  of  Master  of 
Arts  from  the  same  college  in   1874. 


.Mr.  peal  left  for  California  by  steamer  iruni 
New  York  city  in  August.  1859.  arriving  al  San 
Francisco.  September  12th.  His  father.  Dr. 
W.  Grove  Deal,  left  Baltimore  for  California 
a  decade  prior,  and  reached  San  Francisco  by 
way  of  Panama,  in  the  spring  of  1849.  He  was 
a  Doctor  of  Medicine  as  well  as  a  local  Meth- 
odist preacher.  Settling  in  Sacramento  in 
1849,  JJr.  Deal  practiced  medicine,  and  on  Sun- 
days preached  the  gospel.  The  Doctor  pur- 
chased the  historic  spot.  "Sutler's  Fort."  when 
cholera  broke  out.  and  made  of  it  a  cholera 
hospital,  conducting  it  at  his  own  expense. 

The  elder  Deal  was  also  a  public  speaker  of 
ihe  first  class.  He  was  a  member  of  the  as- 
sembly al  the  first  session  of  the  legislature. 
He  was  an  old  Whig,  and  when  that  party 
passed  out  he  'joined  the  Know-Noihing.  or 
Native  American  party.  In  the  presidential 
election  of  1856  he  took  the  stump  for  Fill- 
more. We  heard  him  then  with  the  most  pleas- 
urable feelings.  Baker  was  the  only  man  who 
had  greater  power  over  a  public  assemblage. 
Thomas  Fitch  had  not  arrived.  Dr.  Deal  soon 
afterwards  became  a  Democrat,  and  remained 
so  in  all  his  after  life.  In  the  Civil  War  he 
served  to  the  end  as  a  surgeon,  and  was  then 
honorably    discharged. 

Mr.  Deal,  the  bar  leader  of  Nevada,  who 
is  now  at  the  bars  of  two  States,  taught  school 
at  Oakland.  Colusa,  and  Nevada  City.  At  the 
latter  place,  where  Superior  Judge  James  V. 
Coffey  was  one  of  his  pupils,  he  was  principal 
of  the  school  until  he  left  for  Virginia  City. 
Nevada  territory.  This  was  on  the  26th  of 
May.  1863.  In  Virginia  City  he  entered  as  a 
clerk  the  law  office  of  Perley  &  De  Long.  He 
was  admitted  to  the  bar  of  the  Nevada  Su- 
preme Court  in  1865.  but  continued  in  his  place 
as  law  clerk  until  Mr.  Perley  removed  to 
While  Pine  in  1866.  the  firm  then  dissolving. 
Mr.  De  Long  a  few  years  later  Ijecame  United 
Slates  minister  to  Japan. 

Mr.  Deal  then  served  as  oflice  attornev  for 
llillyer  (C.  J.)  &  Whitman  (B.  C).  'until 
1868.  when  the  last  named  was  elected  Judge 
of  the  Supreme  Court.  A  ])artnership  was  then 
formed  between  Mr.  Hillyer  and  Mr.  Deal. 
which  continued  from  November.  1868.  to 
January.  1869.  when  William  S.  Wood  entered 
the  firm,  which  lasted,  under  the  style  iif  Hill- 
yer.  Wood  &   Deal,   for  two  years. 

In  1871-72.  Mr.  Deal  i)r;icliced  alone.  In 
1873  he  formed  a  partnerslii|)  with  Hon.  James 
1'.  Lewis,  who  had  been  Chief  Justice  of  the 
Siii)reme  Court.  This  association  continued 
uiuil  1884,  when  Ju<lge  Lewis  removed  to  Ari- 
/iMia. 

in  June,  1894.  the  present  San  Francisco  law 
firm  111'  Deal.  Tauszkv  ^:  Wells  was  esi.ib- 
lishe.l. 

.Mi-.  De.il  .ilw.iys  acii'd  with  ilic  Democr;itic 
p.irty  until  the  Silver  i)arly  was  formed  in 
Xevad.i  in  1893.  He  has  never  held  .111  olTice 
of  profit,  lie  has  never  run  for  an  olVice  of 
profit  to  which  he  cared  to  be  elected,  except 
that  ot  District  Judge  of  Storey  county.  Ne- 
vada, in  i8fi8.  He  ran  for  Congress  on  the 
Democratic   ticket    in    1878.   and    was   defeated 


820 


History  of  the  Bench  and  Bar  of  California. 


by  R.  M.  Daggett,  Republican.  He  was  elected 
a  presidential  elector,  when  Nevada  voted  for 
General  Hancock  for  President,  in  1880.  He 
was  appointed  one  of  the  commissioners  for 
the  care  of  the  insane  by  act  of  the  legislature 
in  1881.  Under  this  act  and  this  commission 
the  asylum  for  the  insane  of  Nevada  was 
built  at  Reno.  Until  that  time,  the  Nevada 
insane  patients  had  been  cared  for  in  the 
asylums  of  California.  He  served  as  such  com- 
missioner for  four  years.  For  the  first  six 
months  of  this  period  he  gave  himself  to  a 
struggle  to  keep  the  management  of  the  asy- 
lum out  of  politics,  but  it  was  unavailing. 

Mr.  Deal  was  elected  by  the  people  of  Ne- 
vada, at  the  general  election  in  1894,  a  regent 
of  the  State  university.  In  1898  he  was  re- 
elected, and  his  present  term  will  expire  at  the 
close  ot  1902.  He  has  refused  to  run  for  any 
oflFice  of  profit  since  1878.  He  was  a  hard 
working  lawyer's  clerk  for  five  years,  and  has 
practiced  in  the  State  and  Federal  courts  of 
Nevada  and  California  for  thirty-three  years. 
He  is  attorney  for  the  Comstock  Pumping 
Association,  composed  of  all  corporations  own- 
ing claims  on  the  Comstock  lode.  This  asso- 
ciation was  formed  to  drain  water  from  below 
the  Sutro  tunnel  level.  He  is  attorney  for  all 
the  corporations  owning  claims  on  that  lode, 
and  is  the  attorney  and  a  director  of  the  Vir- 
ginia &  Truckee  Railroad.  Having  large  busi- 
ness and  law  offices  on  both  sides  of  the  Sierra, 
he  has  occasion  to  cross  the  mountains  every 
few  weeks,  and  is  the  greatest  traveler  of  the 
bar  of  either  State,  or  perhaps  any  State. 

Mr.  Deal  is  of  large  stature  physically,  as 
the  foregoing  reference  to  his  practice  demon- 
strates him  to  be  mentally.  He  is  of  fine  per- 
sonal appearance,  cordial  manners,  and  com- 
mands the  esteem  of  all  classes.  In  1876  he 
was  admitted  to  the  bar  of  the  United  States 
Supreme  Court  at  Washington.  He  was  mar- 
ried to  Miss  Roberta  Griffith,  at  Baltimore, 
Md..  on  May  4,  1875.  His  children,  three 
daughters  and  a  son,  were  all  born  at  Virginia 
City.   Nevada. 

It  may  be  added  that  long  before  the  present 
firm  of  Deal.  Tauszky  &  Wells  was  established. 
Mr.  Deal  had  a  short  business  at  San  Francisco 
with  John  W.  North  and  James  F.  Lewis, 
under  the  style  of  North.  Lewis  &  Deal.  This 
was  in  1880-81.  All  three  gentlemen  were  of 
the  first  distinction  as  lawyers  and  citizens. 
The  first  named  had  been  a  Justice  of  the  Su- 
preme Court  of  Nevada  territory.  He  founded 
Riverside,  and  a  sketch  of  him  is  in  this  His- 
tory. Judge  Lewis,  who  has  been  already  re- 
ferred to,  possessed  great  legal  attainments  and 
natural  ability.  He  died  suddenly,  at  Fort 
Yuma,  in  August.  1886,  at  the  age  of  fifty 
years.  He  was  a  native  of  Wales.  His  burial 
was  in  San  Francisco,  from  the  First  Unita- 
rian church,  the  Rev.  Dr.  Lathrop.  of  the 
Episcopal  church,  assisting  at  the  ceremonies. 

E.    N.   DEUPREY. 

Here  is  a  stanch  and  sturdy  mind,  as  prime 
as  ever,  after  being  in  play  at  the  bar  of  San 


Francisco  for  thirty  years.  Eugene  N.  Deuprey 
was  born  in  Louisiana,  in  1850,  but  he  has 
lived  in  San  Francisco  since  earliest  boyhood, 
and  all  his  professional  career  has  been  passed 
there.  He  was  educated  in  the  public  schools 
of  that  city.  He  prepared  for  the  bar  while 
acting  as  clerk  in  the  office  of  the  great  law 
firm  of  Shafter,  Park  &  Shafter.  His  powers- 
of  mind  and  inborn  aptitude  for  the  profession 
he  was  seeking  attracted  the  notice  of  able 
men.  James  McM.  Shafter,  especially,  had 
expressed  very  high  admiration  for  his  tal- 
ents. 

Mr.  Deuprey  w-as  admitted  to  the  bar  of  the 
State  Supreme  Court  in  1871.  He  very  soon 
got  into  good  practice,  and  he  has  been  a  nota- 
ble figure  at  that  bar  throughout  the  long 
period  since  passed.  The  trite  phrase  as 
to  being  in  "active  practice"  may  well  be  em- 
ployed in  allusion  to  him.  He  never  seems  to 
rest.  "Quiet  to  quick  bosoms  is  a  hell,"  and 
the  law  of  Mr.  Deuprey's  being  urges  him  on 
without  apparent  respite.  The  latest  great  oc- 
casion w'hen  his  unrelaxing  indefatigability 
drew  to  him  the  eyes  of  the  American  bar, 
was  in  the  protracted  trial  of  W.  H.  T.  Dur- 
rant  for  murder.  He  displays  equal  ability 
in  all  departments  of  the  practice,  but  the  great 
bulk  of  his  business  has  been  at  the  criminal 
bar. 

Mr.  Deuprey  is  of  Democratic  politics.  He 
has  stumoed  for  his  party,  and  in  1898  was 
president  of  the  Democratic  nominating  con- 
vention of  his  city.  As  a  speaker  he  is  rapid 
and  forceful.  He  always  commands  attention 
and  rewards  the  listener,  whether  in  court,  in 
political  conventions  or  before  the  masses.  At 
present  he  is,  and  has  been,  since  the  opening 
of  the  year  1900,  assistant  district  attorney  of 
San  Francisco,  under  Hon.  L.   F.   Byington. 


W.  L.  DUFF. 


Mr.  Duff  was  liorn  on  the  25th  day  of  Au- 
gust, 1843,  in  Lafayette  county,  Mississippi. 
He  served  in  the  Confederate  Army  from  the 
beginning  to  the  end  of  the  war,  holding  the 
rank  at  different  periods  of  captain,  major, 
lieutenant-colonel  and  colonel  of  his  regi- 
ment, the  Eighth  Mississippi  Cavalry.  For 
the  last  two  years  of  the  war  he  was  a  mem- 
ber of  the  Mississippi  legislature  (1865-66), 
during  which  time  he  was  aide-de-camp  on  the 
Governor's  staff,  and  also  major-general  of 
militia. 

General  Duff  was  admitted  to  the  practice 
of  law  in  all  of  the  courts  of  law  and  equity 
in  the  state  of  Mississippi  in  the  early  part 
of  1866.  He  moved  to  ^Icmphis,  Tennessee, 
in  1867,  and  was  admitted  to  the  practice  of 
law  in  the  state  courts,  and  also  in  the  Fed- 
eral, District  and  Circuit  Courts,  in  1867, 
and  also  in  the  United  States  Supreme  Court 
in  1878.  He  moved  to  Eureka,  California,  in 
1881,  and  was  admitted  to  practice  in  Cali- 
fornia by  the  Supreme  Court  in  1883.  He 
has  since  always  lived  in  Eureka,  and  is  in 
full    and    lucrative   practice. 


Henry  C,  Dibble 


History  of  the  Bench  and  Bar  of  California. 


823 


HENRY  C.  DIBBLE. 

Judge  Dibble,  who  has  been  conspicuous 
through  a  long  period  not  only  at  the  bar  and 
in  politics,  but  in  the  field  of  journalism  and 
literature,  has  been  at  the  bar  of  this  State 
since  1883.  He  located  in  San  Francisco  in 
February  of  that  year.  In  1885-86  he  was 
assistant  United  States  attorney  under  Hon. 
S.  G.  Hilborn,  and  he  has  been  a  member  of 
the  assembly  at  every  legislative  session  sinci 
that  time.  He  prefers  the  lower  house,  as 
being  nearer  the  people,  and  never  lets  his 
name  be  used  in  connection  with  the  State 
senate.  He  is  always  the  leader  of  the  Re- 
publican side.  During  this  period  also  he  has 
been  at  times  editorial  writer  for  the  principal 
newspapers  of  his  party. 

Judge  Dibble  was  born  in  Indiana  on  the 
8th  of  November,  1844.  He  enlisted  in  the 
Union  army  in  the  Civil  War,  at  the  age  of 
eighteen.  He  lost  a  leg  at  the  battle  of  Port 
Hudson.  Settling  in  Louisiana  at  the  close 
of  the  war,  he  prepared  himself  for  the  bar, 
and  was  admitted  to  practice  by  the  Louisiana 
Supreme  Court  in  1865.  He  was  not  yet 
twenty-one  years  of  age.  Two  years  later  he 
graduated  from  the  law  department  of  the  Uni- 
versity of  Louisiana.  Entering  politics,  he  at 
once  took  a  leading  positon — indeed,  it  is  said 
that  he  was  at  the  head  of  the  Republican  or- 
ganization at  the  age  of  twenty-three  years.  He 
maintained  this  prominence  for  some  ten  years, 
and  in  that  period  was  Judge  of  the  Eighth 
District  Court,  and  assistant  attorney-general 
of  the  state.  He  was  also  president  of  the 
school  board  of  New  Orleans  for  six  years. 

Before  Judge  Dibble  removed  from  Louis- 
■  iana  to  California,  he  spent  some  two  years  in 
Arizona,  practicing  law  at  Tombstone,  and  at 
the  same  time  superintending  the  mines  of 
Haggin  &  Hearst.  He  located  in  San  Fran- 
cisco in  1883,  and  was  for  three  years  in  law 
practice  with  Hon.  James  F.  Lewis.  ex-Chief 
Justice  of  the  Supreme  Court  of  Nevada.  Aft- 
erwards he  was  in  partnership  with  Louis  T. 
Haggin,  son  of  James  B.  Haggin. 

Judge  Dibble  has  raised  and  educated  a 
family  of  four  sons  and  two  daughters.  Two 
of  his  sons  are  in  law  partnership  with  him  at 
San  Francisco. 

The  Judge  is  the  author,  among  other  pro- 
ductions, of  a  strong,  romantic  novel  of  west- 
ern life,  entitled  "The  Sequel  to  a  Tragedy," 
published  by  the  Lippincotts,  in  October,  igoo. 
As  a  public  speaker.  Judge  Dibble  is  in  the  first 
rank.  

JOHN    H.    DICKINSON. 

General  John  H.  Dickinson,  so  long  con- 
spicuous not  only  at  the  bar,  but  in  Repub- 
lican politics  and  military  circles,  is  a  native 
of  the  state  of  Virginia.  He  was  born.  April 
8,  1849.  He  has  always  followed  the  profes- 
sion of  law  in  San  Francisco.  His  admission 
to  practice  by  the  Supreme  Court  occurred  in 
April,  1873.  While  keeping  his  office  in  the 
metropolis,  he  established  his  residence  across 
the  bav,  at  Sausalito.  Marin  coimty.  in  1803. 
He  is  a  man  oi  faniilv. 


General  Dickmson  represented  a  San  Fran- 
cisco district  in  the  State  senate  at  the  ses- 
sions of  1880,  1881,  and  the  extra  session  of  the 
latter  year,  and  was  State  senator  for  Marin 
and  Contra  Costa  counties  at  the  sessions  of 
1897,  1890,  and  the  extra  session  of  1900.  He 
IS  a  man  of  soldierly  bearing,  and  has  always 
been  connected  prominently  with  the  militia 
having  been  colonel  of  the  First  Regiment,  n' 
G.  C,  for  eight  years,  ending  in  1891,  and 
brigadier-general,  by  appointment  of  Governor 
Markham,  1891-1894.  His  law  practice  is 
general  and  very  valuable.  He  was  attorney 
for  the  executor  in  the  Jessup  case,  men- 
tioned in  the  sketch  of  Judge  Charles  N.  Fox. 
In  the  Durrant  murder  case,  the  persistent  ef- 
forts of  himself  and  Hon.  Eugene  N.  Deu- 
prey  to  save  the  condemned  man  are  fresh  in 
memory.  He  has  the  business  of  the  house  of 
H.  S.  Crocker  &  Co.,  and  other  large  firms  and 
corporations. 


W.  A.  DOW. 


Mr.  Dow  was  born  in  Sutter  County,  Cali- 
fornia, January  3rd,  1866.  In  1880  he  was 
sent  to  Oakland  to  attend  school.  He  grad- 
uated from  the  Oakland  Grammar  School  in 
1880,  and  from  the  Oakland  High  School  in 
1884.  He  entered  the  University  of  Califor- 
nia in  1885,  and  graduated  therefrom  in  1889. 
He  was  admitted  to  the  bar  by  examination 
before  the  Supreme  Court  in  1890,  and  im- 
mediately thereafter  commenced  the  practice 
of  law  in  San  Francisco.  In  1889  Mr.  Dow 
married  Miss  Lizzie  Harrell,  a  resident  of 
Oakland,  and  built  a  home  in  East  Oakland, 
where  he  has  ever  since  resided  with  hi.s 
family,  now  consisting  of  wife  and  three 
children.  In  1893  he  was  elected  to  the  Oak- 
land City  Council,  and  continued  as  such 
officer,  including  one  re-election,  until  1897. 
From  April,  1894,  until  April,  1895,  he  was 
President  of  the  Council.  In  1897  he  was 
elected  City  Attorney  of  Oakland  and  Ex- 
Officio  Commissioner  of  Public  Works.  In 
1899  he  was  re-elected  to  that  ofl[ice,  which 
position  he  is  now  occupying.  The  records  of 
the  State  Supreme  Court,  and  of  the  LTnifed 
States  Courts  show  that  during  his  incum- 
bency of  the  office  of  City  Attorney  of  Oak- 
land he  has  successfully  conducted,  unassisted, 
numerous  suits  in  behalf  of  the  city,  involv- 
ing large   interests. 

JOHN  A.  DONNELL. 

Major  John  A.  Donnell.  of  the  Los  Angeles 
l)ar,  has  had  a  conspicuous  military  and  civil 
career.  He  was  born  in  Decatur  county,  In- 
diana, in  1838,  removed  with  his  parents  to 
Iowa  in  1854,  and  was  graduated  with  first 
honors  from  Washington  College  in  1801.  The 
Civil  War  opened  just  then,  and  he  enlisted 
and  served  throughout  that  conflict,  being  pro- 
moted to  adjutant  for  one  of  his  acts  of  gal- 
lantry on  the  field.  After  the  war  he  studied 
law  in  tlu'  office  of  Hon.  G.  D.  Wood  in  Si- 
gotinicy,  Iowa.  He  was  admitted  to  the  bar 
in   i8()7.     He  enjoyed  great  popularity  and  was 


824 


History  of  the  Bench  and  Bar  of  California. 


(.lectcd  at  different  times  to  the  offices  of 
county  clerk,  county  attorney,  president  of  the 
hoard  of  education,  member  of  the  city  coun- 
cil of  Sigourney,  district  attorney  of  the  Sixth 
Judicial  district,  and  in  1886  ran  for  congress 
in  the  Sixth  Congressional  district  oi  Iowa. 

Major  Donnell  came  to  California  in  De- 
cember, 1887.  Locating  at  L06  Angeles,  he 
was  engaged  in  law  practice,  when,  in  1889, 
he  was  appointed  assistant  district  attorney. 
He  was  elected  district  attorney  in  the  fall  of 
1894,  and  served  a  term  of  two  years. 

The  Major  married,  at  Sigourney,  Iowa,  in 
February,  1868,  Miss  Sue  C.  Hogin,  daughter 
of  Hon.  J.  C.  Hogin,  of  that  place.  Mrs. 
Donnell  died  in  October,  1887,  immediately 
before  the  Major  removed  to  California.  His 
family  consists  of  five  sons  and  three  daugh- 
ters. The  eldest  daughter  is  married  to  \V. 
E.  B.  Partridge,  of  the  Partridge  &  A! ford 
Iron  Works  of  Los  Angeles.  .All  tlu-  older 
children    are    in    business. 

Major  Donnell's  parents  were  born  in  Ken- 
tucky. His  grandfather  was  a  soldier  in  tiie 
Revolution,  taking  i)art   in  many  battles. 


H?:NRY  C.  DILLON. 


This  gentleman,  who  has  had  so  successful 
a  career  at  the  Los  Angeles  bar,  was  in  the 
full  tide  of  prosperity  in  the  city  of  Denver, 
Colorado,  when  he  was  compelled,  on  account 
of  the  conditon  of  his  health,  to  seek  a  home 
in  California.  He  was  born  in  Lancaster, 
Grant  county.  Wisconsin,  November  6,  1846. 

Mr.  Dillon's  father.  Patrick  Dillon,  was  a 
California  pioneer.  Although  be  followed  a 
life  of  manual  labor,  he  had  the  natural  quali- 
ties of  a  great  lawver.  and  was  an  educated,  as 


also  a  most  interesting,  man.  He  was  a  grad- 
uate of  Maynooth  College  in  Ireland,  a  scholar 
in  Hebrew,  Greek  and  Latin.  He  was  a  good 
linguist,  in  both  ancient  and  modern  tongues. 
He  spoke  French,  Spanish  and  Italian  fluently. 
.\mong  the  miners  of  Nevada  county,  in  this 
State,  to  whose  ninnber  he  belonged,  he  acted 
as  arbitrator  in  many  famous  controversies. 
He  always  refu-ii-d  compensation  .ind  di^dainerl 


office.  He  will  long  be  remembered  by  the 
miners  of  Nevada  county.  He  was  one  of 
the  few  men  named  Patrick  who  are  not  called 
"Pat."  We  even  say  "Pat"  Reddy.  If  the 
reader  is  ever  called  to  the  mining  regions 
of  Nevada  county  he  will  hear  Patrick  Dillon 
spoken  of  in  terins  of  affection  and  eulogy. 
Patrick  Dillon  attained  the  age  of  sixty-five 
years. 

Henry  C.  Dillon  was  graduated  from  Ra- 
cine College,  at  Racine,  Wisconsin,  in  the 
class  of  1872,  as  "Head  of  the  College."  He 
studied  law  at  Racine  for  two  years,  and  was 
admitted  to  the  bar  by  the  Supreme  Court  of 
Wisconsin,  after  examination,  in  July,  1874. 
Removmg  immediately  to  Denver,  he  began 
practice  there  in  the  same  vear.  He  was  a 
prominent  figure  at  that  bar  for  fourteen  years. 
He  hau  for  partners  at  diiiferent  times  Hon. 
John  T.  Charles,  Lewis  C.  Rockwell,  and 
Judge  \'incent  D.  Markham.  These  were  all 
famous  men.  Mr.  Rockwell  wa-^  at  the  head 
of  the  bar. 

Mr.  Dillon  found  that  he  could  not  endure 
the  high  altitude  of  Denver,  but  must  look 
tor  health  at  the  sea  level.  He  gave  up  a 
most  profitable  and  congenial  practice  in  Au- 
gust, 1888,  and  removed  to  Los  Angeles,  Cali- 
fornia. He  was  not  long  in  acquiring  a  large 
business.  His  professional  ability  and  per- 
sonal worth  were  soon  recognized.  He  has  al- 
ways practiced  alone  since  locating  there.  He 
was  elected  district  attorney  of  the  county, 
and  served  the  term  of  two  years,  1893-94. 
He  was  chosen  as  a  Democrat,  and  has  usually 
acted  with  that  party,  but  in  1900  he  sup- 
ported President  McKinley,  believing  in  the 
policy  of  expansion. 

Mr.  Dillon's  practice  is  a  general  one,  but 
has  principall}'  to  do  with  mining,  corpora- 
tions and  estates.  He  is  general  counsel  of 
the  California  Eastern  Railway  Company, 
whose  road  is  one  of  the  links  in  the  new 
Salt  Lake  line,  and  whicli  has  been  in  opera- 
tion  since    1894. 

Mr.  Dillon  married,  at  Denver,  in  i87(), 
Miss  Florence  Hood.  The  lady  is  the  sister  of 
WilliaiTi  Hood,  the  chief  engineer  of  the  South- 
ern Pacific  Company.  There  are  six  bright 
children  of  this  union,  five  girls  and  a  son. 
All  the  family  are  musical,  except  our  friend 
himself.  Miss  Florence,  the  older  daughter, 
is  a  vocalist  of  distinction,  and  is  finishing  her 
musical  studies  in  Italy.  Another  daughter  is 
showing  genius  in  the  line  of  musicd  comix^ 
sit  ion. 

This  useful  citizen  and  ])rovident  family 
head  has  won  his  good  fortune  by  faithful, 
intelligent  effort,  and  merits  it  all.  He  is  well 
known  as  the  owner  of  a  large  fruit  rancli 
near  Long  Reach,  a  beautiful  place,  principally 
in  lemons,  on  which  he  has  spent  many  thou- 
sands of  dollars.  It  is  just  beginning  to  "pay." 
He  has  built  there  an  elegant  and  roomy 
residence,  which  will  probably  be  the  happy 
home  of  his  descendants  for  generations. 

Mr.  Dillon  is  largely  interested  in  the  oil 
industry,  and  is  connected  with  various  oil 
and  mining  companies,  both  as  an  ciwner  .'iml 
as  attornev. 


History  of  the  Bench  and  Bar  of  California. 


825 


R.  F.  DEL  VALLE. 

Mr.  Del  Valle's  familiar  name  is  to  be  linked 
with  those  of  Stephen  M.  White  and  William 
J.  Hunsaker,  as  that  of  an  honored  "native 
son,"  prominent  at  the  bar  of  Los  Angeles. 
He,  alone  of  the  three,  is  a  native  of  that 
city.  He  was  born  December  15,  1854.  His 
father,  Ygnacio  Del  Valle,  of  an  old  dis- 
tinguished Spanish  family,  a  man  of  high 
character,  who  owned  the  "Cumulos  Rancho" 
in  Ventura  county,  died  there  in  1880,  at  the 
age  of  seventy-two.  Ygnacio  Del  Valle  was  a 
member  of  the  assembly  at  the  third  session, 
in  1852.  This  country  seat  of  the  family  is 
the  scene  of  Helen  Hunt  Jackson's  "Ramona." 

Mr.  Del  Valle  received  his  early  education 
in  the  schools  of  Los  Angeles  city,  and  after- 
wards took  a  full  course  in  Santa  Clara  Col- 
lege, at  Santa  Clara,  where  D.  M.  Delmas  and 
some  other  of  our  noted  subjects  were  bril- 
liant scholars.  He  was  graduated  from  that 
institution  in  1873.  He  studied  law  in  San 
Francisco,  in  the  office  of  Winans  &  Belknap, 
both  of  whom  are  fully  noticed  in  this  His- 
tory, and  was  admitted  to  the  bar  of  the  State 
Supreme  Court  in  1877.  He  then  began  prac- 
tice in  his  native  cit}'.  at  the  same  time  taking 
an  active  part  in  politics  on  the  Democratic 
side. 

In  the  fall  of  1879,  Mr.  Del  Valle  was 
elected  to  the  assembly  from  Los  Angeles 
county,  and  served  in  the  legislative  session 
of  1880,  the  first  under  the  present  constitu- 
tion. That  instrument  provided  that  the  ses- 
sions of  the  legislature  should  be  held  every 
two  years  e.xcept  that  the  second  session  should 
convene  in  one  year  after  the  first.  Mr.  Del 
Valle  served  in  the  assemblj'  at  the  second  ses- 
sion under  the  new  constitution,  held  in  Jan- 
uary-March, 1881,  and  at  the  e.xtra  session  of 
April-May,  1881.  At  the  next  session  he  ap- 
peared in  the  senate,  and  was  chosen  president 
f>ro  tcin.  of  that  body  at  that  session,  1883. 
and  at  the  extra  session  of  March-May,  1884. 
His  term  as  senator  covered  the  regular  .ses- 
sion of  1885  and  the  extra  session  of  1886. 
In  the  assemblv  on  April  15,  1880.  he  intro- 
duced a  concurrent  resolution  for  the  appoint- 
ment by  the  Governor  of  a  connnission  to 
consider  the  question  of  dividing  the  State,  to 
report  at  the  next  session.  This  resolution 
was  referred  to  the  Lf)S  Angeles  delegation, 
which  seemed  to  have  taken  no  action ; — it 
hardly  could,  as  the  legislature  adjourned 
sine  die  the  next  day. 

On  August  28,  1884.  Mr.  Del  Valle  was  ora- 
tor of  the  day  at  Monterey  at  the  centennial 
of  Father  Serra's  death,  the  old  Mission 
church  at  Carmcl  having  just  been  "restored." 
In  that  year  be  was  the  Democratic  candi- 
date for  congress  from  the  then  Sixth  Dis- 
trict, and  made  a  very  creditable  run  against 
great  odds,  being  defeated  by  H.  H.  Markham. 
At  the  Democratic  State  convention  which  met 
at  Los  Angeles  on  May  15,  1888,  Mr.  Del  Valle 
out  of  comnliment  both  to  himself  and  his 
city,  was  unanimously  elected  temporary 
chairman,  and  on  the  next  day  was  iniani- 
mously  elected  permanent  president.  He  was 
also  chairman  of  the  Democratic  State  conven- 


tion in  1894,  which  nominated  the  successful 
candidate  for  Governor,  Hon.  J.  H.  Budd,  and 
in  1900,  was  a  delegate  to  the  Democratic  na- 
tional  convention   which   met   at   Kansas   City. 

When  the  State  went  for  General  Hancock 
for  President  in  1880,  he  was  a  Presidential 
elector,  and  received  the  largest  number  of 
votes  cast  for  any  candidate. 

Mr.  Del  Valle  is  now  one  of  the  oldest  prac- 
titioners, although  only  forty-six  years  of 
age,  at  the  Los  Angeles  bar.  An  observant 
writer  said  of  Mr.  Del  Valle  in  1889  (which 
still  applies)  that  "he  has  a  natural  modesty 
that  is  as  striking  as  it  is  attractive.  Among 
our  many  distinguished  fellow-citizens,  there 
is  no  one  whose  character  and  ability  have  en- 
deared him  to  a  wider  circle  of  friends,  no 
one  who  is  more  warmly  esteemed  or  more 
cordially  respected  by  those  who  know  him." 


M.    C.    DUFFICY. 


M.  C.  Dufficy  was  admitted  to  practice  m 
the  Supreme  Court  of  the  State  of  Califor- 
nia on   the  9th  of  January,    1894.     There   was 


a  class  of  forty-five  applicants,  and  Mr.  Duf- 
ficy was  the  second  on  the  list,  and  was  exam- 
ined before  the  full  bench.  Judges  Van  R. 
Paterson  and  Ralph  C.  Harrison  managing 
the  examination  ;  at  this  sitting  of  the  xourt 
eleven  applicants  were  rejected.  Before  pre- 
paring liimself  for  admission  to  practice  he 
occupied  the  position  of  justice  of  the  peace 
for  San  Rafael  township.  Marin  coimty.  hav- 
ing first  been  appointed  to  fill  a  vacancy  made 
by  the  resignation  of  George  W.  IXivis ;  and 
then  he  was  elected  to  succeed  himself  in 
1800. 

Judge  Dufficv  was  born  ncir  the  trnvn  of 
Strokestown,  county  of  Roscommon.  Ireland. 
December  2().  i83().  llis  parents  brought  him 
to  the  city  of  New  Orleans.  La.,  when  he  was 
six  years  of  age.  where  his  father  died  in 
1848.  He  attended  school  in  New  Orleans 
for  six  years,  or  until  1852.  when  his  mother 
and  family  came  to  California  via  Panama, 
arriving  in  San  Francisco  in  December.  1S52. 
Mr.  Dufficy,  who  was  the  fourth  of  a  family 
of  seven  children,   remained  in   San   Fr.Tucisco 


826 


History  of  the  Bench  and  Bar  of  California. 


until  1854,  when  he  located  in  Marysville,  Cal., 
and  remained  there  until  1876.  He  was  a 
merchant,  hotel-owner  and  proprietor,  and 
a  large  dealer  and  owner  in  real  estate,  etc. 

I' or  a  period  of  eight  years  he  conducted 
the  Western  hotel,  and  the  St.  Nicholas  hotel 
of  that  place.  He  was  also  proprietor  of  the 
Brooklyn  hotel,  in  San  Francisco,  during  the 
years  1891  and  1892.  In  1883  he  moved  to 
San  Rafael,  and  conducted  the  Central  hotel 
until  188O,  when  he  returned  to  his  farm  in 
Yuba  county,  where  he  engaged  in  farming 
until  1888.  Returning  to  San  Rafael  to  make 
his  home,  he  purchased  residence  property, 
and  was  engaged  in  his  official  duties  as  above 
indicated.  For  the  last  six  years  he  has  prac- 
ticed his  profession  as  an  attorney  and  coun- 
sellor-at-law. 

During  the  years  between  1857  and  1863, 
while  residing  at  Marysville,  Judge  Dufficy, 
then  a  young  man,  made  the  study  of  law  a 
specialty  in  the  office  of  Judges  L.  J.  Ashford 
and   Francis   L.   Hatch. 

During  this  time  he  became  acquainted  with 
the  late  Judge  Isaac  Sawyer  Belcher  and  his 
brother,  the  late  William  Caldwell  Belcher, 
who  were  at  that  time  the  prominent  men 
of  the  profession  in  Marysville,  and  Mr.  Duf- 
ficy  having  numerous  real  estate  interests 
which  involved  more  or  less  litigation,  W.  C. 
Belcher  was  his  confidential  attorney.  He 
declares  in  positive  language  that  the  experi- 
ence and  knowledge  acquired  by  being  thrown 
in  contact  with  the  honored  dead  just  narned 
was  of  very  great  value  to  him  in  after  life. 

Judge  Dufficy  was  joined  in  marriage 
February  3,  1863,  with  Edwina  M.  O'Brien, 
a  native  of  Dubuque,  Iowa,  and  daughter  of 
Dr.  James  O'Brien,  formerly  county  physician 
of   Oroville,   Butte   county. 

Mr.  and  Mrs.  Dufficy  have  nine  children, 
three  sons  and  six  daughters.  The  Judge  is 
a  staunch  Democrat  in  politics,  still  active  in 
political  matters,  and  may  always  be  found 
allied  with  the  better  and  more  progressive 
element  of  his  own  party.  He  is  a_  gentle- 
man of  culture,  and  his  circle  of  friends  is 
very   large.  

CHAUNCEY  H.   DUNN. 

Chauncey  Homer  Dunn  was  born  in  Laurel, 
Ohio,  on  September  25th,  1856.  He  came  to 
California  with  his  parents  in  i860,  and  has 
since  resided  here  continuously.  His  father, 
Rev.  Thomas  S.  Dimn,  was  for  thirty-five 
years  a  leading  Methodist  minister,  having 
filled  nearly  all  the  large  charges  of  his 
church  in  California  at  some  time  during  his 
ministry. 

Chauncey  H.  Dunn  was  educated  in  the  pub- 
lic schools  of  California  and  at  the  University 
of  the  Pacific,  near  San  Jose,  graduating  from 
that  institution  in  June,  1878,  and  receiving  the 
degree  of  bachelor  of  arts.  He  was  admitted 
to  practice  before  the  Supreme  Court  of  this 
State  in  November,  1882,  and  has  been  located 
at  Sacramento  city  since  that  time.  For 
eighteen  months  he  worked  as  one  of  the  asso- 
ciate editors  on  the  American  Decisions,  when 
his  practice  had  increased  so  that  he  was 
unable  for  want  of  time,  to  continue  that  work 


longer.  He  was  associated  with  Hon.  J.  N. 
Young,  under  the  firm  name  of  Young  & 
Dunn,  for  five  years ;  and  has  been  associated 
with  Judge  S.  Solon  Holl  under  the  firm  name 
of  Holl  &  Dunn,  since  April,  1891. 

Mr.  Dunn  was  originally  a  Republican  in 
politics,  but  in  1884  he  joined  the  Prohibition 
party,  and  was  many  times  its  candidate  for 
various  offices,  among  them  attorney  gen- 
eral, lieutenant  governor,  and  congressman.  Tn 
1896,  he  attended  as  a  delegate  the  Prohibition 
national  convention  and  was  among  those  who 
left  the  convention  and  the  Prohibition  party, 
because  of  its  attitude  in  declaring  for  the 
single  issue  of  prohibition  and  refusing  to 
declare  its  position  upon  the  other  leading 
issues  of  the  day.  He  believed  that  no  party 
could  ever  be  successful  that  was  unwilling  to 
take  sides  upon  the  important  political  issues 
pressing  for  settlement. 

In  1898  Mr.  Dunn  was  one  of  the  nominees 
of  the  citizens'  independent  movement  for 
Judge  of  the  Superior  Court  of  Sacramento 
county.  In  May,  1900,  he  was  a  member  of  the 
general  conference  of  the  M.  E.  church  that 
met  at  Chicago,  and  which  meets  but  once  in 
four  years,  and  which  is  the  supreme  legisla- 
tive body  for  that  denomination. 

He  has  been  president  of  the  Young  Men's 
Christian  Association  of  Sacramento  for  many 
years.  By  his  studious  habits,  his  known  in- 
tegrity, and  his  close  attention  to  his  profes- 
sional duties,  he  has  built  up  a. large  and  lucra- 
tive practice,  and  enjoys  the  undivided  esteem 
and  confidence  of  the  business  community. 


W.   H.   C.   ECKER. 

Mr.  Ecker  was  born  near  Allegheny  City, 
Pennsylvania,  on  May  6th,  1849.  When  he 
was  about  four  years  of  age  he,  with  his 
parents,  settled  on  a  farm,  near  the  city  of 
Gallipolis,  in  Gallia  county.  State  of  Ohio. 
He  received  an  academic  education  at  the 
Gallia  academy,  graduating  from  that  institu- 
tion in  the  year  1873.  He  taught  school  for  a 
time  in  Ohio,  and  West  Virginia,  and  then 
attended  the  Cincinnati  Law  College,  grad- 
uating therefrom  in  the  year  1874.  Returning 
to  Gallipolis  he  engaged  in  the  law  practice 
until  1880,  when  he  was  elected  to  the  office 
of  prosecuting  attorney  for  Gallia  county,  and 
was  re-elected,  serving,  for  six  years  in  that 
capacity. 

On  account  of  ill  health  he  moved  to  Cali- 
fornia, residing  at  San  Jose  for  a  while,  and 
in  1888  he  located  permanently  in  San  Diego 
county.  He  was  admitted  to  practice  in  the 
Supreme  Court  of  the  LTnited  States  at  the 
city  of  Washington  in  1882.  His  practice  now 
is  in  both  State  and  federal  courts.  In  1890 
he  was  elected  to  the  city  coimcil  of  the  city  of 
San    Diego,    which    office    he   now   holds. 

Mr.  Ecker  is  a  member  of  the  Masonic  or- 
der, and  belongs  to  Rose  Croix  Commandery 
No.   43.   of  Gallipolis.   Ohio. 

CHARLES  P.  EELLS. 
Mr.   Eells  was  born   in   New  York.  May  18, 
1854.      His    father    was    a    learned    and    emi- 


History  of  the  Bench  and  Bar  of  California. 


827 


nent  divine  of  the  Presbyterian  Church,  the 
Rev.  James  Eells,  D.  D.,  so  well  known  in 
California  a  generation  ago.  The  latter  left 
this  State  some  years  before  his  death,  which 
occurred  at  Cincinnati,  Ohio,  March  9,  1886. 
He  was  then  a  professor  in  Lane  Theological 
Seminary,  and  in  his  sixty-fourth  year.  He 
left  a  comfortable  estate  to  his  two  children, 
Charles  P.  Eells  and  Mrs.  Horatio  Liver- 
more.  A  sketch  of  his  useful  life  is  to  be 
found  in  Bancroft's  "Contemporary  Biogra- 
phy" (1881),  and  in  the  editorial  columns  of 
the  San  Francisco  Bulletin  of  March   10,  1886. 

Charles  P.  Eells  received  his  education  at 
the  old  City  College  in  San  Francisco,  the 
Oakland  College  at  Oakland,  California,  the 
Poughkeepsie  Military  Academy  at  Pough- 
keepsie,  New  York,  and  Hamilton  College  at 
Clinton,  New  York.  He  prepared  for  the  bar 
in  San  Francisco ;  was  admitted  to  the  bar 
by  our  State  Supreme  Court,  April  11,  1877, 
and  began  practice  in  1879  at  San  Francisco, 
where  he  has  always  since  pursued  it.  He 
has  had  much  success  at  the  bar,  and  for  the 
greater  part  of  the  time  has  been  in  partner- 
ship with  Charles  Page  and  other  able  men  of 
the  metropolis  bar.  He  is  a  cultured  man, 
and  learned  and  accomplished  in  his  profes- 
sion. He  is  tall  in  stature,  strongly  built,  full 
of  life,  and  fond  of  out-door  diversions,  ram- 
bles in  the  country,  fishing,  hunting,  etc..  to 
which  addiction  so  many  hard-working  law- 
yers owe  the  preservation  of  sound  minds  in 
sound  bodies. 

Mr.  Eells  was  a  member  of  the  San  Fran- 
cisco board  of  education  for  the  years  1899- 
1900. 

MORRIS   M.    ESTEE. 

Morris  M.  Estee,  the  first  United  States 
Judge  of  the  Hawaiian  Islands,  was  born  in 
Warren  county,  Pennsylvania,  November  23, 
1833.  He  was  a  farmer's  son.  His  education 
during  his  minority  was  obtained  at  the  pub- 
lic schools  of  his  county,  and  at  Waterford 
Academy.  The  last  named  institution  he  at- 
tended for  a  year.  His  winters,  between  his 
sixteenth  and  twentieth  years,  were  passed  in 
teaching  in  his  native  county.  In  1853  he  came 
to  California,  arriving  at  San  Francisco  by 
way  of  Panama,  in  September.  He  was  then 
twenty  years  old,  and  had  borrowed  of  a  neigh- 
bor in  Pennsylvania  his  passage  money,  upon 
a  promise  to  pay  back  double  the  sum  in  six 
months,  .\fter  vain  efforts  to  get  employment 
in  San  I'rancisco,  he  went  to  the  mining  re- 
gion before  mentioned,  and  was  enabled  from 
his  earnings  with  the  pick  to  remit  to  his 
creditor  in  Pennsylvania  double  the  sum  he  had 
obligated  himself  to  pay,  within  the  time  lim- 
ited. 

It  was  in  the  year  iS^c)  liiat  Mr.  Estee  was 
admitted  to  the  bar  of  the  Supreme  Court.  Me 
practiced  law  at  Sacramento  from  that  time 
until  the  year  1866.  During  thai  period  he  re- 
ceived some  signal  tnkens  of  iIk-  res])ect  and 
confidence  of  the  people.  In  the  legislative 
session  of  1863-64  he  represented  Sacramento 
in  the  assembly.     In   the   fall   of   1864  he   was 


elected  district  attorney,  and  served  the  icrm 
of  two  years.  The  emoluments  of  that  office 
were  considerable.  Upon  leaving  it.  Mr.  Estee 
removed  to  San  Francisco.  Before  this  change 
of  location,  he  had  invested  to  some  extent 
in   San   Francisco  business  property. 

The  removal  to  San  Francisco  was  in  1866. 
After  a  year's  association  with  ex-Judge  E. 
H.  Heacock,  Mr.  Estee  practiced  in  partner- 
ship with  John  R.  McLaurin  for  about  three 
years,  when  Mr.  McLaurin  died.  Mr.  Estee 
and  ex-Judge  John  H.  Boalt  then  became  asso- 
ciated under  the  style  of  Estee  &  Boalt.  This 
union  lasted  prosperously  for  about  ten  years. 
Shortly  after  its  dissolution,  Mr.  Ramon  E. 
Wilson  joined  Mr.  Estee,  and  some  years 
later  Mr.  E.  J.  McCutchen  entered  the  'firm, 
the  style  of  which  was  Estee,  Wilson  &  Mc- 
Cutchen down  to  1892.  1  hen  for  some  three 
years  Mr.  John  H.  Miller  was  Mr.  Estee's 
associate.  After  that  Mr.  Estee  practiced 
alone. 

Mr.  Estee  is  a  Republican  in  politics,  and 
as  such  was  elected  to  the  public  places  he  held 
in  Sacramento.  He  became  even  more  promi- 
nent in  the  councils  of  his  party  after  he  re- 
moved to  San  Francisco.  When  Newton 
Booth  was  nominated  by  the  Republicans  for 
Governor  in  1871.  and  entered  upon  his  bril- 
liant and  successful  canvass  for  that  office 
against  the  incumbent,  Hon.  Henry  H.  Haight. 
Mr.  Estee  was  made  secretary  of  the  Repub- 
lican State  Central  Committee.  For  the  zeal 
and  ability  he  displayed  in  that  position,  his 
party  showered  upon  him  its  applause.  But 
two  years  later  there  was  a  serious  division 
in  his  party  ranks ;  and  in  the  general  election 
(which  was  for  members  of  the  legislature  and 
county  officers),  Mr.  Estee  and  Hon.  John 
Swift  were  among  the  Republican  leaders  who 
followed  Governor  Booth  into  what  some 
would  call  a  revolt  against  the  regular  organ- 
ization, while  others  would  declare  it  a  revolu- 
tion. These  gentlemen  led  an  independent 
movement,  which  carried  the  legislature,  and 
elected  Governor  Booth  to  the  United  States 
senate.  Mr.  Estee  led  the  San  Francisco  dele- 
gation in  the  assembly,  and  was  made  speaker 
of  that  body.  In  that  position  his  urbanity, 
ability,  and  decision  were  constantly  displayed. 

The  Independent  party  dis.solved  within  a 
year  into  its  original  elements,  and  Messrs, 
Booth.  Swift  and  Estee  were  soon  in  full  Rc- 
I)ublican  fellowshin  again.  At  the  legislative 
session  of  'i't^J'-j't^.  Mr.  Estee  was  the  Repub- 
lican caucus  nominee  for  I'niled  States  senator, 
but  the  Democrats  were  in  the  majority  and 
elected  James  T.   Farley. 

Mr.  Estee  was  a  leading  member  fif  the  Inst 
constitutional  convention  of  this  State  ([878). 
1  h'  was  elected  as  a  non-partisan  from  the 
.State-at-large.  He  was  made  chairman  of 
the  committee  on  corporations  of  the  conven- 
tion, and  prepared  the  report  of  this  com- 
mit he  on  the  important  work  by  it  accom- 
plished. It  is  noteworthy  tlial  he  was  the  only 
one  of  the  eight  delegates  from  the  .San  Fran- 
cisco district  representing  the  State-at-large. 
who  supported  before  the  people  the  new  con- 
stitution adopted  in  1879. 


828 


History  of  the  Bench  and  Bar  of  California. 


Ill  tlic  year  1880  Mr.  Estee  was  elected  one  of 
the  freeholders  entrusted  by  the  people  with 
the  task  of  framing  a  new  charter  for  San 
Francisco,  his  legal  residence  being  in  that  city 
at  that  time.  The  instrument  framed  by  this 
charter  convention  was  rejected  by  the  people. 
Mr.  Estee  was  the  Republican  candidate  for 
Governor  of  California  in  1882,  but  the  Demo- 
crats, under  the  lead  of  General  Stoneman, 
were  successful  in  that  campaign.  He  was  the 
candidate  again  of  his  party  for  that  office  in 
1894.  when  the  Democrats  elected  Hon.  James 
H.   Budd. 

'1  nc  most  distinguished  place,  perhaps,  tliat 
Mr.  Estee  has  ever  held,  in  that  it  attracted  to 
him  and  to  his  State  the  eyes  of  the  whole 
country,  was  that  of  President  of  the  National 
Rcpul)]'ican  Convention  of  1888.  His  latest 
public  trust  was  as  a  delegate  to  the  Congress 
of  Nations  of  North,  Central  and  South  Amer- 
ica, which  opened  at  Washington,  D.  C,  on  the 
4th  of  October,   1889. 

Mr.  Estee  is  a  prominent  Mason  and  Odd 
Fellow,  and  was  a  representative  in  the  Su- 
preme Lodge,  I.  O.  O.  F..  that  sat  at  Balti- 
more in  1869.  He  married  in  February,  1863, 
Miss  Frances  Divine,  daughter  of  Judge  Davis 
Divine,  of  San  Jose,  and  has  two  daughters. 

Mr.  Estee  is  of  striking  personal  appear- 
ance, above  the  average  height  and  weight, 
and  of  most  agreeable  address  and  presence. 
As  a  public  speaker  and  at  the  bar  he  is  en- 
tertaining, and  convincing,  always  dignified, 
and  leaving  the  impression  of  sincerity.  Be- 
sides his  forensic  efforts,  he  has  delivered  sonie 
of  the  ablest  addresses  ever  heard  at  our  agri- 
cultural fairs  and  at  Fourth  of  July  celebra- 
tions. He  has  the  ability  to  weigh  evidence — 
not  in  law  suits  merely,  but  in  matters  that 
divide  men  generally — to  separate  facts  from 
fiction,  to  get  at  the  truth,  and  support  the  bet- 
ter cause. 

After  a  long  period  of  uninterru])ted  success 
at  the  bar,  and  distinction  in  public  life  and 
politics,  Mr.  Estee  was  just  at  the  zenith  of 
his  powers  of  mind,  when  President  McKinley 
appointed  him  the  first  United  States  Judge  of 
the   Hawaiian   Islands,  in  June,   1900. 

The  title  of  Justice  Estec's  office  is  that  of 
"United  States  District  Judge  for  the  Territory 
of  Hawaii." 

Under  the  act  of  annexation,  the  Hawaiian 
Islands  were  formed  into  a  district  to  be 
known  as  the  District  of  Hawaii,  and  to  be 
attached  to  the  Ninth  Judicial  Circuit.  The 
functions  of  the  District  Judge  there  are  the 
same  as  those  of  the  district  judges  in  this 
country,  except  that  he  is  given  the  same 
powers  in  appeal  as  are  held  by  the  circuit 
judges.  In  addition  to  the  ordinary  powers 
of  the  district  judge,  therefore,  the  district 
judge  of  Hawaii  is  empowered  to  perform  the 
duties  of  a  circuit  judge  over  that  district. 

Sessions  of  the  court  of  the  District  of  Ha- 
waii are  held  in  Honolulu  in  October  and  in 
Hilo  in  January  of  each  year. 

Judge  Estee's  nomination  was  sent  by  the 
President  to  the  senate  on  June  2,  1900,  and 
was  promptly  confirmed.  He  sailed  from  San 
Francisco  for  Honolulu  early  in  August,  1900. 


and  oi)eiied  the  new  court  there  in  the  same 
munlh.  lie  wa.-5  ban(iueted  by  a  numerous  body 
of  leading  citizens  of  San  Francisco  just  before 
his  departure.  At  Honolulu  he  was  welcomed 
most  cordially  by  the  whole  bar.  His  duties 
bring  him  to  San  Francisco  twice  a  year  to 
attend  the  United  States  Circuit  Court  of 
Appeals.         

OLIVER  P.  EVANS. 

Oliver  Perry  Evans,  one  of  the  judges  of 
the  Superior  Court  of  San  Francisco,  chosen 
at  the  first  election  under  the  present  consti- 
tution, was  born  in  the  State  of  Virginia,  and 
is  now  fifty-eight  years  of  age.  He  was  lib- 
erally educated,  and  began  his  professional 
career  in  San  Francisco  in  1868.  He  was  in 
partnership  with  ex-Chief  Justice  John  Currey 
for  a  period  of  eight  years,  ending  on  the 
first  of  January,  1878.  Judge  Currey,  who 
then  retired  from  active  practice,  speaks  of 
this  long  association  with  much  satisfaction. 

Judge  Evans  was  elected  a  judge  of  the  Su- 
perior Court  in  the  fall  of  1879,  and  took  the 
bench  in  January,  1880.  In  August,  1883, 
having  served  three  and  a  half  years,  he  re- 
signed, and  resumed  law  practice.  He  then 
entered  on  a  valuable  business  of  a  general 
character.  His  connection  with  the  Sharon 
divorce  case  is  mentioned  in  the  article  on 
that  litigation  in  this  History.  He  has  been 
associated  since  1898  with  John  H.  Mere- 
dith, who  is  also  a  Virginian,  and  a  lawyer  of 
subtle  and  sagacious  mind. 

Judge  Evans  is  a  man  of  family.  Person- 
ally, he  is  of  giant  frame  and  harmoniously 
built,  now.  apparently,  more  than  ever,  in  the 
flower  of  manly  health,  and  is  of  striking  pres- 
ence. 

CLARA  SHORTRIDGE  FOLTZ. 

Clara  Shortridge  Foltz  is  the  only  daughter 
of  Elias  W.  Snortridge.  who  was  a  minister 
of  the  Christian,  or  Campbelite,  Church.  She 
springs  from  an  old  American  family,  and 
was  born  in  Henry  county,  Indiana.  Her 
family  has  always  been  noted  for  mental  and 
physical  vigor  and  uncompromising  virtue.  Her 
father  acquired  distinction  as  an  orator.  His 
four  sons,  widely  separated  by  circumstances, 
are  leading  men  in  the  communities  in  which 
they  live. 

Mrs.  Foltz  went  to  school  only  three  years 
— from  eleven  to  fourteen  years  of  age — at 
Howe's  Seminary,  Mount  Pleasant,  Iowa.  At 
the  age  of  sixteen  she  figured  in  a  Gretna 
Green  match,  uniting  her  fortunes  with  a 
young   Penn.sylvania   German. 

Her  husband  removing  to  Portland,  Oregon, 
she  rejoined  him  there  in  January,  1872,  with 
a  ibabe  of  nine  weeks.  Not  long  afterwards 
they  removed  to  San  Francisco. 

Mr.  G.  W.  Lamson,  still  practicing  at  Port- 
land, who  had  come  to  know  her  well,  and 
had  been  struck  with  her  strong  intellect,  her 
ready  wit,  and  her  facility  of  speech,  visited 
her  one  day,  and  presenting  the  complete  com- 
mentaries of  Kent,  said  :  "I  wish  yoii  would 
take  these  books  and  read  them;  I  think  you 
would  make  a  good  lawyer." 


Clara  Shortridge  Foliz 


History  of  the  Bench  and  Bar  of  California. 


831 


She  took  the  books  and  commenced  her  life 
work.  She  did  most  of  her  law  reading  in 
the  law  office  of  C.  C«  Stephens,  of  San  Jose, 
California.  She  was  admitted  to  practice  in 
the  Twentieth  District  Court  at  San  Jose,  Sep- 
tember 5,  1878,  after  passing  an  examination 
by  Judge  F.  E.  Spencer  and  Messrs.  Stephens 
and  Harrington.  She  obtained  some  profes- 
sional business  very  soon,  but,  before  trying 
to  establish  a  practice,  removed  to  San  Fran- 
cisco for  the  purpose  of  further  pursuing  her 
studies  in  the  Hastings  Law  College.  She 
here  found  herself  at  once  confronted  with 
obstacles  of  a  serious  character,  which  put 
to  a  severe  test  all  her  pluck,  fortitude  and 
ability.  Applying  to  Judge  Hastings,  the 
founder  and  dean  of  the  college,  for  permis- 
sion to  attend  the  lectures,  she  was  told  she 
could  do  so,  subject  to  the  decision  of  the  di- 
rectors. After  attending  three  lectures  she 
received  a  notice  from  the  registrar  that  the 
■'Directors  had  resolved  not  to  admit  women 
to  the  Law  School." 

At  the  session  of  1878  the  legislature  had 
amended  the  section  of  the  code  of  civil  pro- 
cedure regulating  the  admission  of  attorneys 
and  counselors  in  all  the  courts  of  the  state. 
The  section  originally  read  :  "Any  white  male 
citizen,"  etc. ;  as  amended  it  read :  "Any  citi- 
zen or  person,"  etc.  This  amendment  was 
drafted  by  Mrs.  Foltz,  who  visited  the  cap- 
itol,  and  watched  its  fate  with  maternal  so- 
licitude. Senator  Murphy,  of  Santa  Clara,  in- 
troduced it  in  the  upper  house,  which  it  passed 
by  a  fair  majority.  Mrs.  Foltz  was  then 
called  to  Oregon  to  address  the  State  Woman 
Suffrage  Association.  In  the  assembly  her 
measure  was  strongly  opposed  by  Mr.  Mur- 
phy of  Del  Norte,  and  was  defeated.  Mr. 
Grove  L.  Johnson  of  Sacramento  moved  a  re- 
consideration, and  meanwhile  Mrs.  Foltz  was 
again  on  the  battlefield.  After  much  argument 
and  personal  entreaty,  she  had  the  pleasure  of 
seeing  the  section  as  amended  pass  the  assem- 
bly, on  reconsideration,  by  one  majority.  Tn 
her  enthusiasm  and  anxiety,  she  invaded  the 
room  of  Governor  Irwin,  and  urged  him  to 
yield  his  signature.  She  was  gently  checked 
with  the  assurance  of  his  excellency  that, 
"when  the  bill  reached  him  he  would  examine 
and  consider  it."  It  received  the  executive 
signature  two  minutes  before  midnight,  the 
hour  of  final  adjournment  of  the  legislature, 
and  was  the  last  bill   signed. 

In  January,  1879,  Mrs.  Foltz  presented  to 
the  Fourth  District  Court  her  certificate'  of 
admission  to  the  bar  of  the  Twentietli  dis- 
trict, and  asked  for  a  license  from  the  first- 
named  tribunal.  Judge  Morrison,  presiding, 
denied  the  application,  and  appointed  a  com- 
mittee (W.  W.  Cope,  J.  B.  Lamar,  and  Sidney 
V.  Smith)  to  examine  Mrs.  Foltz  as  to  her 
qualifications.  The  report  of  the  committee 
was  favorable,  and  the  applicant  was  then  duly 
admitted. 

Now  for  college.  Strengthened  by  her 
Fourth  district  license,  the  struggling  woman 
now  paid  immediate  attention  to  the  little  note 
from  the  registrar  of  Hastings  Law  .School 
which    she    had    received    some    three    weeks 


before.  Judge  Hastings  himself,  Professor 
Pomeroy  and  the  directors  were  of  one  mind, 
that  she  had  no  legal  right  to  admission  to  the 
institution,  and  that  it  would  be  unwise  to 
receive  her,  her  presence,  in  their  judgment, 
being  calculated  to  distract  the  attention  of  the 
male  students.  Mrs.  Foltz  applied  to  the 
Fourth  District  Court  for  an  alternative  writ 
of  mandate  to  compel  the  directors  to  admit 
her  as  a  student  in  the  college.  She  made  a 
well-considered  argument  in  support  of  her 
application,  basing  her  claim  upon  the  fact 
that  the  law  college  was  a  branch  of  the  State 
University,  and  that  the  right  of  women  to 
enter  the  uiversity  was  unquestioned,  several 
having  graduated  therefrom.  She  declared 
that  it  would  be  an  anomaly  in  legislation  to 
permit  women  to  practice  law  in  all  .the  courts 
and  yet  establish  a  law  school  from  which 
they  should  be  excluded. 

Two  leading  members  of  the  bar  replied 
to  Mrs.  Foltz,  but  the  decision  was  in  her  fa- 
vor. 

The  directors  appealed,  and  she  was  kept 
out  of  the  college  for  a  year.  In  the  mean- 
time, she  appeared  before  the  Supreme  Court 
as  an  applicant  for  admission  to  the  bar  of 
that  tribunal,  and,  after  a  public  examina- 
tion, the  third  passed  by  her,  she  was  admitted. 
She  was  one  of  a  large  class  of  applicants, 
many  of  whom  were  rejected.  A  few  weeks 
later  she  argued  in  the  Supreme  Court  her 
mandamus  case  on  appeal.  She  was  compli- 
mented from  the  bench,  and  when  the  court 
adjourned  one  of  the  Judges,  who  had  known 
Iier  in  San  Jose,  honored  her  with  the  words, 
"You  are  not  only  a  good  mother ;  you  are  a 
good  lawyer.  1  have  never  heard  a  better  ar- 
pument,  for  a  first  argument,  made  by  any 
one." 

By  the  final  judgment  of  the  appellate  court 
(Foltz  vs.  Hogc,  54  Cal.,  28)  the  doors  of  the 
Hastings  Law  College  were  thrown  wide  open 
to  woman,  and  Mrs.  Foltz,  at  the  close  of  a 
brilliant  campaign,  took  her  coveted  seat. 

Before  her  contest  in  the  State  courts,  Mrs. 
Foltz  had  created  quite  a  flutter  in  San  Jose, 
among  the  legal  juniors.  They  had  a  lively 
moot  court,  called  the  Legal  Club.  The  lady 
sought  membership  in  it,  and  at  once  the  club 
was  divided  against  itself,  and  soon  went  to 
splinters. 

Mrs.  Foltz  was  clerk  of  the  judiciary  com- 
mittee of  the  assembly  in  1880.  With  the 
exception  of  the  period  covered  by  that  ses- 
s'on,  and  about  three  years  at  the  New  York 
City  bar  (i8q6-r)8)  she  has  been  practicing 
law  in  San  Francisco  since  her  admission.  The 
most  noted  case  with  which  slie  has  been  con- 
nected was  that  of  Wheeler,  indicted  for 
nnud.r,  and  convicted.  She  appeared  for  the 
prosecution,  and  addressed  the  jury.  She  has 
liad  no  law  partner.  I'Vecpiently  she  is  called 
to  the  interior  on  business.  For  her  chosen 
profession  she  has  the  most  enthusiastic  de- 
votion. In  court  she  is  self-reliant,  her  argu- 
ment is  terse  and  condensed,  her  speech  fluent. 
Having  a  good  voice,  engaging  manners,  and 
dressing  with  excellent  taste,  disiil.iying  con- 
stant   evidence    of   strict    ami    circfiil    p.Troutal 


832 


History  of  the  Bench  and  Bar  of  California. 


training,  and  wearing  always  the  jewel  of 
true  womanhood,  she  has  become  a  favorite  of 
the  bar.  whose  leading  members  are  pleased 
at  all  times  to  give  her  counsel. 

By  her  womanly  graces,  as  well  as  by  her 
studious  habits  and  patient  struggles,  she  has 
won  the  undivided  esteem  of  the  entire  pro- 
fession. They  have  got  through  laughing  at 
her.  She  can  defend  herself.  She  anticipated 
frequent  occasion  to  do  so  when  she  com- 
menced going  into  court.  But  she  has  rarely 
met  frowns  or  sneers.  She  is  overflowing 
with  life  and  humor  and  is  quick  at  repartee. 
An  opposing  attorney  once  suggested  to  her 
in  open  court  that  she  had  better  be  at  home 
raising  her  cliildren.  She  replied  :  "A  woman 
had  better  be  in  almost  any  business  than 
raising  such  men  as  you." 

Madge  Morris  once  wrote  to  her  in  sweet 
verse : 

"If  faltered  ere  that  heart  of  thine, 
It  ached,  but  gave  the  world  no  sign." 

And   again,   in   the   same  poem : 
"Thy  voice  hath  argued  in  debate. 
In    scathing    satire,    sharply    fell ; 
In   forum,  and  in  hall  of  state. 
Held   listening  thousands   with    its   .spell ; 
Then  dropped  its  tones  to  softest  keep. 
And  crooning  sang  a  babe  to  sleep." 

Closing    with    lines    since    often    quoted    in 
newspapers   and   magazines  : 
"And   thou   hast   proved   that   woman   can, 
Who    has    the    nerve    and    strength    and    will, 
Work  in  the  wider  fields  of  man. 
And  be  a  woman   .still." 

Dr.  Charles  Gridley  Toland,  of  San  Fran- 
cisco, and  Miss  Trella.  daughter  of  Mrs. 
Foltz,  were  united  in  marriage  at  San  Diego, 
California,  in  October.  1^88. 

E.  A.   FORBES. 

Edwin  Alexander  Forbes  was  born  July  20, 
i860,  at  the  mining  town  of  Brandy  City,  Sierra 
county,  California.  His  parents  were  foreign 
born.  His  father,  Alexander  R.  Forbes,  came 
from  Scotland,  and  was  raised  in  Canada.  He 
was  a  blacksmith  and  a  miner  until  1867, 
when  he  moved  to  Yuba  county,  in  this  State, 
and  engaged  in  farming  and  stock-raising  un- 
til his  death  in  1897.  The  mother,  whose 
maiden  name  was  Catherine  Kraker,  was  born 
in  (jermany.  and  came  to  this  coimtry  at  twelve 
years  of  age.  She  was  educated  in  the  schools 
of  the  United  States.  The  ancestors  on  the 
father's  side  were  soldiers  for  many  genera- 
tions among  the  Highland  regiments  of  the 
British  army — chiefly  the  Gordon  Highlanders, 
wherein  the  grandfather  served  twenty-one 
years,  taking  part  in  many  memorable  battles, 
among   them   Waterloo. 

At  the  age  of  seven  years  E.  A.  Forbes 
moved  with  his  parents  from  the  old  mining 
camp  of  Brandy  City  to  the  Oregon  House 
Valley,  in  Yul)a  county,  where  his  father  pur- 
chased a  ranch,  and  from  then  until  he  was 
eighteen  years  of  age.  he  worked  on  the  farm 
and  in  the  blacksmith  shop.  He  rode  the 
ranges  after  stock,  and  attended  the  public 
schools   during  the  i)ortions  of  the  year   when 


ihcy  were  open.  As  soon  as  his  age  would 
permit  under  the  law,  to-wit,  eighteen  years,  he 
attended  the  teachers' •examination  and  ob- 
tained a  first-grade  certificate  to  teach  school, 
standing  second  in  a  class  of  twenty-four  ap- 
plicants. He  then  taught  for  three  years  in 
Yuba  county.  On  arriving  at  majority,  with 
his  savings  he  entered  the  law  department  of 
the  State  University.  By  teaching  school  dur- 
ing vacation,  and,  when  he  could  not  get  a 
school,  by  working  in  the  harvest  fields,  and 
by  clerking  in  a  law  office  in  San  Francisco,  he 
managed  to  stay  through  his  term,  and  was 
graduated  from  Hastings  Law  College  in  May, 
1884.  He  then  went  to  Marysville.  California, 
and  opened  a  law  office  in  June.  1884.  He  re- 
ceived the  nomination  for  district  attorney  of 
Yuba  county  .in  July,  and  was  elected  in  No- 
vember of  the  same  year.  He  held  the  office 
of  district  atotrney  of  Yuba  county  for  four 
terms,  until  1892.  Entering  into  partnership 
with  Wallace  Dinsmore,  his  present  partner, 
in  1885,  they  have  practiced  law  in  Marys- 
ville  ever    since,   the   firm    name   being    Forbes 


&  Dinsniure.  They  do  a  large  corporation, 
probate  and  criminal  practice.  Mr.  Forbes  has 
i)een  engaged  in  most  of  the  noted  criminal 
cases  in  Northern  California  for  many  years. 
He  has  always  taken  a  prominent  part  in  mil- 
itary affairs,  belonging  to  the  National  Guard 
since  1880,  and  now  ])eing  lieutenant-colonel  of 
the  Second  Infantry  Regiment,  N.  G.  C.  He 
served  during  the  railroad  strikes  of  1894,  and 
voluntered  during  the  Spanish-American  War, 
and  was  commissioned  as  major  of  the  Eighth 
California  Regiment  of  Infantry,  United  States 
Vohmteers.  He  is  one  of  the  crack  shots  of 
the  National  Guard,  and  when  captain  of  the 
Marysville  company  in  1895,  broke  the  world's 
record  at  target  shooting  with  fifty  men.  Dur- 
ing the  Spanish-American  War  his  regiment 
was  not  called  out  of  the  country,  but  owing 
to  his  administrative  military  ability  he  was 
given  more  important  military  commands  than 
any  volunter  officer  on  the  Pacific  Coast,  hav- 
ing been   sent   to  command  the  important  post 


Wm.  H.  Fifield 


History  of  the  Bench  and  Bar  of  California. 


835 


of  Vancouver  Barracks,  where  he  was  in  com- 
mand of  the  First  Battalion  of  his  own  regi- 
ment and  the  troops  of  Oregon  and  Washing- 
ton, and  a  detachment  of  Regulars.  He  was 
also  in  command  of  the  troops  at  Angel  Isl- 
and  and   Benicia,   California. 

Colonel  Forbes  has  also  always  taken  a 
leading  part  in  politics.  He  was  chairman  of 
the  Republican  State  convention  at  Sacra- 
mento in  1900,  and  appointed  the  executive 
committee  of  the  Republican  party  whicli  so 
successfully  handled  the  Presidential  campaign 
of  that  year.  He  was  defeated  for  the  nomi- 
nation for  congress  from  the  Second  district 
of  California,  by  one  vote,  at  Santa  Cruz, 
in  1900.  The  Lolonel  takes  great  interest  as 
well  in  public  affairs.  He  formed  the  Brown's 
Valley  Irrigation  district,  and  brought  the  wa- 
ters of  the  Yuba  River  over  the  dry  foot- 
hills of  Yuba  county.  He  negotiated  the  sale 
of  the  famous  Brown's  Valley  mines,  and  was 
active  in  interesting  capital  in  the  develop- 
ment of  the  wonderful  power  resources  on  the 
Yuba  River,  which  resulted  eventuallj'^  in  the 
creation  of  the  greatest  electrical  plant  in  Cali- 
fornia, the  Bay  Counties  Power  Company's 
plant. 

Colonel  Forbes  is  president  of  the  board  of 
agricultural  directors  of  his  district;  president 
of  the  Marysville  Chamber  of  Commerce,  and 
vice-president  of  the  Sacramento  Valley  De- 
velopment Association,  besides  being  president 
of  several  private  corporations.  He  ranks  as 
one  of  the  leaders  of  the  bar  of  Northern  Cal- 
ifornia. His  success  in  legal,  civil,  political 
and  military  life  comes  from  his  intimate 
knowledge  of  men  and  the  use  of  practical 
judgment  in  all  matters,  aided  by  a  tenacious 
determination  to  carry  out  whatever  he  under- 
takes. He  was  married  in  November,  1884, 
to  Miss  Jennie  Yore,  by  whom  he  has  two 
children,  a  daughter  of  fifteen,  and  a  boy  of 
eight  years. 

WILLIAM  H.  FIFIELD. 

William  Henry  Fifield,  so  long  prominent  at 
the  San  Francisco  bar,  and  always  associated 
with  men  of  the  first  ability,  was  born  Feb- 
ruary 8,  1843,  in  Jackson  county,  Michigan. 
Both  of  his  parents  were  born  in  New  Hamp- 
shire. He  received  his  early  training  and  prep- 
aration for  college  in  the  public  schools  of  his- 
native  place.  He  entered  the  University  of 
Michigan  at  Ann  Arbor  in  the  fall  of  1861, 
and  was  graduated  with  his  class  in  1865,  re- 
ceiving the  degree  of  Bachelor  of  Arts. 

Immediately  upon  his  graduation  he  entered 
upon  the  study  of  the  law  in  the  summer  of 
1865.  in  the  office  of  Hon.  Austin  Blair  at  Jack- 
son, Michigan,  who  was  the  war  Governor  of 
that  state,  and  a  distinguished  nieniber  of  its 
bar. 

In  the  fall  of  that  year  Mr.  l-'ifield  returned 
to  the  university  and  attended  the  law  school 
during  the  session.  He  returned  hdine  in  the 
spring  of  1866,  and  continued  liis  legal  studies 
with  Governor  Blair  until  December.  1866, 
when,  upon  examination,  he  was  admitted  to 
practice  in  all  the  courts  of  the  state,  and  in 
the  Federal  courts  at   Detroit. 


He  continued  with  Governor  Blair  until  Au- 
gust, 1868,  when  he  started  for  California,  by 
way  of  Panama.  He  arrived  in  San  Fran- 
cisco on  September  25,  1868,  and  on  October 
I,  1868,  opened  an  office  in  that  city,  where  he 
has  practiced  his  profession  continuously  ever 
since,  a  portion  of  the  time  in  partnership 
with  others,  and  the  balance  of  the  time  alone. 
At  present  he  is  a  partner  of  James  Thomas 
Boyd,  under  the  firm  name  of  Bovd  &  Fi- 
field. 

Mr.  Fifield  has  never  held  any  public  office, 
but  during  the  years  1898  and  1899  'le  was 
president  of  the  San  Francisco  Bar  Associa- 
tion. He  is  one  of  the  most  gifted  and  in- 
dustrious men  at  the  bar  of  the  State,  and  has 
manv  fine  social  qualities. 


JOHN  F.  FINN. 


John  F.  Finn  was  born  on  the  island  of 
Cuba,  in  1839.  We  have  known  him,  in  Cali- 
fornia and  Nevada,  for  about  forty  years. 
He  settled  at  San  Francisco  about  the  year 
1864.  In  1867-68  he  was  the  attorney  for  the 
public  administrator,  William  A.  Quarles,  and 
later  for  public  administrator  Simon  Mayer. 
He  was  defeated  on  the  Republican  ticket  for 
justice  of  the  peace  in  1869.  At  the  first  elec- 
tion under  the  present  constitution,  in  1879.  he 
was  chosen,  as  a  Republican,  one  of  the 
twelve  Judges  of  the  new  Superior  Court,  and 
drew  a  one-year  term,  which  he  served.  The 
proceedings  in  the  great  Blythe  estate,  and 
those  in  the  Sharon  divorce  case  were  begun 
before  him,  but  were  .soon  transferred  to  other 
departments.  The  Jud.ge  was  elected  his  own 
successor  for  a  full  term  of  six  years  in  the 
fall  of  1880,  and  again  for  a  full  term  in  the 
fall  of  1886.  In  January.  1893.  after  thirteen 
years  on  that  bencli,  he  voluntarily  retired. 

At  the  .same  time  Judge  Finn  retired  from 
the  profession  of  law.  He  was  always  a  provi- 
dent man.  of  excellent  life,  and  is  in  the  enjoy- 
ment of  a  fortune.  He  has  a  wife,  but  no  issue. 
He  and  Mrs.  Finn  spend  the  greater  part  of 
their  time  in  travel.  A  letter  which  we  re- 
ceived from  him  recently  shows  that  they  arc 
passing  the  winter  of  1900-1901  in  the  south  of 
France. 

L.    H.    l-OOTF. 

General  Lucius  H.  Foote.  whn  h.is  had  such 
a  long  public  career,  marked  by  uninterrupted 
good  fortune,  was  a  practicing  l.iwyer  at  the 
capital  cil3'  in  the  fifties,  and  in  San  Fran- 
ci.sco  a  generation  later.  The  General  is  one 
of  the  men  of  our  bar  to  whom  we  have  sev- 
eral limes  referred,  who  were  born  in  the  year 
1826.  The  month  and  day  were  .April  10.  and 
the  i)lace  Winfield.  Herkimer  county.  New 
York.  He  was  educated  at  Knox  College, 
Illinois,  and  at  Western  Reserve  College.  Ohio. 
He  came  to  California  in  1853.  and  Incated  at 
Sacramento  where  he  was  admitted  to  the  bar 
in  1856.  He  immediately  entered  uixm  his  pro- 
tracted pui)lic  service.  He  was  Justice  of  the 
Peace  in  the  city  named,  in  1856-57-38;  Po- 
lice Judge  in  1859-60;  collector  of  the  Port  of 
Sacramento.    ai)pi)iiiie(l    by    President    Lincobi, 


836 


History  of  the  Bench  and  Bar  of  California. 


in  1862-63-64;  State  adjutant-general,  under 
his  warm  personal  triend.  Governor  Newton 
Booth,  in  1872-73-74-75,  and  a  delegate  to  the 
Republican  National  convention  which  nomi- 
nated Hayes  and  Wheeler,  in  1876. 

In  the  latter  year  General  Foole  removed  to 
San  Francisco.  He  was  appointed  by  Presi- 
dent Hayes  United  States  Consul  to  Valpa- 
raiso, Chile,  and  served  as  such  for  four  years 
— 1877-1880.  President  Garfield  appointed  him 
United  States  Minister  to  Corea,  which  posi- 
tion he  held  for  the  years  1881-82-83.  He  then 
returned  to  San  Francisco.  In  1891  he  became 
secretary  of  the  California  Academy  of 
Sciences,  of  that  city,  and  treasurer  of  that 
great  and  (thanks  to  the  munifiicence  of  James 
Lick)    flourishing   institution. 

The  (k-ncral,  who  is  a  man  of  culture  and 
distinguished  presence,  possesses  literary  abil- 
ity of  a  high  order.  He  has  been  writing  for 
forty  years  in  prose  and  verse,  to  the  delight 
of  the  world  of  letters.  In  life's  evening  he  is 
still  sunny-tempered,  as  we  remarked  of  Holla- 
day.   He   is   well   off. 

"'I'he  sea,  the  sky,  the  landscape,  all  belong 
To  him  who  lifts  on  high  his  heart  in  song." 


HENRY   L.    FORD. 


Henry  L.  Ford  was  born  May  15th,  i860,  at 
Noyo,  Mendocino  county,  California.  Hi,s 
father  was  Captain  Henry  L.  Ford  who  came 
to  California  in  1842.  Captain  Ford  took  a 
prominent  part  in  the  Bear  Flag  rebellion,  and 
designed  the  bear  that  was  painted  on  the  Hag 
that  was  raised  in  Sonoma  county  in  1846. 
He  was  also  commander  of  one  of  the  com- 
panies in  that  rebellion.  Captain  Ford  was 
accidentally  killed  while  his  son  was  a  small 
child.  The  widow  then  married  Archibald  P. 
Osborn,  a  veteran  of  the  Mexican  War.  Mr. 
Osborn  moved  to  Humbolt  county  in  1864.  and 


was  one  of  the  pioneers  of  that  county.  He 
served  as  first  sergeant  in  Company  A.  Cali- 
fornia Volunteers,  and  held  numerous  town- 
ship and  county  offices.  His  death  occurred  in 
1894. 

Mr.  Ford  conceived  the  idea  of  being  a  law- 
yer when  he  was  about  eighteen  years  of  age. 


From  his  own  earnings  he  purchased  his  law 
books  with  which  to  begin  study.  As  to  what 
books  to  read  he  was  advised  by  Hon.  J.  J. 
DeHaven,  the  present  United  States  District 
Judge.  In  January,  1887,  he  located  at  Eureka, 
and  entered  the  law  office  of  Hon.  E.  W.  W^il- 
son,  who  is  now  presiding  Judge  in  Department 
Two  of  the  Superior  Court  of  Humboldt 
county.  It  is  to  the  kindness  of  Judge  Wil- 
son that  he  owes  much  of  the  success  he  at- 
tained in  after  years.  In  April  of  that  year 
he  was  admitted  to  practice  in  the  courts  of 
this  State.  From  that  time  he  advanced  rapidly 
into  prominence  and  is  now  one  of  the  leading 
lawyers  of  Northern  California.  Mr.  Ford 
expresses  it  as  his  opinion  that  Humboldt 
county  has  the  brightest,  best  and  kindest  as- 
semblage of  lawyers  in  the  State ;  that  both 
judges  and  lawyers  treat  each  other  as  if  they 
were  all  members  of  one  fraternal  organiza- 
tion, having  for  its  aim  and  end  the  prosperity 
and  happiness  of  its  members. 

On  May  ist.  1889,  Mr.  Ford  was  joined  in 
marriage  with  Miss  Nellie  Woodlee,  a  daugh- 
ter of  Henderson  Woodlee,  a  pioneer  of  Hum- 
boldt county.  In  July,  1897,  Judge  De  Haven, 
of  the  United  States  District  Court  appointed 
him  United  States  commissioner,  which  office 
he  still  holds.  He  has  a  large  practice  in  the 
courts  of  three  counties.  It  is  claimed  for  him 
that  he  has  the-  largest  practice  in  Humboldt. 
He  owns  an  extensive  and  costly  and  well- 
selected    law   library. 


TIREY  L.   FORD. 

Tirey  L.  Ford  was  born  in  Monroe  county. 
Missouri,  December  29,  1857.  He  was  raised 
on  a  small  farm,  attending  the  di.strict  school 
in  winter  and  laboring  on  the  farm  in  sum- 
mer. By  working  mornings,  evenings  and 
Saturdays,  he  managed  to  attend  the  high 
school  at  the  county  seat  of  his  county,  from 
which  he  was  graduated  in  June,  1876.  He 
came  to  California  in  February.  1877.  and 
worked  as  a  farm  hand  on  different  ranches 
in  Colusa  and  Butte  counties  until  January, 
1880,  when,  having  laid  by  a  few-  hundred 
dollars,  he  entered  the  office  of  Park  Henshaw 
in  Chico.  where  he  studied  law.  In  August. 
1892.  he  was  admitted  to  practice  by  the  Su- 
l)reme  Court  of  this  State. 

General  Ford  began  the  practice  of  law  in 
Oroville,  but  removed  to  Downieville,  Sierra 
county,  in  January.  1885,  where  he  soon  built 
up  a  splendid  practice.  In  1888  he  was  elected 
district  attorney  of  Sierra  county  and  was  re- 
elected  in   1890. 

In  1892  he  was  elected  State  senator,  repre- 
senting the  counties  of  Plumas,  Sierra  and 
Nevada  at  the  sessions  of  1893  and  1895. 

In  April,  1895,  he  was  employed  by  the 
board  of  state  harbor  commissioners  at  San 
Francisco  to  attend  to  their  legal  matters.  He 
continued  to  act  as  the  attorney  for  the  board 
until  elected  attorney-general.  This  was  at 
the  general  election  in  November,  1898. 

As  State  senator.  General  Ford  secured  a 
considerable  amount  of  legislation  which  was 
desire  1  by  the  miners,  and  became  quite  inti- 
mately identified  with  mining  interests  in  gen- 


History  of  the  Bench  and  Bar  of  California. 


s;i7 


eral.  As  ,attorney  for  the  board  of  state  har- 
bor commissioners  he  was  exceptionally  fortu- 
nate in  having  his  opinions  upheld  by  the 
courts  wherever  the  same  became  the  sub- 
ject of  judicial  investigation.  He  also  re- 
covered for  the  State  a  strip  of  land  on  Chan- 


nel street  on  the  water  front  in  San  Francisco, 
which  had  been  occupied  by  the  Southern  Pa- 
cinc  Company  for  some  twenty-five  years,  and 
which  had  been  the  subject  of  legal  investi- 
gation by  his  predecessors,  but  concerning 
which  nothing  definite  had  been  done  until 
he  finally  brought  the  matter  to  a  successful 
conclusion  in  the  courts. 

What  our  subject  has  done  as  attorney-gen- 
eral is  too  recent  to  need  recapitulation  here. 
His  opinions  have  been  almost  uniformly  up- 
held by  the  courts  and  rarely  has  he  lost  a 
contested  case.  In  one  instance  he  saved  the 
State  something  like  a  quarter  of  a  million 
of  dollars.  Before  he  took  his  present  ofiice 
the  Supreme  Court,  through  one  of  its  de- 
partments, had  decided  against  the  State  in 
the  matter  of  the  Stanford  inheritance  tax. 
General  Ford  secured  a  re-hearing  and  argued 
the  matter  before  the  court  in  banc.  The  court 
finally  rendered  its  decision  in  favor  of  the 
State,  which  involved  the  payment  by  the 
Stanford  estate  of  about  a  quarter  of  a  mil- 
lion of  dollars  into  the  State  treasury. 

The  suit  which  he  recently  brought  for  the 
board  of  railroad  commissioners  against  the 
Southern  Pacific  Company  to  compel  that 
company  to  restore  its  lowered  rates  between 
San  Francisco  and  Fresno  and  other  San 
Joaquin  valley  points,  resulted  in  a  judgment 
against  the  railroad  companv.  The  case  was 
on  appeal  to  the  Sui)rcme  Court  at  the  time 
of  this  publication. 

In  April,  iqoo.  (leneral  I'ord  had  occasion 
to  go  to  Wasliington.  D.  C.  to  argue  a  rail- 
road tax  case  before  the  United  States  Su- 
I)reme  Court.  The  case  involved  taxes  due 
l)v  the  Santa  Fe  Railroad  Companv  to  the 
State  of  California.  The  Sui)reme  Court  de- 
cided the  case  in  favor  of  the  State  and  against 
the  railroad  company,  thus  enabling  the  Gen- 
eral to  .score  a  victory  of  which  he  has  just 
can-e  to  feel  proud. 


General  Ford  is  extremely  modest  in  di>- 
cussing  his  unusual  success  in  professional  and 
political  life.  His  friends,  however,  do  not 
hesitate  to  give  him  full  credit  for  the  energy 
and  ability  upon  which  his  success  has  been 
bnilt. 

JOIIX   E.   FOCI.DS 

1  his  well-known  figure  is  seen  almost  every 
day  in  the  law-world  of  our  chief  city,  in  the 
beaten  track  of  toilsome  achievement.  He  has 
been  quietly  trying  cases  for  the  great  rail- 
road companies  for  more  than  twenty  years. 
For  a  considerable  period  he  was  employed 
in  the  lower  courts,  but  redeemed  the  time,  and 
gradually  pressed  into  conspicuous  place,  until 
now  his  printed  arguments  are  thick  among 
the  files  of  the  Supreme  Court.  We  well  re- 
call occasions,  in  the  late  '70s.  when  we  saw 
him  before  justices  of  the  peace,  passing  his 
novitiate  in  unobtrusive  yet  ambitious  cflFort. 
He  has  literally  worked  his  way  up  the  height. 

Mr.  Foulds  began  his  business  life  as  a 
phonographcr.  He  came  to  San  Franci.sco 
in  1871,  with  a  view  to  following  that  avoca- 
tion. He-  soon  seciu-ed  a  position  in  the  offices 
of  the  old  Southern  Pacific  and  Central  Pa- 
cific Railroad  Companies  as  shorthand  writer 
and  clerk.  This  position  he  retained  for  some 
years  after  his  admission  to  practice  law. 
After  a  full  course  of  reading  he  was  admitted 
to  the  bar  of  the  State  Supreme  Court  in  1876. 
His  transition  to  the  more  trustful  relation  of 
attorney  was  not  sudden  nor  experimental. 
He  handled  small  cases  in  court  while  yet 
nominally  a  law  clerk.  It  was  in  1879  that 
he  became  one  of  the  regular  attorneys  of 
the  Ceiural  Pacific.  In  1881  the  Southern 
Pacific  Railroad  Company  was  also  his  client, 
and  when,  in  1885,  or  thereabouts,  the  South- 
ern Pacific  Company  was  formed,  leasing  the 
lines  of  the  Southern  Pacific  Railroad,  the 
Central  Pacific  Railroad,  and  other  railroads, 
Mr.  Foulds  became  one  of  the  regular  attor- 
neys of  the  later  corporation.  In  1888  he 
turned  to  practice  on  his  own  account,  and 
in  the  next  year  became  associated  with  Car- 
roll Cook,  now  Superior  Judge,  tmder  the 
style  of  Carroll  Cook  and  J.  V..  ImiuUIs.  After 
two  years  this  i)artnershi|)  w;is  dissolved,  and 
Mr.  iMiidds  returned  to  his  old  place  in  the 
law  department  of  the  Southern  Pacific  Com- 
pany,  which   he  still   holds. 

Mr.  Foulds'  latest  case  ou  behalf  of  the 
railroad  company  was  the  important  and  inter- 
esting one  of  the  Board  of  Railroad  Com- 
missioners against  the  Southern  Pacific  Rail- 
road Comp.'iny.  ;ind  the  Southern  P.icifie  Com- 
pany, in  which  the  defendaiUs  were  charged 
with  violation  of  the  State  constitution  in  re- 
ilucing  an  established  rale  for  the  puri)ose  of 
meeting  eonii)etition,  and  thereafter  raising 
the  same  without  the  consent  of  the  Railroad 
Connnissioners.  On  the  appeal  by  the  de- 
fendants, their  cause  was  presented  by  Mr. 
ImiuUIs  and  John  (iarber.  Mr.  Foulds  making 
the  opening  argument,  and  Judge  (larber  clos- 
ing— September,  1900. 

Mr.  Foulds  is  a  native  of  Fnglaii<l.  born  in 
1S48.      I  lis   home   is   in    Berkeley. 


838 


History  of  the  Bench  and  Bar  of  California. 


A.  C.  FREE.MAX. 

A.  C.  Freeman,  who  has  long  enjoyed  a  na- 
tional reputation  as  an  author  of  law  books, 
was  born  in  Illinois,  May  15,  1843.  He  came 
to  this  State  long  prior  to  becoming  of  age, 
and  lived  on  a  farm  in  Sacramento  county. 
He  went  to  the  capital  city  during  the  great 
flood  of  the  winter  of  1861-62,  and  took  up 
the  study  of  his  life.  In  1865  he  was  admitted 
to  the  bar  of  the  Supreme  Court.  His  first 
law  book,  "A  Treatise  on  Judgments,"  ap- 
peared in  1873.  His  various  other  works  are 
named  in  the  list  of  California  law  books  else- 
where in  this  History.  On  the  death  of  John 
Proffatt,  LL.  B.,  he  was  engaged  by  the  pub- 
lishers of  "American  Decisions,"  his  work  in 
that  series  beginning  with  volume  12. 

Mr.  Freeman  removed  to  San  Francisco  in 
1885.  He  has  always  since  been  occupied 
there,  not  only  in  writing  and  editing  law 
books,  but  in  the  active  practice  of  law.  He 
is  the  editor  of  the  Bancroft-Whitney  Co.'s 
publications.  He  is  no  mere  theorist,  but  emi- 
nently practical,  well-grounded,  as  will  be 
readily  accepted  in  legal  science  and  of  indis- 
puted  ability  and  skill  in  the  trial  of  cases,  as 
well  as  in  their  presentation  and  argument. 
From  a  business  standpoint,  also,  his  career 
has  been  one  of  marked  success.  He  has 
amassed  a  fortune,  and  has  in  his  charge,  as 
legal  adviser  or  attorney,  the  affairs  of  many 
corporations  and  solid  men  of  both  the  me- 
tropolis and  the  capital. 


FRED  W.  FRY. 


Fred  W.  Fr\'  was  born  on  a  farm  in  cen- 
tral Michigan,  October  13,  1857.  At  the  age 
of  seven  years  he  moved  with  his  parents  to 
Leslie,  in  that  state,  where,  at  the  age  of 
twenty  years,  he  was  graduated  from  the  Les- 
lie High  School,  after  having  completed  a 
three-years'  classical  preparatory  course  for 
the  Ann  Arbor  University.  After  completing 
his  education  he  acted  on  the  Greeley  motto, 
"Go  West,"  and  moved  to  western  Kansas 
and  sought  the  illusive  wealth  from  the  rich 
prairie  lands  there  so  promising;  but,  after 
three  dry  years  in  succession,  he  returned  to 
Michigan  for  new  start,  and.  after  a  little 
financial  recuperation  from  school  teaching 
and  kindred  lines  of  employment,  he  shook 
the  Michigan  dust  from  his  shoes  the  second 
and  last  time.  On  September  30,  1885,  he 
landed  in  Oakland,  California,  with  his  family, 
emptj'-handed,  but  with  a  wealth  of  energy  and 
determination. 

Mr.  Fry  had  always  cherished  the  hope  of 
engaging  in  the  practice  of  law,  and  had  spent 
his  spare  time  (something  on  the  Lincoln 
style)  in  the  study  of  Blackstone.  A  chance 
acquaintance  with  Hon.  M.  C.  Chapman  re- 
sulted in  an  invitation  to  Mr.  Fry  to  share 
Mr.  Chapman's  office  and  use  his  library.  Mr. 
Fry,  from  this  time  on,  gave  his  entire  time 
10  the  study  of  law,  and  was  known  among 
liis  limited  circle  of  acquaintances  as  a  close 
and  forcible  reasoner  and  as  an  exceptionally 
hard    student.      After   a   highly   creditable   ex- 


iimination  before  the  Supreme  Court  of  the 
Slate  of  California,  on  the  2d  day  of  August, 
1887,  and  as  a  member  of  a  large  class  then 
seeking  admission  to  the  bar,  he  found  his 
name  first  on  the  list  of  successful  aspirants. 
Subsequently  he  was  admitted  to  practice  in 
the  Federal  courts,  and,  after  one  year  more 
with  Mr.  Chapman,  he  formed  a  partnership 
with  Hon.  C.  G.  Dodge,  which  continued  up 
to  four  years  ago.  Since -that  time  Mr.  Fry 
has  conducted  a  well-equipped  office  in  Oak- 
land, and  met  with  signal  success  in  the  pro- 
fession. His  practice  has  been  extensive  and 
varied,  and  has  led  him  into  every  branch  of 
the  law  and  into  all  State  and  Federal  courts. 
He  has  a  special  liking  for  constitutional  ques- 
tions, and  has  frequently  been  employed  by  the 
Merchants'  Exchange  of  Oakland,  and  others, 
to  test  the  validity  and  constitutionality  of 
ordinances.  In  that  line  of  cases  he  has  an  un- 
broken record  of  success. 


L.  C.   GATES. 


Mr.  Gates  was  born  in  Preble  county,  Ohio, 
April  4,  1856.  He  was  educated  in  the  com- 
mon schools  of  Ohio  and  Indiana,  supple- 
menting a  very  desultory  training  by  teach- 
ing for  some  six  years.  He  never  attended  a 
college  or  law  school.  He  began  to  read  law 
in  the  office  of  Lee  Brumbaugh,  at  Miamisburg, 
Ohio,  in  1879.  After  Mr.  Brumbaugh's  death, 
which  occurred  in  1S80,  Air.  Gates  entered  the 
law  office  of  Nevin  &  Kumler,  at  Dayton, 
Ohio.  He  was  admitted  to  the  bar  in  May  of 
1881,  by  the  Supreme  Court  of  Ohio.  After 
practicing  law  for  three  years  at  Miamisburg, 
he  was  compelled  to  abandon  the  practice  on 
account  of  ill  health,  brought  on  by  over- 
work. He  believed  at  the  time  that  he  should 
never  return  to  the  practice  again.  Removing 
to  Kansas  in  1885,  he  took  up  the  business  of 
stock  raising,  at  'which  he  continued  for  three 
years,  when  he  was  again  drawn  back  into  the 
ranks  of  the  profession,  beginning  anew  the 
practice  at  Eldorado,  Kansas.  In  1892  he  re- 
moved to  Los  Angeles,  California,  to  take 
charge  of  the  legal  business  of  the  Los  An- 
geles Abstract  Company.  This  connection  has 
continued  with  that  company  and  with  its 
successor,  the  Title  Insurance  &  Trust  Com- 
pany, to  the  present  time.  During  all  his  pe- 
riod in  Los  Angeles  he  has  devoted  his  entire 
time  and  attention  to  the  law  of  titles  to  real 
estate.  His  efforts  in  that  direction  have  been 
attended  with  a  great  degree  of  success. 

HENRY  T.  GAGE. 

We  have  seen  that  the  first  Governor  of  the 
State  was  a  lawyer;  and  so  is  the  latest,  and 
twentieth.  The  lawyers  embrace  just  one- 
half  of  the  whole  array— if  we  place  Bartlett 
among  the  number  and  leave  Booth  cut.  Bart- 
lett and  Booth  were  admitted  to  the  bar. 
Booth  never  practiced.  Bartlett  can  hardly 
be  connected  with  the  profession.  He  was 
early  a  printer,  and  late  secretary  of  the  San 
Francisco  Chamber  of  Commerce,  and  for 
sixteen   years   in   various   public   offices. 


Henry    T.    Gage 


I 


History  of  the  Bench  and  Bar  of  California. 


841 


(iovcrnor  Gage  is  the  fifth  resident,  and  the 
second  hiwj-er.  of  Los  Angeles  county,  who 
lias  occupied  the  executive  chair.  John  G. 
Downey  was  Governor  in  1 860-61  ;  George 
Stoneman.  1883-86;  R.  W.  Waterman.  1887- 
90.  and  H.  H.  Markham.  1891-95.  Downey 
and  Waterman  were  elected  each  as  lieuten 
ant  governor,  but  were  called  to  fill  vacan- 
cies, and  served  nearly  full  terms. 

Henry  T.  Gage  was  born  near  Geneva,  New 
\'ork,  in  November,  1853.  He  grew  up  in 
the  state  of  Michigan,  whither  his  parents  had 
removed,  and  received  a  good  education.  He 
began  the  practice  of  law  at  Los  Angeles,  in 
1877.  at  the  age  of  twenty-four.  It  was  just 
at  the  dawn  of  an  era  of  unexampled  activity 
and  prosperity  in  that  city  and  section,  and 
he  made  good  use  of  his  abilities  and  oppor- 
tunities. He  acquired  very  soon  a  good  law 
l)ractice,  which  grew  larger  and  larger  for 
many  years.  Early  entering  into  politics  on 
the  Republican  side,  he  became,  by  reason  of 
his  strong  personalit}'  and  general  capability 
for  leadership,  a  controlling  spirit  in  the  coun- 
cils of  his  party,  presiding  over  committees 
and  conventions,  and  helping  to  shape  plat- 
forms and  make  tickets.  He  was  a  delegate 
10  the  National  Republican  convention  at  Chi- 
cago in  1888.  In  that  body,  as  the  selected 
spokesman  of  the  California  delegation,  he 
made  a  speech  seconding  the  nomination  of 
Levi  P.  Morton  for  the  Vice-Presidency,  and 
was  otherwise  prominent. 

(Governor  Gage  never  served  in  the  legisla- 
ture. Only  eight  of  our  twenty  Governors 
passed  through  that  body.  He  was  nominated 
as  a  man  who  was  distinguished  at  the  bar, 
successful  in  business,  a  student  of  public 
questions,  and  one  of  the  ablest  and  most 
aggressive  exponents  of  party  principles.  He 
was  elected  to  his  present  high  office  in  No- 
vember. i8g8,  his  Democratic  opponent  being 
James   Ci.    Maguire. 


THOAL\S  J.  GEARY. 

Thomas  J.  Geary,  who  was  a  representa- 
tive in  congress  from  the  First  California  dis- 
trict for  a  fractional  term  and  two  terms — 
from  December,  1890,  to  March  4.  1895 — was 
born  in  Boston,  Massachusetts,  January  18. 
1854.  He  came  with  his  parents  to  California 
in  .\pril,  1863.  the  family  settling  at  Santa 
Rosa.  There  Air.  Geary  was  reared  and  edu- 
cated, and  prepared  for  the  bar.  He  was  ad- 
mitted to  practice  by  the  Supreme  Court  in 
1877,  and  was  occupied  with  his  profession  at 
Santa  Rosa  from  that  time  until  he  look  his 
seat  in  congress  in  1890.  He  was  elec'ed,  as 
a  Democrat,  district  attorney  of  Sonoma 
county,  in  1882,  and  served  the  term  of  two 
years,  1883-84.  He  was  elected,  as  a  Demo 
crat  and  .American,  to  the  closing  session  of 
the  Fifty-first  congress  in  November  1890,  to 
fill  the  vacancy  caused  by  the  resignation  of 
John  J.  DeHaven.  At  the  satiic  election  he 
was  chosen  as  representative  in  the  Fifty-sec- 
ond congress,  which  met  on  March  4,  1891. 
and    was    re-elected    in     November,     189-',    to 


tile  Fifty-third  congress,  as  a  Democrat  and 
American,  receiving  19.306  votes  against  13,123 
votes   for   E.   W.    Davis,   Republican. 

Mr.  Geary  removed  to  Nome  City,  Alaska, 
in  the  summer  of  1900.  He  bore  a  high  repu- 
tation for  general  ability  at  the  bar.  and  was 
very  widely  known,  and  in  the  new  camp 
promptly  took  first  place.  Important  litiga- 
tion begun  there,  in  which  he  was  employed, 
and  which  was  carried  to  the  Federal  courts 
in  San  Francisco,  caused  his  return  to  that  ■ 
city  in  tiie  following  fall,  and  he  wintered 
there. 

An  article  by  Mr.  Geary  on  the  Chinese 
question  appeared  in  the  Xortli  Aiiicricau 
Rcvici^'.    of    July,    1893. 


J.    N.    GILLETT. 

J.  N.  Gillett  was  born  in  Sparta,  Wisconsin, 
in  i860.  He  was  admitted  to  practice  in  that 
state  in  1881.  He  came  to  California  in  1884. 
and  located  in  Eureka,  Humboldt  county, 
where  he  has  ever  since   resided. 

Mr.  Gillett  was  elected  to  the  Stale  senate 
in  November,  1896,  and  was  chairman  of  the 
judiciary  committee,  at  the  session  of  1897. 
He  has  a  large  and  lucrative  practice,  and  is 
the  attorney  for  large  corporative  interests  in 
Humboldt  county.  He  is' a  very  excellent  man 
and  lawyer,  who  has  done  a  good  part  l)y 
his  profession  and  his   State. 


ANDREW  GLASSELL. 

This  long-honored  citizen  of  Los  Angeles, 
who  retired  from  the  bar  many  years  ago, 
was  born  in  Virginia,  September  30,  1827.  His 
father,  Andrew  Glassell,  and  his  mother,  Su- 
san Thornton,  were  also  natives  of  that  state, 
and  were  married  there.  His  grandfather. 
Andrew  Glassell,  the  first  of  his  paternal  line 
to  settle  in  America,  emigrated  to  X'irginia 
from    Scotland,    his    country. 

Our  subject  removed  with  his  parents  to 
Alabama  when  he  was  seven  years  old.  The 
father  engaged  in  cotton  planting,  and  the  .son 
was  well  educated,  graduating  from  the  I'ni- 
versity  of  Alabama  in  1848.  He  was  admitted 
to  the  bar  of  the  United  States  Supreme  Court 
in  1853.  Coming  to  California  in  that  year, 
and  presenting  to  our  State  Supreme  C<iurl 
a  complimentary  testimonial  letter  from  Hon. 
John  .\.  Camiibcll,  a  Justice  of  the  Supreme 
Court  of  the  United  States,  he  was  admitted 
to  iiractice  here  without  the  formality  of  an 
examination.  Soon  afterwards  he  was  .qi- 
pointed  deiiuty  ^United  States  district  attor- 
ney at  San  Franci.sco.  He  held  the  jiosilitm 
for  about  three  years,  which  jieriod  was  prin- 
cipally .siient  in  trying  a  large  number  of 
accumulated  land  cases  in  the  L'nited  Slates 
District  Court.  He  then  engaged  in  private 
law  practice  until  the  Civil  War  opened.  He 
then  withdrew  from  law  business,  like  Solo- 
mon Heydenfeldt,  (Iregory  Yale,  E.  J.  Prin- 
gle,  and  other  distinguished  men  of  Southern 
birth,  and  \'olney  E.  Howard,  of  Los  An- 
geles who  was  ;i  Southern  ni.m  in  s\nipa- 
thv.   ' 


842 


History  of  the  Bench  and  Bar  of  California. 


Mr.  Glassell  then  went  into  the  business  of 
manufacturing  staves  in  Santa  Cruz  county. 
He  had  a  steam  sawmill,  and  employed  a 
large  force  of  men.  When  the  war  was  con- 
cluded he  settled  at  Los  Angeles,  and  re- 
sumed the  practice  of  law,  in  partnership  with 
Alfred  B.  Chapman,  a  former  captain  in  the 
regular  United  States  Army.  The  firm  name 
was  Glassell  &  Chapman.  George  H.  Smith, 
who  had  been  a  colonel  in  the  Confederate 
Army,  joined  the  firm  when  it  was  about 
three  years  old.  and  the  name  became  Glas- 
sell, Chapman  &  Smith.  This  continued  to 
the  year  1880.  In  that  year  Captain  Chap- 
man withdrew,  and  went  into  orange  grow- 
ing on  a  large  scale,  on  a  fine  estate,  near 
San  Gabriel.  Mr.  Glassell  also  retired  mi 
188^  with  a  considerable  fortune,  which  has 
largely   increased   in   the   years   since   flown. 

Mr.  Glassell  married,  first,  a  daughter  of 
the  great  San  Francisco  physician,  H.  H.  To- 
land.  She  died  in  1879.  There  were  nine 
children  of  this  union.  All  were  living  a  few 
years  ago.  and  are  still,  w^e  believe.  The  pres- 
ent Mrs.  Glassell.  who  was  married  in  1885, 
is  a  daughter  of  William  C.  Micou,  an  emi- 
nent lawyer  of  New  Orleans. 

Since  the  above  was  written.  Mr.  Glassell 
died  at  his  home  in  Los  Angeles.  January  27, 


igoi. 


HIRAM  L.  GEAR. 


Hiram  L.  Gear  was  born  in  Marietta,  Ohio, 
December  ist,  1842.  He  graduated  from  Mar- 
ietta College  in  1862,  with  honor,  and  was 
chosen  as  a  member  of  the  Phi  Beta  Kappa 
Society.  He  came  to  California  in  1863,  and 
was  admitted  to  the  bar  of  the  District  Court, 


in  Downieville.  Sierra  county,  before  Hon. 
I.  S.  Belcher.  District  Judge.  He  married  a 
daughter  of  Judge  P.  Vanclief,  and  practiced 
law  in  partnership  with  that  eminent  jurist  at 
Dow-nieville.  and  afterwards  at  Quincy,  Plumas 
county.  He  was  admitted  to  the  Supreme 
Court    of    California    in    1866.    and    has    since 


practiced  in  the  courts  of  California,  in  the 
courts  of  Ohio,  and  in  the  United  States 
courts.  He  was  admitted  to  the  courts  of 
Ohio  in  1870,  to  the  Circuit  Court  of  the 
United  States,  ninth  circuit,  District  of  Cali- 
fornia in  1883,  to  the  Circuit  Court  of  Appeals 
for  the  ninth  circuit,  in  1891,  and  to  the 
Supreme  Court  of  the  United  States  in  1893. 
From  1868  to  1870  he  was  district  attorney  of 
Plumas  county.  While  practicing  at  Downie- 
cville  and  Quincy,  he  was  engaged  in  numer- 
ous cases  of  importance,  among  which  was  one 
involving  the  validity  of  $230,000  of  railroad 
bonds  imposed  by  the  legislature  upon  Plumas 
county,  without  its  consent,  from  the  burden 
of  which  the  county  was  fully  relieved  as  the 
result  of  litigation  undertaken  by  the  county. 
In  1870  Mr.  Gear  went  back  to  Ohio.  In  1883 
he  again  returned  and  located  permanently  in 
San  Francisco.  He  became  the  author  of 
Gear's  Analytical  Index  Digest  of  California 
Reports,  and  of  Gear's  Landlord  and  Tenant. 
In  1888  he  became  deputy  reporter  of  the 
decisions  of  the  Supreme  Court  of  California, 
and  has  served  in  that  position  for  the  past 
twelve  vears.  Since  his  return  to  California, 
Mr.  Gear  has  been  engaged  in  numerous  cases 
of  importance ;  and  his  legal  abilities  have 
been  in  demand  as  assistant  counsel  to  leading 
attorneys  of  the  State. 

Mr.  Gear  has  always  been  a  man  of  pure, 
moral  life,  furnishing  a  splendid  example  to 
others. 

D.  R.  GALE. 

D.  R.  Gale  was  born  near  Arrow  Rock. 
Cooper  county,  Missouri,  January  17,  1855. 
At  the  age  of  two  years  his  parents  moved 
to  northeastern  Missouri,  and  settled  near 
Memphis.  Scotland  county.  Here  he  grew 
up,  spending  his  time  in  working  on  the 
farm  and  occasionally  attending  the  district 
school.  His  opportunities  for  acquiring  an  ed- 
ucation were  few,  as  the  services  of  himself 
and  of  his  older  brother,  John  P.,  were  re- 
quired upon  the  farm  as  soon  as  the  boys 
were  able  to  work.  In  the  face  of  these  dif- 
ficulties, however,  he  found  time  to  read  books 
which  were  of  practical  advantage  to  him  aft- 
erwards. Among  these  books  (the  most  of 
them  borrowed  from  acquaintances)  were 
"Hume's  History  of  England,"  "Struggles 
and  Triumphs  of  P.  T.  Barnum,"  "Life  of 
Washington."  "Paley's  Natural  Theology, ' 
and  "Sargent's  Life  of  Henry  Clay."  These 
books  were  read  again  and  again  with  deep 
interest. 

The  struggles  of  Clay  and  the  stories  of 
the  early  life  of  J.  Proctor  Knott  of  Ken- 
tucky, as  told  by  Riley  Gale  (father  of  the 
subject  of  this  sketch),  who  was  an  intimate 
friend  of  "Proc."  did  much  to  shape  the 
course  of  life  and  to  arouse  the  ambition  of 
this  youth. 

In  May,  1875.  he  left  his  old  home  in  Mis- 
souri, and  came  to  California,  determined  to 
obtain  an  education.  Arriving  at  Pctaluma, 
with  a  few  dollars  of  borrowed  money,  a 
small  valise  of  clothing,  and  a  few  books,  he 
soon  found  employment  on  a  farm  near  Peta- 


I 


846 


History  of  the  Bench  and  Bar  of  California. 

BE\'JAMh\    (GOODRICH. 


and  elected  by  a  large  majority  as  district 
attorney  of  Monterey  county,  the  duties  of 
which    office    he    very    ably    discharged. 

He  remained  in  Monterey  until  January, 
1873,  when  he  settled  at  Salinas  City,  to  which 
place  the  county  seat  had  been  removed.  He 
there  opened  a  law  office  and  was  in  the  same 
month  and  year  appointed  by  the  board  of 
supervisors  to  the  office  of  district  attorney 
to  fill  a  vacancy.  He  filled  the  unexpired  term, 
securing  the  conviction  of  many  noted  mur- 
derers   and     robbers. 

At  the  expiration  of  his  term  of  office  Mr. 
Geil  formed  a  partnership  with  Hon.  P.  K. 
Woodside.  ex-clerk  of  the  Supreme  Court 
of  the  State  of  California.  This  business 
arrangement,  however,  was  of  but  short  dura- 
tion, and  from  1875  to  1880,  he  practiced  alone 
at  Salinas  City.  In  1880  he  formed  a  partner- 
ship with  Hon.  H.  V.  Morehouse.  This 
association     was    continued     for     nine     j'ears, 


until  Mr.  Morehouse  moved  to  San  Jose, 
in  1890,  since  which  time  he  has  practiced 
alone.  During  the  twenty-seven  years  that 
he  has  been  settled  at  Salinas  City  he  has 
built  up  one  of  of  the  largest  practices  of  any 
lawyer  in  the  interior  of  the  State.  While 
he  has  a  large  and  lucrative  civil  business,  he 
is  also  widely  known  as  a  criminal  lawyer. 
During  his  professional  career  he  has  defended 
no  less  than  thirty-six  persons  charged  with 
murder,  only  five  of  whom  have  been  con- 
victed and  those  of  lesser  grades ;  and  he  has 
secured  the  acquittal  of  over  one  hundred  and 
fifty  persons  charged  with  felonies  of  less 
gravity. 

He  is  a  married  man  and  his  family  consists 
of  his  wife  and  two  daughters.  He  has  for 
many  years  been  a  member  of  the  Masonic 
fraternity,  having  served  for  three  years  as 
high  priest  of  Salinas  Chapter  No.  59,  R.  A. 
M.  He  is  now  a  Knight  Templar  and  Noble 
of  the  Mystic  Shrine:  and  is  also  a  prominent 
member  of  the  Order  of  Odd  Fellows. 


Mr.  Goodrich  was  born  in  the  Republic  of 
Texas,  in  1839.  His  father  was  Dr.  Benjamin 
Briggs  Goodrich,  who  was  one  of  the  signers 
of  the  Declaration  of  Texan  Independence. 
Dr.  Goodrich  was  also  a  member  of  the  con- 
stitutional convention  which  framed  the  con- 
stitution of  that  republic,  and  a  member  of 
congress  of  Texas  as  long  as  the  republic  ex- 
isted. John  C.  Goodrich,  an  uncle  of  our 
subject,  was  killed  at  the  Alamo,  in  Sar, 
Antonio,   Texas. 

Mr.  Goodrich  went  into  the  Confederate 
Army  in  the  fall  of  1861,  and  fought  through 
the  Civil  War.  When  the  war  was  over  he 
studied  law,  and  was  admitted  to  the  bar.  He 
practiced  in  Texas  from  1866  to  1880.  He 
then  removed  to  Arizona,  and  practiced  there 
until  1890.  In  the  latter  year  he  came  to 
California,  and  took  up  his  residence  at  Sail 
Diego.  He  remained  there  some  two  years, 
being  associated  in  practice  with  William  J. 
Hunsaker,  now  of  Los  Angeles,  and  with  E. 
W.  Britt,  afterwards  Supreme  Court  Com- 
missioner. He  settled  permanently  at  Los 
Angeles  in  1892.  At  that  place,  January  i, 
i8o7.  he  formed  a  partnership  with  Mr.  A.  B. 
McCutchen. 

Mr.  Goodrich  has  always  had  a  good  prac- 
tice in  Los  Angeles,  and  is  held  in  general 
esteem.  Judge  Silent,  who  made  his  ac- 
quaintance in  Arizona,  when  the  Judge  was 
on  the  Federal  bench  there,  cherishes  a  high 
regard  for  him,  as  also  do  ex-Superior  Judge 
W.  F,  Fitzgerald,  and  other  lawyers  of  first 
rank.  

PHILIP  G.  GALPIN. 

Mr.  Galpin  was  born  in  Buffalo,  New  York, 
February  3,  1830.  At  the  age  of  five  years  he 
was  adopted  by  and  took  the  name  of  his 
uncle,  Hon.  Philip  S.  Galpin,  of  New  Haven, 
Connecticut,  then  wealthy,  childless,  a  promi- 
nent leader  of  the  Whig  party  in  that  state, 
state  senator  from  New  Haven  several  times, 
and  for  several  consecutive  years  mayor  of  that 
cit}'.  Twice  tendered  a  nomination  for  con- 
gress when  his  party  was  in  power,  he  re- 
fused on  the  ground  that  he  did  not  wish  to 
exchange  his  comfortable  home  for  the  incon- 
veniences of  a  Washington  hotel. 

Interested  in  the  development  and  training 
of  his  adopted  son  he  gave  him  a  thorough 
classical  education  at  Russell's  Military  Acad- 
emy, and  after  that,  in  Yale  College  and  law 
school.  At  the  age  of  five  years  Philip 
changed  his  name,  on  his  own  motion,  from 
Philip  Galpin  Gleason  to  Philip  Gleason  Gal- 
pin :  and  from  that  time  on  resided  with  his 
uncle  and  was  brought  up  by  him  as  his  son. 
His  own  father's  name  was  Thomas  Gleason, 
born  in  Vermont  in  the  latter  end  of  the  pre- 
ceding century,  where  his  ancestors  had  settled 
before  the  War  of  the  Revolution.  His 
mother's  family  name  was  Fitch,  of  New 
Haven,  whose  ancestor.  Thomas  Fitch,  was 
the  last  governor  of  the  Colony  of  Connecticut, 
commissioned     by   the   king   of     England,    al- 


Philip  G.   Galpin 


History  of  the  Bench  and  Bar  of  California. 


849 


iliough  born  in  America.  He  resigned  his  cdui- 
nussu)n  at  the  breaking  onl  of  the  Revoln- 
lionary  War.  and  presided  at  the  first  meet- 
ing held  at  Norwalk  to  raise  troops  for  the 
patriot  army.  He  was  a  lawyer  by  profession, 
:!S   also  his   son,   and  grandson. 

Mr.  Galpin  graduated  from  Yale  in  the  class 
of  1849,  entered  Yale  law  school,  studied  in 
the  office  of  Charles  R.  Ingersoll  and  that 
of  Henry  B.  Harrison,  afterwards  Governor  of 
Connecticut,  and  was  admitted  to  practice  in 
the  Supreme  Court  of  that  state  in  1852.  He 
removed  to  Ohio  and  began  practice  at  Find- 
ley.  Two  years  after,  on  a  visit  to  New  York, 
he  was  offered  a  partnership  by  Robert  G. 
Pike,  which  he  accepted,  and  remained  in  prac- 
tice for  some  years  in  the  firm  of  Pike  & 
(ialpin  in  Wall  street.  He  came  to  California 
on  business  of  that  firm  in  1857,  and  remained 
here  for  two  years  to  argue  a  case  on  behalf 
of  the  heirs  of  Franklin  C.  Gray,  on  appeal 
to  tile  Supreme  Court,  known  as  Gray  vs. 
Palmer,  in  the  Ninth  of  California.  Winning 
I  his.  he  returned  to  his  partner  in  New  York, 
lie  again  temporarily  returned  here  in  1861, 
and  tried  several  actions  in  ejectment,  grow- 
ing out  of  his  successful  appeal  of  Gray  vs. 
Palmer.  Defeated  in  these  cases  in  the  Cir- 
cuit Court  in  California-,  he  took  a  test  case 
In  the  Supreme  Court  of  the  United  States, 
and  there  argued  Brignardello  vs.  Gray,  re- 
ported in  the  first  of  Wallace.  Decision  for 
tppellant.  The  contestants  still  holding  out. 
he  brought  the  suit  of  Galpin  vs.  Page,  and 
being  again  defeated  in  the  Circuit  Court  by 
tlie  principle  announced  in  the  Supreme  Court 
I  if  this  State  in  Hahn  vs.  Kelly,  34  Cal.,  on 
another  writ  of  error  to  the  Supreme  Court 
at  Washington,  he  there  overthrew  the  doctrine 
of  that  case  and  won  for  the  (irays  a  large 
amount   of   real   estate   in    San    Francisco. 

In  1865  Mr.  Galpin  again  rea])peared  teni 
porarily  in  California,  being  still  engaged  in 
practice  in  New  York,  and  brought  several 
suits  for  the  heirs  of  John  Hall  of  Phila- 
delphia, who  claimed  large  tracts  of  San  Fran- 
cisco. It  appeared  on  the  trial  that  John  Hall, 
a  lieutenant  in  the  United  States  navy  had 
gone  insane  while  stationed  in  San  Francisco, 
was  sent  home  by  the  government  in  charge  of 
an  officer,  and  the  insanity  becoming  perma- 
nent, was  confined  in  a  lunatic  asylum  near 
Philadelphia.  The  Records  of  San  I'rancisco 
showed  that  one  John  Hall  had  purchased 
from  the  early  alcaldes  numerous  fifty-vara 
lots,  and  designing  persons  ascertaining  this 
fact,  traced  him  to  the  asyhnu.  and  finally  suc- 
ceeded in  obtaining  from  him  a  power  of 
attorney,  whicli  was  (hil\-  acl^nciwlcdgi'd  in 
the  asylum  befon'  a  notary.  I'liiln"  iliis  power 
the  lands  in  controversy  were  sold.  riu-  trial 
court  found  for  the  j)laint*iff.  and  on  .1  wrii  of 
error  to  the  .Supreme  Court  of  ilu-  Uniicd 
States  that  court,  in  De.xter  vs.  liall.  13  Wal 
lace,  affirmed  the  judgment.  Tlu-  coini  or 
dered  two  argiuncnts.  Roscoe  Conkling  ap- 
pearing for  tlu'  writ.  The  (juestion  prcseiUed 
was  whether  the  jiower  of  attorney  oi  a  lu- 
natic was  void  oi-  was  voidable  only  as  siji^-d 
bv   Blackstone.      Tlu-  di'cisions  havi-  liren  botli 


ways,  but  the  Supreme  Court  held,  uu  the 
second  argument,  that  the  power  was  abso- 
lutely void,  and  the  eastern  lieirs  recovered 
their   land. 

Mr.  (jalpin  reappeared  some  years  later  in 
the  Supreme  Court  at  Washington  in  the  well- 
known  Montgomery  Avenue  lax  case  on  be- 
half of  the  property  holders,  and  there  that 
court  affirmed  the  doctrine  of  the  case  of  Mul- 
ligan vs.  Smith,  decided  in  his  favor  by  the 
Supreme  Court  of  tjiis  State  some  years  be- 
fore. 

In  18G8  Mr.  Galpin  traveled  in  Eur(}pe,  and 
then  resumed  practice  in  Wall  street.  In  the 
year  1875  li*i  came  to  California  to  remain, 
having  on  previous  occasions  continued  his 
residence  and  business  in  New  York.  Since 
1875  he  has  tried  numerous  cases,  some  of 
which  will  be  found  in  almost  every  volume 
of  the  Supreme  Court  Reports  of  this  State. 
After  a  residence  here  of  one  year,  his  first 
partnership  was  formed  with  John  B.  Har- 
mon (of  whom  a  sketch  appears  in  this  vol- 
inne).  This  lasted  until  1881.  when  the  strong, 
leading  combination  was  begun  by  John  T. 
Doyle.  VVilliam  Barl)er,  Mr.  Galpin  and  H. 
D.  Scripture,  under  the  style  of  Doyle.  Bar- 
ber, Galpin  &  Scripture.  Mr.  Barber  with- 
drew in  1885.  Mr.  Scripture  withdrew  and  re- 
tired from  practice  in  1889.  and  Mr.  Doyle  did 
the  same  a  year  later.  Since  January.  1899, 
Mr.  (iaipin  has  been  associated  with  his  pres- 
ent partner.  Mr.  A.  E.  Bolton.  He  holds 
idace  in  the  first  class  of  successful  lawyers. 
His  i)rofessional  career,  which  is  lengthening 
to  an  unconunon  span,  has  been  attended  with 
no  adversity. 

He  has  been  twice  married.  His  first  wife 
died  in  1883.  In  1885  he  married  Miss  Julia 
B.   Castro,   daughter  of  Vict<ir   Castro. 

In  politics  he  has  always  been  a  Democrat, 
liut  never  a  candidate  for  office.  He  has 
taken  an  active  part  in  recent  efforts  to  pro- 
cure a  better  government  for  San  Francisco, 
having  been  for  several  years  chairman  of  the 
judiciary  committee  of  the    Non-Parti.sans. 

The  Galpin  residence  occupies  .1  fine  site 
at  the  northeast  corner  of  Broadway  and 
(iough  streets,  where  the  family  have  lived 
f<)r    several    vcars. 


\1,|-Ri:i)    C.    G01.I)\b:R. 

Allied  ("barli-s  ( iojdner  wa^  born  in  Placer- 
ville.  I'^l  Doratlo  county.  California,  Xovember 
I,  1860.  of  (ierman  parents,  his  father  being 
a  nn'ner  and  merchant,  and  a  m;in  of  good 
nhualioii.  Ill'  studied  al  the  public  schcnds 
.-,n(l  Conkliu's  .\cademy  in  his  native  town. 
>■  lu  re.  on  ;lu-  141b  day  of  I'ebruary,  1879.  lu' 
enteri'd  liie  l.iw  office  of  Hon.  George  G. 
l'.lanchar<l.  iindei"  whose  supervision  he  pur- 
sued his  leual  studies  until  July  26.  i88t.  Then, 
at  fudge  HIanch.ird's  suggestion,  and  with  his 
assistance,  he  removed  to  San  I'rancisco.  in 
which  t:n\  be  continued  his  ]>reparations  for 
the  bar  in  the  office  of  Hon.  Paul  Ncmnann 
.ind  Henry  Fickhoff.  al  the  s.inie  lime  at- 
lendiii.t;    all    ihe    lectiu-es    .it    Hastings*    College 


850 


History  of  the  Dencli  and  Bar  of  California. 


of  the  Law.  He  was  admitted  to  the  bar  by 
the  State  Supreme  Court,  at  San  Francisco, 
on  August  9,  1882,  and  on  the  14th  opened 
an  office  in  Placerville.  In  May,  1884,  he  lo- 
cated in  San  Francisco,  and  has  ever  since 
practiced  law  there.  He  is  also  a  notary 
public  and  conveyancer.  Being  of  a  literary 
turn,  Mr.  Goldner  has  for  years  devoted  his 
leisure  moments  to  story  writing,  and  occa- 
sionally contributes  special  articles  to  the 
press. 

P.    F.    GOSBEY. 

P.  F.  Gosbey  was  born  in  the  town  of  Santa 
Clara,  county  of  Santa  Clara,  State  of  Cali- 
fornia, on  May  15.  i859-  He  attended  the 
public  schools  of  his  native  place  and  gradu-  , 
ated  from  the  high  school  in  1875.  In  the  fall 
of  the  same  year  he  entered  the  University  of 
the  Pacific,  completed  the  classical  course  and 
graduated  with  the  degree  of  A.  B.  in  1880. 
The  summer  and  fall  of  this  year  were  spent 
in  the  harvest  field  to  enable  him  to  raise  funds 
to  cancel  some  of  the  debts  incurred  to  meet 
the  expenses  of  his  last  year  in  college.  In 
the  spring  of  1881  Mr.  Gosbey  took  the  county 
examinations  of  the  board  of  education  of 
Santa  Clara  county  and  succeeded  in  getting  a 
teacher's  certificate.  In  the  summer  of  '81  Mr. 
Gosbey  was  chosen  to  teach  a  small  school  in 
Mount  Pleasant  district  in  Santa  Clara  county. 
In  June,  1882,  he  was  elected  principal  of  the 
public   school   at   Alviso.     In    October   of  the 


He  returned  to  San  Jose  and  began  his  work 
as  a  lawyer,  and  is  still  located  there.  Mr. 
Gosbey  has  been  prominent  in  the  Masonic 
Order,  and  the  Independent  Order  of  Odd 
Fellows,  having  been  grand  master  of  the 
State  of  the  latter  organization.  He  is  a  mem- 
ber of  the  legal  fraternity  of  Phi  Delta  Phi. 


WALKER  C.  GRAVES. 

Walker  Coleman  Graves  was  born  in  Fay- 
ette county,  Kentucky,  on  the  lOth  of  June, 
1849.     He  is  the  son  of  Coleman  and  Virginia 


.ji-j»*^rjr<^'it»s 


same  year  he  was  elected  by  the  board  of  edu- 
cation of  the  city  of  San  Jose  to  the  chair  of 
mathematics  in  the  San  Jose  high  school.  This 
position  he  held  until  June,  1886,  when  he 
resigned,  being  at  the  time  vice-principal^  of 
the  high  school.  Taking  with  him  the  savings 
of  his  work  as  school  teacher,  he  entered  the 
law  department  of  the  University  of  Michigan 
at  .'Knn  Arbor  in  1886,  and  graduated  therefrom 
in  1888  witli  the  degree  of  LL.  B.  Mr._  Gosbey 
was  elected  by  his  class  as  its  historian.  In 
the  fall  of  this  year  he  was  admitted  to  prac- 
tice law  in  this  State  by  the  Supreme  Court. 


Graves.  His  father  was  a  successful  farmer 
and  a  man  of  some  learning  and  culture,  and 
he  gave  his  son  the  opportunities  of  a  good 
education. 

Mr.  Graves  attended  the  University  of  Ken- 
tucky, taking  the  entire  course,  graduating  in 
Latin,  Greek,  French  and  German ;  and  but 
for  his  failure  to  stand  the  required  exam- 
ination in  conic  sections  (which  was  due  to 
his  sickness)  he  would  have  received  the  de- 
gree of  master  of  arts.  He  took  the  degree  of 
master  of  commerce  and  is  a  graduate  of  the 
law  department  of  the  university  named.  He 
was  admitted  to  practice  in  all  the  courts 
of  Kentucky  and  entered  the  law  office  of 
James  B.  Beck,  afterwards  United  States  sen- 
ator, at  Lexington. 

Mr.  Graves  came  to  California  in  1878,  and 
located  at  San  Francisco.  He  has  since  been 
engaged  in  the  practice  of  his  profession. 

In  1882  he  was  married  to  Maude,  only 
child  of  Jefferson  G.  James,  a  California 
pioneer,  and  is  the  father  of  three  boys,  whose 
names  are.  Jefferson  James,  Walker  Coleman, 
and  Rector  Chiles. . 

In  1888  he  was  appointed  special  assistant 
district  attorney,  and  as  such,  he  had  charge 
of  many  important  cases  involving  jury  brib- 
ery, embezzlement  of  public  funds,  violation  of 
election  laws.  etc.  In  nearly  all  of  these  he 
secured  convictions.  In  many  instances  the 
defendants  were  men  of  wealth  and  of  strong 
social    and    political    influence,    and    they   were 


Wm  D.  Gould 


History  of  the  Bench  and  Bar  of  California. 


853 


defended  by  the  ablest  criminal  lawyers  in  the 
State.  Of  the  numerous  appeals  in  cases  tried 
by  him,  he  was  successful  in  all  except  one, 
and  the  reversal  in  that  case  was  secured 
on   purely  jurisdictional   grounds. 

In  1890  ^Ir.  Graves  was  nominated  for  the 
office  of  attorney-general  by  the  Democratic 
party  but  went  down  in  the  general  cataclysm 
that  overtook  his  party  in  that  year. 

Since  leaving  the  district  attorney's  c-ffice 
Mr.  Graves  has  confined  himself  almost  en- 
tirely to  civil  cases.  He  has  been  connei'ted 
with  some  of  the  most  important  land  and 
water  suits  in  the  State. 

He  is  past  worshipful  master  of  Pacific 
Lodge,  No.  136,  of  Free  and  Accepted  Ma- 
sons, and  is  past  grand  chancellor  of  the  order 
of  Knights  of  Pythias.  He  is  present  su- 
preme representative  of  the  last  named  order, 
and  has  served  a  term  in  the  grand  tribunal. 


WILL  D.   GOULD. 

Will  Daniel  Gould  was  born  September  17. 
1845,  in  Cabot,  Vermont.  He  attended  the 
common  and  high  schools  of  his  native  town, 
the  academy  at  St.  Johnsbury  and  Barre,  and 
was  elected  and  served  as  superintendent  of 
schools  in  Cabot  the  year  he  attained  his  ma- 
jority. He  was  principal  of  the  graded  schools 
at  Marshfield,  Passumpsic  and  Plainfield.  In 
1871  he  was  graduated  from  the  University  of 
Michigan,  and  was  immediately  admitted  to 
the  bar  at  Montpelier,  Vermont.  The  follow- 
ing year  he  removed  to  Los  Angeles,  Califor- 
nia, where  he  has  since  been  successfully  en- 
gaged in  the  active  practice  of  his  profession. 


J.  A.  GRAVES. 

J.  A.  Graves  was  born  in  the  state  of  Iowa, 
December  5,  1852,  his  parents  being  natives 
of  Kentucky.  He  came  to  California  in  1857, 
when  barely  five  years  of  age.  He  lived  his 
early  life  on  a  ranch  near  Marysville,  in  Yuba 
county,  and  later  in  San  Mateo  county,  and 
attended  the  San  Franci.sco  High  School.  He 
then  went  to  St.  Mary's  College,  San  Fran- 
cisco,   and    graduated    there    as    an    A.    M.    in 

He  then  began  'lie  study  of  law  in  the  office 
of  Eastman  &  Neumami,  in  San  Francisco.  He 
removed  to  Los  Angeles  in  1875,  entering  the 
office  of  Brunson  &  Eastman  as  a  clerk  and 
student.  Jn  January,  1876,  he  was  admitted 
to  practice  by  the  Supreme  Court  of  the  State, 
and  immediately  became  a  partner  of  his  late 
emplo3'ers,  the  firm  being  Brunson,  Eastman 
&  Graves.  It  enjoyed  a  very  large  share  of 
the  practice  of  Los  Angeles  city  and  vicinity 
during  its  existence.  The  firm  was  dissolved 
in  1878.  and  Mr.  Graves  was  alone  until  Jan- 
uary, 1880,  when  he  formed  a  partnership  with 
J.  S.  Chapman,  as  (iraves  &  Chapman.  This 
firm  immediately  took  liigh  rank  at  the  Los 
.■\ngeles  bar.  On  January  i,  1885,  Judge 
Chapman  was  joined  l)y  his  brotlier-in-l.iw. 
Judge  Ilendrick,  of  Lassen  county,  and  Gr.ives 
&   Chapman   dissolved. 


Mr.  Graves  then  took  Mr.  H.  W.  O'Mel- 
veny  into  partnership,  under  the  name  of 
Graves  &  O'Melveny.  The  latter  gentleman 
IS  a  son  of  the  Hon.  H.  K.  S.  O'Melveny 
now  deceased.  He  is  a  graduate  of  the  State 
Lmversity,  and  at  that  time  was  a  deputy 
district  attorney  of  Los  Angeles  county  un- 
der Stephen  M.  White.  In  1888  Mr.  J.  ]-I. 
Shankland,  for  ten  years  prior  thereto  the 
ciltorney  for  the  San  Francisco  Board  of 
1  rade,  became  a  member  of  the  firm. 

Graves,  O'Melveny  &  Shankland  have  been 
extremely  successful.  'i'hey  enjoy  the  full 
confidence  of  the  community  and  represent  a 
large  number  of  local  banks  and  many  of  the 
wealthy  and  important  corporations  of  South- 
ern California,  besides  having  a  large  per- 
sonal  clientage. 

Besides  attending  to  his  law  practice,  ]\Ir. 
Graves  is  a  successful  orange  grower,  and  is 
extensively  interested  in  the  oil  industry.  He 
and  Mr.  O'Melveny  have  been  associated  to- 
gether for  sixteen  years— longer  than  any 
other  two  members  of  the  Los  Angeles  bar. 
Mr.  Graves  has  had  his  office  in  the  Baker 
Block   since   December   i,   1878, 


GILES  H.   GRAY. 


Giles  H.  Gray,  whose  appearance  would  in- 
dicate that  he  was  still  on  the  sunnv  side  of 
life,  and  whom  nobody  looks  upon  as  an  old 
man,  has  been  at  the  San  Francisco  bar  for 
nearly  fifty  years.  He  was  practicing  alone 
in  the  middle  fifties,  then  was  in  partnership 
for  a  few  years  with  C.  V.  Gillespie.  In  1864- 
65  he  was  associated  with  E.  B.  Mastick 
(Ma.stick  &  Gray).  For  twenty  years  (1870- 
1890)  he  was  in  partnership  with  James  M 
Haven  (Gray  &  Haven).  When  this  firm 
was  dis.solved  the  two  gentlemen  continued 
to  occupy  adjoining  offices,  and  are  at  least 
socially  together  today,  with  elegant  rooms 
in  the  v^laus  Spreckels  Building. 

Mr.  Gray  was  a  member  of  the  San  Fran- 
cisco board  of  supervisors  in  1863,  of  the 
board  of  education  in  1864-65,  and  of  the  as- 
sembly at  the  session  of  1871-72.  when  he 
was  chairman  of  the  committee  on  corpora- 
tions. From  1873  to  1877  he  was  surveyor 
of  the  port  of  San  Francisco,  by  appointment 
of  President  Grant.  Mr.  Grav  removed  his 
residence  to  Oakland  in  1873.  He  is  a  man  of 
large  fortune.  He  registered  as  a  voter  on 
May  22.  1869,  as  being  a  native  of  \\-w  Wnk. 
and  then  aged  thirty-five  years. 

Nathaniel  Gray,  father  of  Giles  H..  was 
always  closely  identified  with  religions  and 
philanthropic  work.  He  was  a  zealous  mem- 
ber of  thf  San  Franci.sco  Bible  Society,  ami 
of  the  First  Presbyterian  Church,  from  1854 
until  his  death,  thirty-five  years  later.  l^e 
was  a  member  of  (he  assembly  at  the  session 
of  the  winter  of  1863-64.  Among  his  in.iny 
acts  of  benevolence  was  a  gift  of  $5,000  to 
the  Pacific  Theological  Seminary.  He  was 
born  in  Massachusetts.  July  20.  1808.  and  died 
at  San  Francisco.  .Xpril  24.  1889.  leaving  a 
considerable  estate.     His  wife,  mother  of  Giles 


854 


History  of  the  Bench  and  Bar  of  California. 


H..  died  January  20.  1887.  A  sketch  of  her 
useful  life  may  be  found  in  the  •'Occident"  of 
March  16,  1887. 


R.   S.  GRAY. 

Roscoe  S.  Gray  was  born  on  the  7th  day  of 
April,  1857,  in  Mount  Carroll,  Carroll  county, 
Illinois.  His  great-grandfather,  John  Gray, 
of  Connecticut,  was  a  member  of  the  com- 
mittee of  public  safety  for  King's  district,  in 
the  State  of  New  York,  in  the  early  part  of 
May,  1777,  and  otherwise  rendered  material 
service  in  aid  of  the  American  struggle  for 
independence.  Mr.  Gray  was  admitted  to  the 
Supreme  Court  of  California  on  the  5th  day 
of  August,  1890;  by  the  Circuit  Court  of  the 
United  States  for  the  ninth  judicial  circuit  in 
and  for  the  northern  district  of  California,  on 
the  17th  day  of  March,  1893 ;  and  on  the  same 
date,  by  the  District  Court  of  the  United 
States  for  the  northern  district  of  California; 
and  by  the  United  States  Circuit  Court  of 
Appeals  for  the  ninth  circuit  on  the  3d  day  of 
April,  1893.  He  has  been  in  partnership  with 
Hon.  Charles  N.  Fox,  ex-Justice  of  the  Su- 
preme Court,  since  1892.  This  firm  has  always 
had  a  large  general  practice. 


E.  S.  HALL. 

Mr.  Hall  was  born  in  Virginia,  in  1854. 
His  early  education  was  received  from  private 
tuition,  before  the  public  school  system  was 
established  in  that  state.  Removing  to  Iowa 
in  boyhood,  he  attended  the  public  schools,  the 
Normal  School,  and  Lincoln  Academy.  He 
taught  school  in  Iowa  until  he  came  to  Cali- 
fornia, which  was  in  1875.  Locating  at  Santa 
Barbara,  he  studied  law  in  the  office  of  Judge 
E.  B.  Hall,  who  was  his  uncle. 

In  1879  Mr.  Llall  was  admitted  to  the  bar, 
and  soon  afterwards  removed  to  Ventura,  and 
began  the  practice.  In  1881  he  was  united 
in  marriage  with  Miss  Robertine  B.  Hines. 
daughter  of  Hon.  J.  D.  Hines,  then  Superior 
Julge  of  Ventura  county.  He  was  elected 
district  attorney  in  1882,  and  served  one  term, 
but  declined  to  run  again  for  any  office. 

In  1886.  on  account  of  ill  health,  Mr.  Hall 
gave  up  the  active  practice  of  the  profession, 
taking  up  real  estate  and  insurance  business, 
as  affording  him  more  active  out-door  exer- 
cise. He  is  now  engaged  again  in  the  prac- 
tice of  law,  particularly  as  it  is  related  to  real 
estate,  the  examination  of  titles,  etc.  He  is 
a  member  of,  and  attorney  for,  the  Ventura 
Title    and    Abstract    Company. 


FREDERIC    W.    HALL. 

Frederick  Winslow  Hall  comes  of  old  New 
England  stock,  and  was  born  in  Gorham, 
Maine.  March  20.  i860.  He  fitted  for  college 
at  Gorham  .Academy  and  Kent's  Hill,  and  en- 
tered Bowdoin  College  in  1876,  where  he  grad- 
uated in  1880,  with  first  honors.  Immedi- 
ately after  graduating,  he  came  to  California, 
studied  law  with  Hon.  J.  F.  Wendell,  at  Fair- 


field, Solano  County,  and  later  with  Hon. 
Samuel  G.  Hilborn,  at  Vallejo,  and  was  ad- 
mitted to  the  bar  in  1882.  He  at  once  com- 
menced the  practice  of  law  at  Vallejo,  and 
soon  built  up  a  lucrative  and  substantial  busi- 
ness. In  1887  he  removed  to  San  Francisco, 
where  he  formed  a  partnership  with  his  uncle, 
the  Hon.  Samuel  G.  Hilborn,  since  deceased, 
under  the  firm  name  of  Hilborn  and  Hall. 
This  partnership  continued  until  1895,  when 
Mr.  Hilborn  retired  to  devote  his  entire  time 
to  his  duties  as  a  Member  of  Congress,  since 
which  time  Mr.  Hall  has  been  practicing 
alone. 

Mr.  Hall  is  a  well-read,  careful,  clear- 
headed and  hard-working  attorney.  His  reg- 
ular clientage  is  large  and  valuable.  He  has 
handled  many  important  cases,  and  has  met 
with  eminent  success  in  the  Supreme  Court 
of  this  State  and  of  the  LTnited  States.  He  is 
a  good  business  man,  and  acts  as  business  and 
leeal  adviser  for  several  large  estates.  His 
choice  of  the  legal  profession  was  clearly  no 
mistake.  Like  most  successful  attorneys,  he 
has  made  something  of  a  specialty  of  corpora- 
tion law,  and  nutnbers  among  his  clients 
many  wealthy  corporations.  Honorable  in  his 
dealings,  true  to  his  word,  and  sound  in  his 
advice,  he  retains  the  confidence  of  all  who 
have  dealings  with  him. 

Mr.  Hall  married,  in  1889,  Miss  Maud  E. 
Noyes,  daughter  of  Mr.  Crosbv  S.  Noyes. 
editor  of  the  Washington  (D.  C.)  Star,  and 
has   two   children. 


CHAS.  F.  HANLON. 


Colonel  Chas.  F.  Hanlon  began  his  career 
at  the  bar  when  twenty-one  years  of  age,  in 
San  Francisco,  where  for  many  years  now  his 
name  has  been  one  of  the  most  familiar  to  the 
profession  and  the  public.  He  was  born  in  New 


York  city  January  19,  1856.  He  was  educated 
at  colleges  in  San  Francisco  and  read  law  with 
John  M.  Burnett,  becoming  a  member  of  the 
bar  of  the  State  Supreme  and  Federal  Courts 
at  San  Francisco  in  1877.  He  conducted  busi- 
ness  involving  a   fortune  before   the   Supreme 


^.   H,   H,   Hart 


History  of  the  Bench  and  Bar  of  California. 


^0< 


Court  of  the  United  Stales  at  W'a^liingtun, 
where  he  was  admitted  in  1885.  Twelve  times 
he  has  crossed  the  continent  on  Inismess  be- 
fore the  courts  of  New  York.  Pennsylvania, 
Massachusetts  and  District  of  Columbia.  The 
Donahue  railroad  in  New  York,  the  Kben  D. 
Jordan's  millions  in  Boston,  and  other  large 
interests  were  protected  by  litigations  won  by 
him  in  the  East.  A  man  of  great  ambition 
and  extraordinary  energy  as  well  as  capacity 
for  legal  business,  he  easily  secured  a  large 
following.  For  a  decade  or  more,  he  has  been 
one  of  the  most  conspicuous  and  prosperous 
lawyers  of  the  State.  He  had  the  adjustment 
and  management  of  the  railroad  interests  and 
estate  of  the  late  Colonel  James  Alervyn  Don- 
ahue, whose  father.  Colonel  Peter  r3onahue, 
had  also  intrusted  to  him  a  large  volume  of 
legal  business.  By  the  unfortunate  ventures 
and  speculations  of  James  Mervyn  Donahue, 
his  estate,  when  he  died,  was  so  crippled  that 
creditors  and  legatees  offered  their  claims 
for  ten  cents  on  the  dollar.  In  fi\e  years' 
work,  involving  the  winning  or  settling  on 
his  terms  of  ninety  cases  in  litigation.  Colonel 
Hanlon  turned  over  one  and  three-(|uarters 
millions  to  the  estate;  thus  giving  a  fortune 
to  the  heirs  after  paying  every  creditor  and 
legatee  dollar  for  dollar.  The  court  fixed  his 
fee  at  ninety  thousand  dollars.  He  was  chief 
general  counsel  and  a  director  of  the  San 
Francisco  &  North  Pacific  (Donahue)  Rail- 
road Company  for  many  years.  The  volumes 
of  the  California  reports  show  the  heavy  liti- 
gations won  by  him  for  that  company.  He 
was  the  attorney  for  the  million  dollar  estate 
of  Annie  A.  Pratt,  whose  will  he  broke  in 
Los  Angeles,  after  a  five  months'  jury  trial, 
the  longest  ever  had  in  Southern  California. 
He  was  the  attorney  in  the  million  dollar 
estate  of  the  wealthy  pioneer  jurist  of  Oregon 
and  California,  O.  C.  Pratt.  His  fees  in 
these  estates  are  estimated  at  over  $125,000. 
In  an  interesting  case,  tried  about  1890.  as 
we  remember,  on  an  appeal  which  he  tQok  to 
the  Supreme  Court  for  the  Daily  Ilxauiiiicr. 
whose  attorney  he  was,  that  tribunal  in  seven 
separate  o])inions  by  the  seven  Justices  sus- 
tained his  contention  that  newspaper  reporters, 
in  trials  in  which  the  iu'ws])aper  is  not  a 
parly  are  not  compelled  to  divulge  facts  and 
statements  made  to  them  in  confidence.  There 
is  no  s])ace,  however,  to  even  glance  at  the 
many  interesting  and  important  cases  which 
he  has  carried  to  a  successful  issue.  The  lat- 
est to  challenge  sjiecial  notice  from  the  bar 
and  the  peo])le  is  the  case  of  T.ucy  Hite.  the 
Indian  woman.  Colonel  Ilanlon,  as  her  attor 
ney.  along  with  Van  R.  Paterson.  who  called 
him  in  at  tlie  trial,  made  a  fight  which  attract- 
ed attention  in  the  newsi)apers  in  the  Fast 
as  well  as  in  the  West.  John  R.  Hite.  after 
twenty-six  years  of  recognized  m.'irried  life 
with  Lucy  Hite.  taking  from  her  the  Indian 
mine  which  bore  him  five  millions  in  gold.  \n\\ 
her  aside  and  married  a  white  woman.  I.ncy 
sued  for  divorce,  but  Hite  denied  her  a--  a 
wife,  and  engaged  an  array  of  lawyers  and  .1 
horde  of  detectives,  .nid  tlu'  contest  bitweni 
the  attorneys  at  llic  trial  almost  resulted  in 
bloodshed,  but  the  cnurl  \  indicated  Ijh"\-  as 
the  wife,  giving  her  lu'r  t'ull  riglit  in  Mite's 
millions. 


Colonel  Hanlon  is  one  of  those  lawyers  who, 
although  pressed  with  professional  cares,  yet 
finds  time  to  give  attention  to  matters  of  pub- 
lic concern.  He  has  for  many  years  been  a 
director  of  the. Crocker  "Old  People's  Home," 
and  vice-president  thereof.  He  is  one  of  the 
most  sedulous  guardians  of  the  welfare  of 
that  excellent  institution.  He  delivered  the 
address  at  the  laying  of  its  corner-stone.  Sub- 
sequently, Colonel  Fred  Crocker  in  a  public 
address  delivered  him  the  keys. 

He  was  the  orator  of  the  day  at  various 
celebrations  in  San  Francisco.  He  was  for 
three  years  in  the  ranks  of  the  California 
National  Guard,  was  then  promoted  to  Major 
and  afterwards  to  Colonel  on  General  Di- 
mond's  staff.  He  was  for  four  years  on  the 
staff  of  Governor  Stoneman,  and  was  after- 
wards on   the   staff  of  Governor   Bartlett. 

The  Colonel  is  a  Democrat ;  has  been  pres- 
ident of  various  clubs:  has  been  a  prominent 
member  of  nearly  every  State  convention  of 
his  party  since  1880,  and  also  of  the  State 
central  committee.  He  is  stanchly  anti-boss, 
and  his  influence  .is  always  thrown  in  favor 
of  pure  politics  and  honest  government.  He 
is  a  man  of  clear  thought,  a  strong,  logical 
speaker,  a  tireless  worker  and  student,  and 
a  man  of  clean   life. 


W.  IT.  II.  HAR' 


W.  H.  11.  Hart,  who  was  leading  counsel 
for  the  successful  claimant  to  the  great  es- 
tate of  Thomas  H.  Blythe.  and  atiorncy-gen- 
eral  of  California  for  the  period,  January,  i8yi, 
to  January,  1895,  was  born  in  Yorkshire,  Eng- 
land, January  25,  1848.  The  eye  would  hardly 
turn  thither  in  expectation  of  finding  a  child 
named  after  a  President  of  the  L'nited  States 
(William  Henry  Harrison).  But.  keeping 
him  in  view,  we  shall  see  him  in  the  ranks  i>f 
the  American  army  as  a  boy  soldier,  in  the 
great    conllict    of   the   Civil    War. 

Mr.  Hart's  father  brought  his  family  ii> 
ihis  country  in  May,  1852.  and  settled  in  lib 
nois.  In  April,  1856,  the  son.  a  child  of  eight 
years,  was  stolen  liy  Indians.  \\c  was  recov- 
ered in  the  following  October.  The  family 
removed  to.  Iowa  in  the  spring  of  1857.  where 
the  wife  and  mother  died  a  year  l;iter.  the  f.i- 
(her  following  her  in  April,  1839.  The  bo\ 
supported  himself  by  herding  sheep.  He  at 
tendtd  school  for  (wo  winters  with  a  young 
man  fif(een  years  his  elder,  named  Hinckley. 
When  the  war  broke  out.  the  boy  was  thir- 
teen years  old.  Even  at  (hal  age,  he  was  e\ 
I)er(  in  (he  use  of  fire-arms.  He  went  to 
Cairo.  Illinois,  to  enlist.  I(  was  (he  wiiKer 
of  i86i-()2,  ami  Grant  was  slationeil  (here. 
His  friend  Hinckley  was  now  (here  also,  and 
was  in  (he  confidence  of  the  great  gener.il. 
for  iinpor(an(  services  rendered.  lie  com 
m.inded  a  company  of  priva(e  scou(s.  ^'oung 
Har(  joined  (his  e()mi)any  in  January.  1862, 
He  took  part,  with  his  company,  in  tlu-  Grant 
c.impaigns  of  Donelson,  .Shiloli.  \'icksl)ing  and 
{^ha((anooga.  .■\(  (he  ba((le  -if  Missionary 
Ridge  he  was  in  commaiul  of  Hinckley's  com- 
f)any.    and    while    the    bcrnrr    "f   .m    mipori.ini 


858 


History  of  the  Bench  and  Bar  of  California. 


dispatcli  from  Grant  to  Sherman,  across  a 
country  held  hy  Confederate  forces,  he  was 
three  times  wounded  in  crossing  this  territory 
from  Citico  Creek  to  Slierman's  right,  a  dis- 
tance of  about  two  and  a  half  miles. 

The  young  scout  recovered  from  his  wounds, 
and  returned  home  in  March,  1864.  He  be- 
gan study  at  the  public  school,  but  in  May 
enlisted  in  the  Forty-fourth  Iowa,  as  a  pri- 
vate. He  was  mustered  out  of  the  service 
in  September  following,  and  in  that  fall  acted 
as  a  scout  for  General  Thomas  at  and  around 
Nashville,  took  part  in  the  famous  battle  of 
that  name,  in  December,  1864.  and.  in  Feb- 
ruary. 1865.  enlisted  in  the  One  Hundred 
and  Forty-seventh  Illinois.  He  was  wounded 
again  in  April,  1865.  at  Pulman's  Ferry.  He 
was  finally  mustered  out  in  February,  1866. 

The  young  man's  attention  was  turned  to 
the  law  as  a  profession  in  the  summer  of  1865. 
when  he  was  seventeen,  and  while  he  was 
doing  provost  duty  at  Dawson,  Terrell  county, 
Georgia — where  a  Judge  on  the  bench  had  pre- 
sented him  with  a  copy  of  Blackstone  and  ad- 
vised him  to  read  it,  which  he  continued  until 
he  was  mustered  out.  After  this,  for  two  years, 
he  devoted  himself  to  law,  reading  at  night 
while  attending  the  public  schools  in  the  day. 
He  was  admitted  to  practice  in  the  County 
Courts  of  Iowa,  September,  1868.  and  four 
months  before  he  was  of  age.  in  the  District 
Court  in  Iowa,  in  September,  1869.  and  to 
the  Supreme  Court  of  that  state  in  April. 
1870.  He  was  elected  city  attorney  of  De- 
Witt,  Iowa.  He  acquired  reputation  as  a 
criminal  lawyer,  although  he  has  never  fol- 
lowed that  department  of  the  practice  in  Cali- 
fornia. 

Mr.  Hart  came  to  this  State  in  1873.  and 
began  law  practice  in  San  Francisco.  He  soqn 
became  prominent  in  both  law  and  politics. 
In  1886  he  was  the  Republican  candidate  for 
attorney-general,  receiving  7400  votes  more 
than  his  candidate  for  Governor,  but  was  de- 
feated, with  nearly  all  of  his  ticket.  In  1890 
he  was  again  the  nominee  of  his  party  for  at- 
torney-general, and  was  elected.  He  made  a 
very  "industrious  and  able  attorney-general. 
Since  he  left  that  office  he  has  not  been  in 
public  life,  but  has  been  occupied  with  a  large 
private  law  practice.  Among  the  valuable  es- 
tates in  which  he  has  been  employed  as  at- 
torney since  the  settlement  of  that  of  Thomas 
H.  Blythe.  may  be  mentioned  the  estate  of  L. 
P.  Drexler.  Mr.  Drexler.  an  old  resident  of 
San  Francisco,  died  in  1899.  leaving  property 
of  the  appraised  value  of  nearly  two  millions. 

Thomas  H.  Blythe  was  the  assumed  name  of 
Thomas  H.  Williams,  an  obscure  English- 
man, who  arrived  in  San  Francisco  on  August 
4.  1849.  on  the  ship  Antelope.  Captain  Aysh- 
ford.  from  Liverpool.  His  name  appeared  only 
thrice  in  the  city  directories  down  to  1874. 
and  then  he  did  not  disclose  his  business.  In 
1874-75-76  he  gave  his  occupation  as  that  of  a 
real  estate  dealer.  Then  every  year  for  seven 
vears.  until  his  death,  he  held  forth  as  a 
"capitalist.". with  his  name  in  large  type.  He 
was  a  bachelor  and  a  Mason,  and  a  very  rich 


He  acquired  the  city  building  lots  which 
made  him  a  millionaire — in  the  Gore  block, 
bounded  by  Market  and  Gearj-^  streets  and 
Grant  avenue,  by  two  deeds  from  James 
Findla,  another  pioneer,  who  made  a  large 
fortune  as  a  dealer  in  coal.* 

The  deeds  (we  have  examined  them  on  the 
public  records)  were  both  quit  claims,  the 
first,  of  December  16,  1850,  conveying  lots  36, 
27,  38,  39.  899  and  part  of  900,  for  the  sum  of 
$810;  the  other,  of  January  17,  1851,  convey- 
ing the  southeast  corner  of  Grant  avenue  and 
Geary  street,  275  feet  on  the  avenue,  and  125 
on   the   street,   for  $1400. 

Blythe  was  never  known  outside  of  a  nar- 
row circle,  and  led  a  quiet  life  in  San  Fran- 
cisco for  thirty-four  years.  His  legal  adviser 
was  Henry  H.  Haight  (who  came  to  be  Gov- 
ernor of  the  State,  1868-71),  until  the  latter's 
death,  when  he  took  counsel  in  his  business 
affairs,  among  others  of  General  W.  H.  H. 
Hart. 

Blythe  died  suddenly  at  San  Francisco,  on 
April  4.  1883. 

"It  is  probable,"  said  an  editor,  "that  had 
Blythe  lived  ten  years  longer  he  would  have 
been  bankrupt.  He  liad  bought  a  large  estate 
in  Mexico,  and  his  plan  was  to  return  to  Mex- 
ico as  the  lord  of  a  vast  estate.  It  was  the 
English  idea.  Blythe  would  figure  in  the  New 
World  as  he  could  not  in  the  old.  He  would 
have  large  numbers  of  dependents,  and  would 
in  time  match  his  new  possessions,  for  their 
extent,  against  those  of  the  richest  landlord 
in  Great  Britain.  Blj'the's  vision  of  terri- 
torial magnificence,  of  hundreds  of  retainers, 
of  a  vast  estate,  over  which  he  would  exer- 
cise something  akin  to  feudal  authority,  was 
extinguished  by  his  death.  The  millionaire 
lay  down  one  day  in  his  rooms,  gasped  a  few 
times,  and  was  gone." 

No  will  was  ever  found.  His  attorney, 
General  Hart.  had.  at  his  request,  made  a 
rough  draft  of  a  will,  in  which,  among  other 
legacies,  was  one  of  $10,000  to  the  General. 
This  paper  was  not  discovered  afterwards. 
Blythe  was  buried,  with  the  rites  of  the  Ma- 
sonic order.  General  Hart  had  learned  from 
Blythe  of  the  existence  in  England  of  a  child, 
and  he  arranged  to  bring  Florence  Blythe  to 
San  Francisco  to  take  her  place  upon  the 
stage  of  a  lon^  drama.  Florence  was  born 
in  December,  1873,  and  was  not  ten  years  old. 
The  San  Francisco  estate  left  by  Blythe  com- 
prised entirely  of  the  land  before  specified, 
and  improvements,  was  worth  not  less  than 
$2,000,000.  It  largely  increased  in  value  before 
final  distribution. 

The  right  of  the  child  to  the  estate  was 
contested  by  a  large  number  of  claimants, 
coming  from  all  parts  of  the  world.  The 
great  controversy  fell  to  Judge  Coffey's  de- 
partment of  the  Superior  Court.  Several  years 
were  passed  in  the  examination  of  the  various 
pretensions,    and    in    due    time    Florence,    by 


*  See  the  strange  case  of  Findla  vs.  San  Francisco 
(13  Cat.  534).  and  Middleton  vs.  Findla  (25  Cal.  76). 


History  of  the  Bench  and  Bar  of  California. 


b5y 


guardian,  with  General  W.  H.  H.  Hart  as 
attorney,  associated  with  McAllister  &  Ber- 
gin,  brought  an  action  before  Judge  Coffey, 
under  section  1664  of  the  Code  of  Civil  Pro- 
cedure, to  determine  the  heirship  and  title  to 
the  estate,  which  section  provides  that  in  all 
estates  now  being  administered,  or  that  may 
hereafter  be  administered,  any  person  claim- 
ing to  be  heir  to  the  deceased,  or  entitled  to 
distribution  in  whole  or  in  any  part  of  such 
estate,  may  at  any  time  after  the  expiration 
of  one  year  from  the  issuing  of  letters  testa- 
mentary or  of  administration  upon  such  es- 
tate, file  a  petition  in  the  matter  of  such  es- 
tate, praying  the  court  to  ascertain  and  de- 
clare the  rights  of  all  persons  to  said  estate 
and  all  interests  therein  and  to  whom  distri- 
bution thereof  should  be  made.  All  the  other 
claimants  made  answer,  traversing  the  pre- 
tensions of  plaintiff  to  be  the  child  and  heir 
of  deceased,  and  alleging  that  she  was  the 
offspring  of  one  Joseph  James  Ashcroft  and 
his  wife,  Julia  Ashcroft,  nee  Perry,  and  by 
way  of  cross-complaint,  averring  respectively 
their  own  claims  to  heirship,  ownership  or 
interest  in  the  estate. 

The  trial  of  the  issues  thus  joined  be- 
tween the  parties  litigant  began  on  the  15th 
of  July,  1889,  before  the  court,  without  a  jury, 
an  express  waiver  of  a  jury  having  been  made 
in  open  court. 

The  trial  of  this  action  before  Judge  Coffey 
occupied  a  full  year,  beginning  on  the  iSth 
of  July,  1889.  There  were  208  witnesses  ex- 
amined, and  dcpositons  read  of  139  other  per- 
sons. The  argument  of  the  case  was  opened 
on  the  loth  of  April,  1890,  and  the  counsel 
who  participated  were:  For  the  plaintiff, 
the  child  Florence,  W.  H.  H.  Hart,  W.  W. 
Foote,  and  John  H.  Boalt ;  for  the  Williams 
heirs  of  Liverpool,  E.  R.  Taylor,  W.  S.  Good- 
fellow  ;  for  James  DeWitt  Pearce,  Ramon 
E.  Wilson;  for  the  Blythe  Company,  H.  P. 
McKoon  and  G.  W.  Towle;  for  the  Gipsey 
Blythes,  E.  Burke  Holladay  and  S.  W.  Hol- 
laday ;  for  the  London  Savages,  L.  E.  Bulke- 
ley ;  for  William  and  David  Savage,  M.  Wald- 
hcimer  and  T.  J.  Lyons;  for  Alice  Edith,  the 
alleged  widow.  E.  D.  Wheeler  and  Henry  "E. 
Highton.  Selden  S.  and  George  T.  Wright 
submitted  the  claim  of  the  Scotch-Irish  Sav- 
ages without  argument. 

Judge  Coffey  decided  the  case  in  favor  of 
Florence  on  the  31st  of  July,  1890.  (In  this 
connection,  the  reader  is  referred  to  the 
sketch  of  Hon.  James  V.  Coffey.)  Some 
thirty  appeals  followed  to  the  Stale  Sui)reme 
Court,  four  of  which  went  to  the  Sui)renic 
Court  of  the  United  States.  For  another  long 
period  General  Hart's  resources  of  mind,  as 
well  as  his  physical  stamina,  were  severely 
taxed,  as  he  was  compelled,  as  the  princii)al 
counsel  for  the  plaintiff,  to  give  his  tun-e- 
mitting attention  to  allof  these  appeals.  He 
argued  them  in  the  State  Supreme  Court,  and 
at  Washington. 

His  reward  came  when  tlie  Stale  Supreme 
Court  affirmed  Judge  Coffey's  decision  on 
November  30,  1892.  There  were  further  de- 
lays,   but    the    public    administrator,    wlm    liad 


charge  of  the  estate  from  the  beginning,  finally 
placed  Florence  in  possession  on  the  4th  of 
December,  1895.  In  that  month  the  girl  of 
ten  summers  in  1883,  had  become  twenty-one 
years  of  age,  and  was  the  wife  of  Frederic 
W.  Hinckley,  a  worthy  young  man,  a  native 
of  San  Francisco,  the  son  of  Daniel  B.  Hinck- 
ley of  the  Fulton  Iron   Works. 

When  Mrs.  Hinckley,  with  her  tried  and 
trusty  counsel  by  her  side,  was  placed  in  pos- 
session of  the  block  of  land  in  the  very  center 
of  the  great  city,  the  property  was  worth 
at  a  conservative  estimate,  $2,500,000,  and 
yielded  a  rental  of  $12,000  a  month. 

It  was  not  until  some  years  after  this,  how- 
ever, that  Mrs.  Hinckley's  title  was  finally 
settled.  General  Hart's  last  call  to  Washing- 
ton in  the  case  was  in  March  and  April,  1897. 
The  matter  then  under  consideration  was  a 
writ  of  error  asked  by  the  Gypsy  or  Ken- 
tucky Blythes.  The  attorneys  for  the  latter 
made  the  point  that  Florence  Blythe,  having 
been  born  in  England,  and  not  having  come 
into  the  United  States  before  the  death  of  her 
father,  was  an  alien,  and  being  an  alien,  she 
could  not  inherit  the  property  in  the  State  of 
California  without  there  being  a  provision  in 
the  treaty  between  Great  Britain  and  the 
United  States  permitting  her  to  do  so.  In 
other  words,  Jefferson  Chandler  claimed  that 
an  alien  can  only  inherit  when  a  treaty  ex- 
pressly permits  it,  and  that  the  states  have 
no  authority,  by  reason  of  their  sovereignty, 
to  pass  any  law  allowing  aliens  to  inherit 
unless  permitted  to  do  so  by  treaty.  The 
L^nited  States  Supreme  Court  sustained  Gen- 
eral Hart's  contention  and  denied  that  of  Mr. 
Chandler.  (Blythe  vs.  Hinckley,  167  U.  S. 
746;  Blythe  Co.  vs.  Blythe,  172  U.  S.  644; 
Blythe  vs.  Hinckley.  173  U.  S.  501.  )  There 
is  one  case  still  pending  in  the  L^nited  States 
Supreme   Court. 

Mrs.  Florence  Blythe-Hincklcy  arranged  to 
settle  all  claims  presented  against  her  by  at- 
torneys and  others  who  were  instrumental  in 
eslablishing  her  rights  as  sole  heiress  of  the 
late  Tiiomas  H.  Blythe  by  Inlying  from  them 
their  part  of  the  Blythe  lilock  and  making 
cash  payment.  General  Hart  retaining  one- 
eighth  interest  in  the  Mexican  and  lands  out- 
side of  San  Franci.sco,  which  makes  his  fee 
■  one  of  the  largest,  if  not  the  largest,  ever  paid 
in  this  country. 

The  value  of  the  whole  block  was  esti- 
mated, in  round  figures,  to  be  $2,500,000.  Mrs. 
Hinckley  retained  $1,500,000  worth  of  prop- 
erty and  $1,000,000  went  to  the  people  tliat 
fought  for  her  cause.  L'nder  the  private  agree- 
ment existing  l)etween  themselves,  the  attor- 
iievs  and  f)lhers  tli.it  assisted  her,  received  the 
following  sums:  W.  W.  Foote  and  Garher, 
I'xi.ilt  1*1-  Bishop.  $200,000:  Thomas  I.  Bergin, 
$75,000:  the  estate  of  Mrs.  Hall  Mc.MlisIer, 
$112,500:  W.  H.  H.  Hart.  $325,000,  and  one- 
lighlh  of  all  property  other  than  the  Blvflic 
l.I.  ok. 

Geiural  ll.ut  is  largely  interested  in  mining, 
and  in  the  recent  oil  discoveries  in  Central 
California.  He  is  well  versed  in  metallurgy 
.-md  lias  l;irge  experience  in  mining  litigation. 


860 


History  of  the  Bench  and  Bar  of  California. 


|l 


and  is  devoting  almost  his  entire  time  to  min- 
ing and  probate  law.  and  is  attorney  for  sev- 
eral corporations. 

HORACE  M.   HASTINGS. 

Horace  M.  Hastings,  who  was  city  and 
county  attorney  of  San  Francisco  in  1867-68. 
was  Jjorn  in  New  York  in  1836.  He  was 
graduated  from  Union  College  and  the  Albany 
Law  School,  and  was  adinitted  to  the  bar  at 
Albany.  New  York,  in  December,  i860.  He 
located  in  San  Francisco  in  March.  1861.  He 
removed  from  the  State  in  the  fall  of  1871, 
and  has  since  been  assistant  district  attorney 
in  New  York  City,  and  an  assistant  in  the 
United  States  attorney-general's  oflfice  at 
Washington,  D.  C.  He  was  living  in  New- 
Jersey  as  late  as  1893. 

A.  (;.   HINCKLEY. 

Acliil])hus  G.  Hinckley  was  born  July  29. 
1856.  in  Richfield.  Adams  county,  Illinois.  As 
a  part  of  his  business  education,  at  the  age  of 
thirteen,  he  commenced  paying  his  own  ex- 
penses by  service  as  a  shorthand  writer.  He 
read  law  in  the  offices  of  \\'heat.  Ewing  & 
Hamilton  in  Quincy.    Illinois,   Hnn.   Emory  A. 


Storrs  of  Cliicago.  llun.  Jdhii  K.  Cowan  nf 
Baltimore,  and  Hon.  Henry  C.  Baldwin  of 
Connecticut ;  and  commenced  practicing  before 
justices  at  the  age  of  eighteen.  His  work 
gave  him  intimate  relations  with  some  of  the 
most  eminent  men  of  the  country,  the  benefit 
of  whose  methods  and  example  have  been 
of  inestimable  value  to  him. 

He  was  admitted  to  practice  before  the  Su- 
l)reme  Court  of  Illinois,  and  followed  his 
])rofessipn  in  Chicago  and  Topeka.  Kansas, 
until  lie  removed  to  Los  .Xngeles.  California, 
in  .'\pril.  1883.  where  he  has  since  resided  and 
practiced    law. 

Mr.  Hinckley  is  descended  from  the  sturdy, 
self-reliant,  independent  type  of  men  who  have 
been  leaders  in  the  world's  history.  Among 
the  nobles  whf)  wrested  from  King  John  the 
Magna  Charta  was  Baron  Hinckley,  whose 
crest  and  coat  of  arms  are  still  preserved  in 
the  family,  later  Samuel  Hinckley  left  Kent, 
and  landed  on   Plymouth   Rock  in    1635.  when 


.America  was  a  wilderness  of  wild  beasts  and 
savages  •  and  his  son  Thomas  Hinckley  was 
the  last  Governor  of  the  Plymouth  Colony 
before  it  was  consolidated  with  the  Massa- 
chusetts Colony;  Elkana  Hinckley  fought  in 
the  Revolution,  with  his  father,  and  his  son 
Thomas  Gage  Hinckley  was  in  the  War  of 
1812.  and  in  the  War  with  Mexico:  and  his 
son,  Jesse  Clinton  Hinckley,  and  another  son, 
Record  W.  Hinckley,  with  the  latter's  three 
eldest  sons,  were  in  the  Civil  War  as  Union 
soliders. 

Besides  being  renresented  in  every  war  that 
this  country  has  ever  had.  the  ancestors  of  Mr. 
Hinckley  have  been  among  the  pioneers  who 
blazed  the  pathway  of  civilization  in  its  march 
westward.  His  father.  Record  W.  Hinckley, 
originated  the  policy  of  giving  alternate  sec- 
tions to  build  railroads  through  the  West  to 
the  vast  territory  acquired  in  the  Mexican 
War.  and  finally,  in  1849.  ^^y  petition  to  con- 
gress, coupled  with  the  gold  excitement  in 
California,  his  idea  became  the  law  of  the 
land,  and  led  to  the  rapid  development  of  the 
great   West. 

Mr.  Hinckley  is  clear.  i)rompt  and  pleasant 
in  his  dealings,  exact  and  honorable.  His 
(|uickness  of  perception  and  fertility  of  re- 
source afford  him  advantages  in  argument,  and 
contribute  to  his  success  in  negotiation.  He 
has  a  warm,  sympathetic  nature,  ever  ready 
to  help  the  unfortunate,  and  much  of  his  most 
arduous  labor  has  been  for  those  whose  only 
means   of   payment   was   gratitude. 

.Although  Mr.  Hinckley's  business  experience 
has  covered  so  many  years,  the  fre.shness  of 
youth  is  still  upon  him.  He  is  a  genial  com- 
panion, a  true  friend,  and  a  man  who  can  be 
(le])cn(leil    u])on    in    all    things. 

JAMES  M.  HAVEN. 

James  M.  Haven,  a  prominent  and  success-' 
tul  lawyer  of  San  Francisco,  was  born  in  New 
^'ork.  November  9.  1827.  He  was  admitted 
to  the  l)ar  at  Downieville.  Sierra  county.  Cali- 
fornia, in  1863.  where  he  was  deputy  prov(xst 
marshal  and  deputy  collector  of  internal  reve- 
nue, in  1862-64.  He  was  suiJerintendenl  of 
schools  of  Sierra  county  in  1864-63.  and  dis- 
trict atlftrney  in  1866-67.  He  arrived  in  the 
State  on  March  26.  1850.  and  .spent  several 
years  in  mining  before  entering  on  law  prac- 
tice. He  has  been  at  the  l)ar  in  San  Fran- 
cisco since  1868.  For  a  long  period  he  was 
associated  with  Hon.  Giles  H.  Gray,  but  for 
many  years  now  has  been  in  ])artnership  with 
his  son.  Thomas  E.  Haven.  He  is  a  safe  ad- 
viser, a  careful  practitioner,  a  moral  and  re- 
ligious man,  being  an  active  member  of  the 
Congregational  Church,  and  is  held  in  general 
regard.  He  has  made  his  home  in  Oakland 
since    1876. 

IIOR.ACE  HA  WES. 

Horace  llawes.  not  the  i)i(ineer  lawyer  many 
I  inns  referred  to  in  these  pages,  but  the  au- 
thor of  two  l)ooks  in  the  Pony  Series,  on  Par- 
lies to  .Actions  and  Jnri'-diotinn  of  Courts,  pub- 


Will  A.  Harris 


History  of  the  Bench  and  Bar  of  California. 


863 


lislied,  respectively,  in  1884  and  i88b,  was  born 
in  VVrcntham,  Massachusetts,  completed  his 
literary  course  in  the  Boston  University,  and 
graduating  from  the  law  school  of  that  uni- 
versity, was  admitted,  to  the  bar  by  the  Su- 
preme Court  of  Massachusetts. 

He  came  to  California  in  1871,  and  was  en- 
gaged for  a  year  in  commercial  business  at 
Santa  Cruz.  Then  returning  to  Boston,  he  en- 
tered upon  professional  work  in  the  office  of 
the   law   firm  of   Russell  &   Sutcr. 

In  1875  he  came  back  to  California,  and  was 
in  practice  in  San  Francisco,  associated  in  bus- 
iness for  five  years  with  ex-Congressman  P.  D. 
Wigginton.  He  then  removed  to  Fresno,  and 
is   still   in  large  practice  there. 


was  being  carried  rapidly  out  to  sea,  before  the 
eyes  of  iiis  father  and  sister. 

Mr.  Harris  is  a  man  of  family.  His  wife 
was  Miss  Nettie  Allen,  a  young  lady  from 
Ohio,  whom  he  married  at  .San  Bernardino. 


WILL  A.  HARRIS. 


This  gentleman,  who  enjoys  great  popularity 
in  Southern  California,  and  a  high  reputa- 
tion at  the  bar,  is  a  native  of  Tennessee,  and 
was  born  in  1850.  He  is  descended  from  an 
American  family  of  the  era  of  the  Revolution. 
His  father,  A.  G.  Harris,  was  in  the  Confed- 
erate Army,  enlisting  as  a  lieutenant,  and  be- 
coming a  colonel  of  his  regiment. 

Mr.  Harris  was  educated  at  the  Cumber- 
land University,  at  Lebanon,  Tennessee.  Hav- 
ing prepared  himself  for  the  bar  and  been  ad- 
mitted to  practice  by  the  Supreme  Court,  he 
followed  the  profession  at  different  places  in 
his  native  state,  but  for  the  greater  part  of  the 
time  at  Memphis,  down  to  1875.  In  that  year 
he  came  to  California,  and  located  at  San 
Bernardino.  His  name  soon  became  familiar 
to  the  bar  and  people  of  the  southern  counties. 
he  built  up  a  large  and  general  practice.  He 
had  been  in  his  new  home  only  two  years 
when,  in  1877,  he  was  elected  district  attorney, 
and    served    one    term. 

Mr.  Harris  remained  at  San  Bernardino  for 
the  considerable  period  of  eighteen  years. 
Then,  in  1893,  he  was  impelled  to  seek  a 
larger  field.  He  removed  to  Los  Angeles,  and 
through  the  years  since  passed  he  has  been 
in  the  most  active  and  profitable  practice,  and 
in  the  front  rank  of  the  able  bar  of  that  place. 
His  business  is  of  all  departments.  He  is  cel- 
ebrated for  his  skill  and  ability  in  criminal 
cases,  while  among  his  clients  also  are  bank- 
ing  and    other    corporations. 

In  politics,  Mr.  Harris  was  a  Democrat  un- 
til the  year  1896,  when  he  became  a  Repub- 
lican because  unable  to  accept  the  principles 
of  the  Democratic  platform,  adopted  at  Chi- 
cago in  that  year.  He  took  the  platform  in 
that  campaign,  and  made  many  speeches,  prin- 
cipally on   the  money  question. 

Mr.  Harris  is  a  typical  Southerner,  and 
a  picturesque  character.  Of  fine  face  and  ex- 
cellent address,  with  much  kindness  of  heart 
and  courage  of  a  high  quality,  he  couKl  com- 
mand success  among  any  people  whose  lan- 
guage he  could  speak. 

He  wears  the  "Life-saving  Gold  Medal." 
presented  to  him  by  the  government,  for  great 
daring  in  phmging  into  the  surf  near  San 
Diego,  and  bringing  to  land  a  young  man  who 


NICOLAS   A.    HAWKINS. 

Mr.  Hawkins  was  born  in  Crawford  county, 
Missouri,  May  31,  1856.  His  parents  were 
natives  of  Lexington,  Ky.  By  them  he  was 
brought  to  California  in  i860,  and  they'  set- 
tled in  the  Santa  Clara  valley,  where  his 
brothers  and  sisters  still  reside,  most  of  them 
at  Hollister.  Mr.  Hawkins  received  a  liberal 
education,  after  which  he  studied  law  and 
was  graduated  from  the  Albany  Law  School 
in  1879.  He  located  at  Hollister.  He  was 
district  attorney  of  San  Benito  county  for  two 
terms.  In  1887  he  removed  to  Woodland, 
where  he  has  since  practiced.  He  was  suc- 
cessful at  Hollister.  but  gave  up  a  good  prac- 
tice because  the  climate  was  too  changeable, 
and  upon  the  advice  of  physicians,  he  sought 
a  warmer  nlace.  He  has  been  fortunate  in 
his  present  location  in  many  ways,  for  he 
n  )t  only  has  a  good  business,  but  enjoys  per- 
fect health.  His  practice  is  altogether  civil, 
and  the  most  important  matters  are  placed 
completely  in  his  charge.  The  people  of 
means  take  him  their  business,  and  it  has 
been  his  good  fortune  seldom  ever  to  lose 
a  case.  He  is  accounted  a  very  safe  adviser. 
Almost  any  one  who  has  had  business  in 
Woodland  can  testify  to  this.  He  tries  a  case 
fairly  well,  but  it  is  in  office  work  and  the 
preparation  of  cases  that  he  excels,  and  stands 
out  as  master  of  the  situation. 

Mr.  Hawkins  is  married  and  has  two  boys, 
aged  fifteen  and  twenty  years. 


BENJAMIN  HEALEY. 

Benjamin  Healey,  a  very  capable  and  well- 
known  lawyer,  has  been  at  the  San  Francisco 
bar  since  1885.  He  located  in  that  city  in 
1874.  coming  from  Cariboo,  where  he  had  been 
engaged  in  mining  for  some  years.  He  has 
raised  a  large  family  and  acquired  a  comfort- 
able estate.  His  special  line  of  business  is  pro- 
bate. He  is  a  strongly  built  man.  in  the  prime 
of  life,  keeps  at  work  early  and  late,  and  dis- 
patches an  enormous  amount  of  business.  He 
has  never  had  a  law  partner.  He  possesses  the 
most  generous  and  fraternal  nature,  and  multi- 
ttides  rejoice  at  his  long  prosperity.  .Some  of 
his  children  are  grown.  He  owns  a  fine  home 
on  Green  street  hill,  overlooking  the  bay  and 
ocean. 

LYNN   HELM. 

Lynn  Helm  was  born  in  Chicago.  Illinois, 
in  1857.  He  is  the  son  of  Stanley  T.  Helm,  a 
lawyer  who  has  practiced  at  the  Chicago  bar 
since   18^4. 

Lynn  Helm  was  educated  at  Princeton  Col- 
lege in  the  class  of  '79.  After  graduation  he 
studied  law  with  his  father,  and  afterwards 
practiced  law  with  his  father  as  the  firm  of 
.S.   T.  S:  L.   Helm,   in   Chicago,   until   he  came 


864 


History  of  the  Bench  and  Bar  of  California. 


to  California.  While  in  Chicago  he  was  em- 
ployed in  some  imporlanl  litigation  as  to  spe- 
cial assessment,  and  condemnation  cases,  and 
also  in  the  trial  of  damage  suits. 

Mr.  Helm  came  to  California  in  April.  1896. 
and  since  then  has  practiced  in  Los  Angeles. 
He  has  there  been  engaged  in  litigation  in- 
volving a  great  deal  of  varied  interests.  He 
was  acting  for  the  plaintiffs  in  the  case  of 
Garwood  vs.  West  Los  Angeles  Water  Com- 
pany, and  in  Palm  vs.  Denver  &  Rio  Grande 
RaiJroad  Company.  In  the  last  case,  a  datnage 
suit,  he  secured  a  verdict  for  his  client  of 
$13,000,  which  was  ultimately  affirmed  by  the 
United   States   Circuit   Court   of  Appeals. 

Mr.  Helm  was  married,  in  1888,  to  Miss 
Annie  Horlock,  in  Chicago.  His  family  con- 
sists of  his  wife  and  three  children.  He  is  a 
member  of  the  California  Club,  and  is  a  mem- 
ber and  treasurer  of  the  First  Presbyterian 
Church  of  Los  Angeles. 


E.  W.  HENDRICK. 

E.  W.  Hendrick  was  born  in  Pike  county, 
Missouri,  and  resided  there  until  the  age  of 
fourteen,  when  the  desire  to  see  the  world,  so 
common  to  the  American  youth,  led  him  to 
leave  home  and  try  his  fortune  in  the  far 
West.  He  spent  three  years  in  Colorado, 
Oregon,  and  California,  and  finally  concluded 
to  obtain  a  university  education.  He  devoted 
to  study  six  years  in  Rhode  Is'and,  and  grad- 


uated at  Brown  University  with  high  honors. 
After  graduation  he  spent  fourteen  months 
in  Europe  in  travel  and  study,  whence  he  re- 
turned a  more  ardent  American  than  ever. 
He  came  again  to  California,  and  after  being 
admitted  to  the  bar.  opened  an  office  in  San 
Diego  in  1874,  since  which  time  he  has  enjoyed 
a  lucrative  practice.  Mr.  Hendrick  represented 
the  county  of  San  Diego  as  a  member  of  the 
legislature  in  1881.  He  has  been  district  attor- 
ney, and  has  also  occupied  other  local  posi- 
tions of  honor  and  trust,  such  as  city  attorney 
and  attorney  for  the  public  administrator.  He 
is  associated  in  practice  with  Mr.  Leroy  A. 
Wright  (Hendrick  &  Wright),  and  is  one 
of  the  strongest  men  at  the  California  bar. 


BARCLAY  HENLEY. 

This  gentleman,  who  has  been  for  a  long 
period  a  conspicuous  figure  at  the  bar  of  the 
State,  was  born  in  Clark  county,  Indiana, 
March  17,  18^3.  He  came  to  California  at 
the  age  of  ten  years.  His  father.  Thomas  J. 
Henley,  always  a  man  of  commanding  in- 
fiuence  in  the  Democratic  party,  was  a  repre- 
sentative in  congress  from  Indiana  for  four 
consecutive  terrns.  1842-1849.  He  was  a  Cali- 
fornia pioneer,  and  represented  the  Sacra- 
mento district  in  the  assembly  at  the  first  ses- 
sion of  the  legislature.  1849-50.  He  was  after- 
wards commissioner  of  Indian  affairs  under 
the  general  government.  He  sent  his  son, 
Barclay  (he  had  several  sons),  back  to  his 
native  .state,  where  he  was  educated  at  Han- 
over College.  The  son  studied  law  in  San 
Francisco,  and  was  admitted  to  the  bar  of  the 
State    Supreme    Court    in    1864. 

Barclay  Henley  began  his  distinguished  pro- 
fessional career  in  Sonoma  county,  where  he 
maintained  his  residence  for  many  years.  He 
represented  that  county  in  the  assembly  at  the 
eighteenth  session,  the  winter  of  1869-70.  The 
legislature  was  Demacratic  in  both  branches. 
Mr.  Henley  was  chairman  of  the  house  com- 
mittee on  federal  relations,  and  offered  the  res- 
olution rejecting  the  fifteenth  amendment  to 
the  federal  constitution.  In  1875-76  he  wa.>^ 
district  attorney  of  his  county.  In  the  Tilden- 
Hayes  contest  of  1876  he  was  nominated  a 
Presidential  elector  on  the  Democratic  ticket. 
In  1880  he  was  again  nominated  for  that  of- 
fice, and  was  elected.  In  November,  1882,  he 
was  elected  a  representative  in  the  forty-eighth 
congress,  and  was  continued  in  the  forty-ninth 
congress,  his  period  in  the  national  house  of 
representatives  being  from  March  4,  188^.  to 
March  4,  1887.  In  both  State  and  federal 
legislatures  he  won  general  applause  for  his 
industry,  his  strong  common  sense,  and  his 
compass  of  thought  in  di.scussion.  These  are 
among  the  qualities  that  have  marked  his  ca- 
reer at  the  bar. 

Mr.  Henley  removed  from  .Santa  Rosa  to 
San  Francisco  in  1888.  and  formed  a  law  part- 
nership with  Charles  J.  Swift  and  William 
Rigby  (Henley.  Swift  &  Rigby).  Mr.  Rigby 
withdrew  after  two  years,  and  Henley  &  Swift 
continued  a  year  longer,  when  Howard  Mac- 
Sherry  took  Mr.  Swift's  place  in  the  firm.  In 
1803  Mr.  Henlev  formed  a  partnership  with 
Mr.  .Stephen  V.  Costello,  the  same  gentle- 
man who  in  1900  was  one  of  the  Democratic 
candidates  for  Superior  Judge.  The  firm  of 
Henley  &  Costello  has  been  a  leadin<T  and 
very  bu.sy  one  ever  since  that  time.  Tn  1896-97 
ex-Judge  R.  R.  Bigelow  of  Reno,  Nevada,  was 
a   member  of  the  firm. 

Mr.  Henley  was  foreman  of  the  celebrated 
"Wallace  grand  jury"  of  .August.  1891.  We 
recall  no  other  instance  where  a  practicing 
attorney  ever  occupied  such  a  position.  For 
sj)ecial  reasons,  and  under  peculiar  circum- 
stances, the  court  felt  the  need  of  the  services 
of  an  able  lawyer  in  that  capacitv.  Hon.  Wil- 
liam T.  Wallace,  then  a  Judge  of  the  Superior 
Court  of  San  Francisco,  holding  that  the 
sheriff   was  disqualified   to  summon  grand  ju- 


ll 


m,  C.  Hassett 


History  of  the  Bench  and  Bar  of  California. 


867 


rors  needed  to  complete  a  panel,  appointed 
Henry  H.  Scott,  Esq.,  as  an  elisor  for  that 
purpose.  In  the  case  of  Elwood  Bruner,  upon 
application  for  a  writ  of  prohibition,  the  Su- 
preme Court  held  the  appointment  of  Scott 
invalid.  The  principal  reason  assigned  by  the 
Supreme  Court  for  its  decision  was  that  no 
affidavit  had  been  presented  to  Judge  Wallace 
to  the  effect  that  the  sheriff  was  disc|ua]ificd. 
It  is  an  interesting  fact  that  the  decision  was 
disapproved  by  three  former  Chief  Justices  of 
that  high  tribunal,  namely,  Judge  Wallace 
himself,  Judge  A.  L.  Rhodes,  and  Judge  John 
Currey.  The  last  named  wrote  an  article  criti- 
cising the  decision  in  excellent  teinper.  and 
this  was  published  at  the  suggestion  of  Judge 
A.  P.  Catlin  of  Sacramento.  Judge  Wallace's 
charge  to  the  "Wallace  grand  jury,"  the  re- 
port of  that  body,  written  by  Mr.  Henley,  after 
the  Supreme  Court  decision  just  mentioned, 
the  address  of  Judge  Wallace  upon  receiving 
the  report,  the  article  of  Judge  Currey,  and 
resolutions  adopted  at  a  public  mass-meeting 
in  San  Francisco,  January  5.  1892,  sustaining 
Judge  Wallace,  are  to  be  found  in  the  libraries, 
printed  and  bound  together  in  neat  pamphlet 
form. 


M.   C.   HASSETT. 


Martin  Carroll  Hassett,  a  resident  of  and 
now  engaged  in  the  practice  of  law  in  San 
Francisco,  was  born  in  county  Tipperary,  Ire- 
land, and  comes  of  a  patriotic  Irish  family, 
being  related  on  his  mother's  side  to  the  dis- 
tinguished Charles  Carroll  of  Carrollton,  Ma- 
ryland, one  of  the  signers  of  the  Declaration 
of  Independence.  He  came  to  this  country 
with  his  parents  when  only  ten  years  of  age. 
The  family  settled  in  northern  New  York.  He 
received  his  early  education  in  the  public 
school  and  the  Keeseville  Academy.  Clinton 
county.  New  York,  and  commenced  his  studies 
of  the  law  at  that  place  with  the  law  firm  of 
Hewitt  &  Watson,  and  completed  them  with 
Judge  Beckwith  &  Sons,  at  Plattsburg,  and 
was  admitted  to  the  Supreme  Court  of  New 
York  in  the  year   i86g. 

Soon  after  his  admission  to  the  bar  he  came 
to  California,  and  entered  upon  his  successful 
career  in  the  practice  of  his  profession  in  the 
city  of  San  Francisco. 

Mr.  Hassett  during  his  many  years  of  prac- 
tice has  justly  earned  the  confidence  and  re- 
spect of  all  who  know  him ;  he  would  disdain 
to  take  an  unfair  advantage  of  an  adversary, 
and  his  word  when  given  is  always  sacredly 
kept.  In  politics  he  is  a  Democrat,  and  though 
never  having  sought  or  held  public  office,  he 
has  been  prominent  for  years  in  the  councils 
of  the  party. 

HENRY  T.  HAZARD. 

Henry  T.  Hazard,  the  prominent  political 
and  bar  leader  of  Los  Angeles,  was  born  in 
Evanston.  Illinois.  July  31,  1844.  He  crossed 
the  plains  to  California  with  his  parents  in 
1852,  and  settled  in  Los  Angeles  county  on  a 
farm,   a  few   miles  west  of  the  town   of  Los 


Angeles,  in  1853.  In  1860-61  he  attended  school 
at  Visalia,  Tulare  county,  returning  to  Los 
Angeles  in  the  latter  part  of  1861.  He  then 
engaged  in  farming  for  a  year.  In  1863-64  he 
attended  school  at  San  Jose.  At  Los  Angeles 
again  he  commenced  the  study  of  law  in  the 
office  of  General  Volney  E.  Howard,  where  he 
continued  for  a  time,  and  then  went  East  to 
Ann  Arbor,  and  completed  his  studies  at  the 
University  of  Michigan.  He  was  graduated 
with  his  class  of  1868.  Mr.  Hazard  was  cor- 
respondent of  the  Chicago  convention  that 
nominated  General  Grant  in  June,  1868;  also 
the  convention  that  nominated  Governor  Sey- 
mour in  New  York  in  July  of  the  same  year. 
Again  returning  to  Los  Angeles,  he  entered 
on  the  practice  of  law.  Mr.  Hazard  was  one 
of  the  original  members  of  the  Los  Angeles 
Bar  Association;  and  in  this  connection,  we 
may  record  that  the  association  named,  which, 
of  course,  is  still  flourishing,  was  organized 
December  3,   1878. 

The  main  purpose  of  the  association  was  to 
establish  a  law  library.  The  following  were 
the  charter  members :  Stephen  M.  White,  H. 
A.  Barclay,  V.  E.  Howard,  F.  H.  Howard, 
J.  R.  McConnell,  Andrew  Glassell,  Henry  T. 
Hazard,  A.  J.  King,  B.  C.  Whiting.  W.  D. 
Stephens.  A.  W.  Hutton,  E.  M.  Ross,  J.  G. 
Howard,  Thos.  H.  Smith,  H.  K.  S.  O'Melveny. 
J.  A.  Graves,  John  Mansfield,  J.  Brousseau. 
H.  M.  Smith,  M.  L.  Wicks,  R.  F.  Del  Valle. 
H.  T.  Lee.  The  first  officers  of  the  Bar  As- 
sociation were  elected  on  December  10,  1878, 
They  were  as  follows :  President,  A.  Glas- 
sell ;  vice-presidents,  Volney  E.  Howard  and 
J.  R.  McConnell ;  secretary,  A.  W.  Hutton ; 
treasurer,  J.  A.  Graves. 

Mr.  Hazard  has  done  much  public  service. 
He  was  elected  city  attorney  of  Los  Angeles 
in  1881,  and  filled  the  term  of  two  years.  In 
1884  ne  was  elected  a  member  of  the  assembly, 
and  served  at  the  regular  legislative  session 
of  1885,  and  at  the  extra  session  of  July,  1886. 
In  1889  he  was  elected  mayor  of  Los  Angeles, 
and  was  re-elected  in  1891,  seving  two  terms. 
As  observed  by  an  editorial  writer  afterwards, 
"His  legal  training  assisted  him  greatly  in 
the  conduct  of  the  office  of  mayor,  during 
periods  when  some  of  the  most  important  pub- 
lic   matters    engrossed   attention." 

For  many  years  Mr.  Hazard  has  made  pat- 
ent law  a  specialty.  In  1887  Mr.  Hazard 
formed  a  partnership  with  Mr.  George  E. 
Ilarpham.  who  had  just  removed  to  Los  An- 
geles from  San  Francisco.  The  firm  of  Haz- 
ard &  Harpham  still  continues  in  1901,  with 
a  large  patent  practice.  It  is  now  one  of  the 
oldest  patent  law  firms  in  (he  city,  or  in  the 
State.  Before  his  association  with  Mr.  Har- 
pam  began,  Mr.  Hazard  practiced  for  some 
years  in  partnership  with  the  late  ex-Judge 
II.  K.  S.  O'Melveny. 

^  AC  "History  of  Los  Angeles  county"  (Chi- 
cago, 1880).  in  a  notice  of  Mr.  Hazard,  says: 
"His  public  spirit  has  been  evinced  in  many 
ways,  but  particularly  in  the  erection  of  an 
immense  pavilion,  bearing  his  name,  on  the 
corner   of   Fifth   and   Olive   streets. 

"In   1874   Mr.   Hazard   married,   in    .'>aii   Ga- 


868 


History  of  the  Bench  and  Bar  of  California. 


\)V\'A.  ihc  third  (lauKlilor  nf  [)v.  W'iliiaiii  (jcllcr. 
The}'   have   no  cliildren." 

When  the  Southern  Pacihc  Company  wa-- 
asking  a  subsidy  from  Los  Angeles  county,  and 
a  bonus  to  build  the  road  into  Los  Angeles 
city.  Judge  O'Melveny  was  chairman  of  'the 
citizens'  committee  which  conferred  witli  Mr. 
Hyde,  the  company's  agent.  Tiie  meeting  was 
held  and  a  proposed  contract  drafted,  in  the 
law  office  of  O'lVIelveny  &  Hazard.  Mr.  Haz- 
ard inserted  in  the  document  a  clause  which 
has  done  more  than  anything  else  in  its  his- 
tory to  make  our  southern  metropolis  great 
and  prosperous.  After  the  words  declaring 
that  the  road  should  be  constructed  to  Los 
Angeles.  Mr.  Hazard  inserted  the  following: 
"It  shall  go  thence  by  way  of  San  Bernar- 
dino, through  the  Gorgonio  Pass,  to  a  point 
at  or  near  Fort  Vuma.  on  the  Colorado  River." 

in  an  address  which  he  issued  to  the  public, 
when  a  candidate  for  mayor,  some  years  aft- 
erwards. Mr.  Hazard  said  in  reference  to  this 
occurrence  : 

"This  clause  was  objected  to  l)y  Mr.  Hyde, 
the  agent,  and  he  was  ordered  to  return  to 
San  Francisco,  and  the  contract  was  declared 
off.  I  still  insisted  on  retaining  that  clause 
in  the  contract,  because  1  knew  that  if  they 
were  permitted  to  build  direct  to  San  Diego, 
and  thence  to  Yuma,  and  not  go  directly  from 
Los  Angeles  across  the  continent,  our  vitality 
would  gradually  go  to  the  Bay  City,  and 
Los  Angeles  would  be  but  a  way  station  on 
the   transcontinental   line." 

We  believe  that  a  further  and  more  ex- 
tended passage  from  this  address  of  historic 
interest    will   be   acceptable   to   the   reader. 

"We  did  not  then  occupy  the  independent 
position  which  we  now  possess.  The  commit- 
tee was  inclined  to  recede  from  the  position 
and  permit  this  clause  to  be  expunged,  but 
whether  you  believe  it  or  not,  it  is  due  to  my 
determination  not  to  permit  the  same  that  the 
committee  finally  agreed  to  stand  by  it  and 
insist  on  a  route  directly  east  from  here,  or  no 
subsi'dy.  They  were  apprehensive  that  we 
might  get  no  road  unless  we  receded,  but  I 
knew  that  the  road  could  not  be  built  through 
the  San  Fernando  Mountains  unless  the  com- 
pany received  our  subsidy.  I  was  blamed  at 
the  time,  but  I  stood  firm.  After  several 
months.  Mr.  Hyde  was  sent  back  to  renew  ne- 
gotiations and  agreed  to  this  condition.  I 
stated  liiat  the  subsidy  would  carry  with  that 
condition  in  it.  and  without  it.  it  would  not 
carry,  and  I  promised  that  if  the  clause  were 
retained  I  would  personally  canvass  the  county 
for  the  railroad  subsidy,  which  I  did.  At  the 
request  of  those  acting  for  the  campaign.  I 
took  charge  of  it  and  made  speeches  in  every 
important  voting  precinct  in  the  county.  I 
issued  an  open  challenge  to  meet  any  one  op- 
posed to  the  same,  and  they  were  many  at 
the  time,  and  I  did  meet  them  in  many  pre- 
cincts. As  a  result  the  bonds  were  carried 
by  a  large  majority.  After  the  election  was 
over.  I  was  invited  by  the  Southern  Pacific 
Railroad  Company  to  make  out  my  bill  for 
services.  And  every  one  else  was.  so  far  as 
I    knew,    paid    l)y    that    company    for    services 


111  tliat  campaign,  and  it  was  the  most  mem- 
ur.iJjle  one  in  the  history  of  the  county,  but 
I  declined  to  receive  a  cent  for  my  services 
in  tlial  behalf,  for  the  reason  that  1  went  be- 
fore ilie  people  as  a  citizen  and  taxpayer  and 
not  as  the  attorney  of  the  railroad  com- 
pany. 

The  road  was  built,  and  in  i88i.  when  I 
was  city  attorney,  knowing  the  contents  of  the 
contract,  I  demanded  the  conveyance  to  the 
city  of  the  fifty-seven  acres  which  now  con- 
stitute the  East  Lake  Park,  because  the  com- 
pany had  not  complied  with  the  agreement 
whereby  the  ground  was  conveyed  to  them, 
viz :  That  they  should  establish  a  workshop 
thereon.  They  had  erected  an  old  shanty  on 
the  ground  as  a  pretense  of  complying  with 
the  conditions.  At  my  own  suggestion,  sin- 
gle-handed and  alone,  I  began  a  campaign  for 
the  reconveyance  of  this  ground  to  the  city, 
and  succeeded  finally  in  obtaining  a  deed  from 
liie  company   to  the  city   for  the  land." 


ALEXANDER  HEYNEMANN. 

Alexander  Hej-nemann  was  born  at  Mel- 
bourne, Australia,  in  December,  1858.  He  lo- 
cated in  San  Francisco  in  1861.  He  was  edu- 
cated in  San  Francisco  and  in  Germany.  He 
has  been  active  at  the  San  Francisco  bar  since 
his  admission  by  the  Supreme  Court,  Decem- 
ber 5.  1879. 

THEODORE  H.  HITTELL. 

Theodore  H.  Hittell,  historian  and  lawyer, 
was  born  in  Lancaster  county,  Pennsylvania, 
in  1830.  In  1832  he  was  carried  to  Butler 
county,  Ohio,  where  he  passed  his  boyhood. 
In  1845  he  went  to  Miami  University,  and  in 
184Q  he  graduated  at  Yale  College.  He  was 
admitted  to  the  bar  of  Ohio  in  1852.  He  ar- 
rived in  San  Francisco  in  October,  1855,  and 
became  assistant  editor  of  the  Bulletin  news- 
paper a  position  he  filled  from  1856  to  i860. 
In  1861  he  joined  the  San  Francisco  bar.  and 
became  partner  of  Elisha  Cook.  In  1867  he 
formed  a  partnership  with  John  B.  Felton, 
which  lasted  until  Mr.  Felton's  death,  in 
1878.  In  1879  he  was  elected,  from  his  district 
in  San  Francisco,  to  the  State  senate,  and 
served  during  the  three  years  of  Governor 
Perkins'  administration.  In  the  legislature  he 
was  recognized  as  a  constant  and  laborious 
worker,  and  the  greater  part  of  the  statutes 
of  1880  was  his  work.  Among  other  things 
he  re-drafted  the  entire  Code  of  Civil  Proce- 
dure so  as  to  make  it  fit  the  new  constitu- 
tion. 

Mr.  Hittell  has  done  much  literary  work. 
His  first  book.  "The  Adventures  of  James 
Capen  Adams,  Mountaineer  and  Grizzly  Bear 
Hunter  of  California,"  was  published  in  Bos- 
ton in  i860.  "Hittell's  Digest  of  the  General 
Laws  of  California"  appeared  in  1865.  Ht 
entered  upon  the  preparation  of  his  great  work, 
the  "History  of  California,"  in  1870.  In  1872 
he  published  a  review  of  Goethe's  "Faust." 
His  "History  of  California"  was  published  in 
1897.     He  has  published   from  time  to  time  a 


L.   m.   Hoefler 


History  of  the  Bench  and  Bar  of  California. 


871 


number  of  papers  on  literary  and  scientific  sub- 
jects, in  addition  to  those  named,  and  several 
law  books. 

Among  the  important  lawsuits  with  which 
Mr.  Hittell  has  been  prominently  connected 
may  be  mentioned  the  Lick  Trust  case,  the 
Montgomery  avenue  case,  the  Dupont  street 
case,  and  particularly  the  San  Pablo  partition 
case,  in  which  he  was  the  main  driving  force 
from    1868   to    its    successful    finish    in    1895. 

Mr.  Hittell  was  married  in  June,  1858,  at 
San  Francisco,  to  Miss  Elise  Wiehe.  Mrs. 
Hittell  departed  this  life  at  that  city  in 
December,  1900.  The  children  are  Catherine 
H.  Hittell,  of  San  Francisco,  Charles  J.  Hit- 
tell. portrait  and  landscape  painter,  of  San 
Francisco,  and  Franklin  T.  Hittell.  attorney 
at  law,  of  Ukiah.  The  only  grandchild  is 
Theodore   H.   Hittell,  the  son  of   Franklin. 


L.   M.   HOEFLER. 


Here  is  a  busy,  well-established  lawyer,  just 
entering  life's  prime,  whose  sleepless  industry 
keeps  him  before  the  eye,  and  whose  charac- 
ter has  fixed  him  in  the  heart  of  the  profes- 
sion. 

Ludwig  M.  Hoefler  was  born  in  .Xdrian, 
Lenawee  county,  state  of  Michigan,  in  the 
year  1858,  and  came  to  California  when  he  was 
nineteen  years  of  age.  The  law  having  early 
possessed  his  ambition,  he  applied  himself  vig- 
orously to  the  books,  and  in  due  season  grad- 
uated from  the  Hastings  College  with  the  class 
of   1882. 

Few  lawj'ers  in  California  have  served  a 
livelier  apprenticeship  than  Mr.  Hoefler.  Tak- 
ing an  important  position  in  the  law  office  of 
the  late  Alfred  H.  Cohen,  and  later  with  the 
law  firm  of  Garber.  Thornton  &  Bishop,  com- 
posed of  John  Garber.  Harry  {.  Thornton  and 
Thomas  B.  Bishop,  he  had  the  benefit  of  ac- 
tive participation  in  the  practice  and  large  af- 
fairs controlled  by  those  well-known  gentle- 
men, and  the  stimulus  and  mental  discipline,  so 
important  to  a  young  man.  which  are  derived 
from  daily  association  with  men  in  the  very 
forefront  of  the  profession.  It  was  no  small 
privilege  to  serve  the  men  he  did.  It  was  a 
great  opportunity  as  well.  No  one.  indeed, 
has  ever  more  faithfully  improved  his  oppor- 
tunities or  better  deserves  the  success  which 
has  come  to  him. 

In  1896  the  firm  of  Bishop  &  Wheeler  was 
organized,  composed  of  Thomas  B.  Bishop, 
Charles  S.  Wheeler.  Ludwig  M.  Hoefler.  Guy 
C.  Earl  and  William  Rix,  with  ofiices  in  the 
Hobart  Building.  San  Francisco.  Upon  the 
withdrawal  of  Mr.  Earl,  in  August,  1900,  the 
firm  was  reorganized  under  the  name  of 
Bishon.  Wheeler  &  Hoefler.  Mr.  Hoefler  since 
the  organization  of  the  firm  has  been  one 
of  the  busiest  lawyers  in  San  Francisco,  dis- 
posing daily  of  a  mass  of  work  which  would 
be  appalling  to  many  lawyers,  and  impossible 
to  not  a  few  of  them.  That  he  is  able  to  ac- 
complish .so  much,  and  to  do  it  so  well,  is  due 
to  the  fact  that  legal  and  executive  ability 
are  happily  combined  in  him,  that  he  is  quick 
and  accurate  in  his  conclusions,  and  absolutely 


unfaltering  and  uniirmg  ni  his  attention  to 
business.  He  is  a  man  of  phenomenal  energy, 
while  his  good,  easy  temper  and  obliging  man- 
ner on  all  occasions  win  for  him  universal 
favor.  Those  who  know  him  well — and  their 
name  is  legion,  for  he  has  a  wide  acquaintance 
over  the  State — yield  him  attachment  for  his 
broad  and  liberal,  as  well  as  for  his  unselfish 
nature.  He  is,  indeed,  a  true  friend  and  one 
of  the  most  companionable  of  men.  He  is  hap- 
pily married,  and  has  one  child,  a  daughter. 


S.   SOLON  HOLL. 


Here  is  one  of  our  very  oldest  acquaintances, 
an  early-day  police  magistrate  of  the  capital 
city. 

S.  Solon  Holl  was  born  in  Lancaster  county, 
Pennsylvania,    on    the   8th   day   of   July,    1833, 
of    American    parents.      His    ancestors    came 
■  from    Switzerland    several    centuries    ago. 

Judge  HoU's  parents  settled  on  a  farm  in 
Stark  county,  Ohio,  where  he  was  brought  up 
from  infancy.  On  March  i,  1850,  at  the  age 
of  si.xteen,  he  started  for  California.  The 
young  man  joined  a  'company  of  about  one 
hundred  men,  who  assembled  at  Wheeling,  in 
Virginia,  during  the  first  week  of  March.  1850. 
This  company  went  down  the  Missi,ssippi 
River,  crossed  the  Gulf  of  Mexico  to  Grey- 
town,  on  the  Central  American  coast,  thence 
up  the  San  Juan  River,  and  across  Lake  Nic- 
aragua, to  the  City  of  Granada,  and  thence 
by  ox  teams  to  the  port  of  Realijo.  on  the 
Pacific.  At  this  point  they  took  passage  for 
San  Francisco,  where  they  arrived,  August 
17.    1850. 

He  worked  at  mining  in  Nevada  City  for 
several  years,  and  then  at  his  trade  of  car- 
penter at  Grass  Valley  until  1857.  He  then 
located    permanently   at    Sacramento. 

It  was  at  Grass  Valley,  in  1855,  that  he  made 
up  his  mind  to  study  law,  and  for  three  or 
four  years  thereafter  he  alternately  worked  at 
his  trade  and  studied  law,  first  at  Grass  Val- 
ley, and  afterwards  at  Sacramento.  While  a 
boy  on  the  farm  in  Ohio  he  attended  the  dis- 
trict school  during  the  winter  months  of  the 
year.  That  log  school  house  on  the  Ohio 
farm  was  the  first  and  last  educational  insti- 
tution that  he  ever  had  the  opportunity  of  at- 
tending. BiU  he  was  a  persevering  student 
always,  and  educated  himself. 

In  1859  he  began  the  practice  of  law  in  Sac- 
ramento. In  October,  1862,  he  was  elected 
Police  Judge  of  Sacramento  City,  and  held 
that  office  for  over  three  years.  .Xfterwards 
he  was  appointed  city  attorney,  and  filled  that 
position  for  one  year,  when  the  office  was  in- 
corporated with  that  of  district  attorney.  These 
were  the  only  public  ofiices  ever  held  by  liiin. 
]')uring  his  term  of  office  as  Police  Judge 
llie  law  [)rohibiling  tlu'.itrical  performances 
on  Sunday  was  for  the  first  lime  enforced. 
The  records  of  the  Police  Court  of  Sacramento 
city  still  show  judgments  imposing  fines  on 
McKean  Buchanan.  Frank  Mayo.  Mrs.  Saun- 
ders, Mrs.  Judah.  Lulu  Sweet,  William  Barry 
and  other  stage  celebrities,  who  were  convicted 
before    Judge    Holl    of    playing    on    Sundays. 


872 


History  of  the  Bench  and  Bar  of  California. 


From  that  time  until  the  law  was  repealed  it 
was  observed  in  Sacramento.  With  the  wis- 
dom or  policy  of  the  law.  Judge  Holl  had 
nothing  to  do,  but  he  strenuously  insisted  upon 
enforcing  it,  as  all  other  laws  and  ordinances. 

For  some  time  after  leaving  office  he  gave 
considerable  attention  to  the  practice  of  crim- 
inal law,  and  was  frequently  engaged  on  one 
side  or  the  other  in  the  prosecution  of  criminal 
cases.  The  most  important  of  these  was  the 
case  of  Bill  and  Tom  Yoakum,  at  Bakcrsfield, 
in  Kern  county.  The  Yoakums  were  indicted 
for  the  murder  of  two  men  named  Johnson 
and  Turner.  There  were  several  trials  of  the 
case,  which  created  intense  excitement  in  Kern 
county. 

Johnson  and  Turner  were  killed  by  Bill  and 
Tom  Yoakum,  at  Long  Tom,  in  Kern  county. 
in  1878.  The  double  crime  was  the  climax  of 
a  long  series  of  atrocities  that  had  run  through 
some  years  in  that  county,  and  in  almost  every 
instance  there  was  an  utter  failure  of  jus- 
tice,   the    criminals    escaping    punishment.      It 


seemed  impossible  to  enforce  the  law  against 
murderers,  robbers,  burglars,  and  other  crimi- 
nals. Life  and  property  were  unsafe,  and 
there  was  a  deep  feeling  of  anxiety  and  sen- 
sation in  the  community. 

Just  at  this  time  occurred  within  ten  miles 
from  Bakersfield  the  killing  of  Johnson  and 
Turner  by  Bill  and  Tom  Yoakum,  without  the 
least  excuse  or  provocation.  Johnson  and 
Turner  were  driving  along  the  public  highway. 
John  driving  a  four-horse  team,  and  accom- 
panied by  Turner's  sister.  Turner  driving  a 
two-horse  wagon,  with  his  wife  hf)lding  an  in- 
fant in  her  arms,  and  two  other  small  children 
riding  on  the  same  seat  with  him.  Bill  and 
Tom  Yoakum  were  lying  in  wait  behind  a 
ledge  of  rock,  each  armed  with  a  Winchester. 
When  the  teams  reached  a  point  distant  about 
seventy-five  yards  from  the  rocks,  the  Yoa- 
kums opened  fire,  and  instantly  killed  both 
Turner  and  Johnson.  The  Yoakums  were  ar- 
rested, and  indicted  by  the  grand  jury,  two 
indictments   being   found   against   each   defend- 


ant. At  this  point  Judge  Holl  was  called  to 
Bakersfield  by  the  citizens  of  Kern  county 
fD  prosecute  the  cases. 

Bill  Yoakum  was  put  on  trial  first.  J.  W. 
Freeman  was  district  attorney.  The  jury  was 
packed,  and  in  the  face  of  the  clearest  evi- 
dence of  his  guilt,  the  verdict  was  an  unquali- 
fied acquittal.  Then  the  trouble  commenced. 
The  excitement  became  more  intense  than 
ever,  and  the  destruction  of  Yoakum  by  the 
enraged  and  excited  people  was  prevented 
largely  by  the  influence  and  arguments  of 
Judge  Holl,  who  prevailed  upon  them  to  await 
the  result  of  a  second  trial.  Finally  this 
was  agreed  to,  and  matters  became  more  quiet. 
A  few  months  later  Bill  Yoakum  was  again 
put  on  trial  upon  the  second  indictment.  Judge 
Holl  then,  at  the  request  of  the  citizens  and 
by  the  invitation  of  the  district  attorney,  be- 
came the  leading  attorney  in  the  case  for  the 
people.  Yoakum  moved  for  a  change  of  venue. 
The  motion  was  denied,  the  court  being  fully 
aware  that  to  grant  the  motion  would  result 
in  the  defendant  being  lynched  before  he  could 
get  out  of  the  court  house.  This  view  of  the 
court  was  fully  confirmed  by  subsequent  events. 
The  trial  then  proceeded,  and  lasted  several 
weeks.  Bill  Yoakum  was  convicted  of  mur- 
der in  the  first  degree,  and  shortly  afterwards 
sentenced  to  be  hanged  by  Judge  Theron  Reed. 
An  appeal  was  taken  to  the  Supreme  Court, 
and  in  due  time  that  tribunal  reversed  the 
judgment  of  conviction,  and  directed  the  lower 
court  to  grant  the  change  of  venue.  This  de- 
cision was  communicated  to  Judge  Holl.  Sat- 
urday afternoon,  and  telegraphed  by  him  to 
Bakersfield  immediately.  Within  twenty-four 
hours  after  this  news  was  received  in  Bakers- 
field a  crowd  of  not  less  than  fifty  citizens  of 
Kern  county,  without  any  attempt  at  disguise, 
marched  to  the  jail,  broke  into  it,  and  in  their 
cells  hanged  both  Bill  and  Tom  Yoakum.  The 
trial  was  one  of  the  most  exciting  ever  had 
in  the  State.  A  full  history  of  it  would  read 
like  a  romance.  Judge  Terry  was  the  leading 
attorney  for  the  defense,  and  with  him  were 
associated  a  number  local  attorneys. 

Of  course,  this  is  a  mere  synopsis.  The  his- 
tory, from  the  murder  of  Johnson  and  Turner 
to  the  hanging  of  the  murderers  by  the  mob, 
is  full  of  sensational  and  dramatic  incidents. 
On  the  last  night  of  the  trial,  the  court  room 
was  full  of  armed  and  desperate  men.  intent 
upon  killing  Judge  Terry  should  he  interrupt 
the  closing  argument  for  the  people,  as  he  had 
done  during  the  argument  at  the  first  trial. 
His  discomfiture  in  the  attempted  interruption 
saved  the  court  from  witnessing  a  frightful 
scene. 

In  January.  1868.  Judge  Holl  was  married  in 
San  Jose  to  Miss  Julia  Hartwell.  Thej'  have 
two  children.  James  H.  and  Charles  C.  Holl. 
The  former  is  raising  stock  in  Lassen  county, 
and  the  later  is  an  attorney. 


G.  M.  HOLTON. 

George    M.    Holton    was    born    at    Hillsdale, 
'Michigan,  on   February   ist,   1845.     His   father 
was  by  occupation  a  contractor  and  of  Welsh 
ancestrj'. 


History  of  the  Bench  and  Bar  of  California. 


873 


George  M.  Holtoii  received  his  education  in 
Michigan,  at  the  Pontiac  High  School,  Ypsi- 
lanti  State  Normal  School,  and  Oxford  Acad- 
emy. He  studied  law  at  Pontiac  in  the  office 
of  Hon.  M.  E.  Crowfoot,  and  was  admitted  to 
the  har  by  the  Supreme  Court  of  Micliigan  in 
November,  1870.  He  practiced  law  at  Houston, 
Texas,    for   about   eight   years. 

Mr.  Holton  came  to  California  and  settled 
at  Los  Angeles  in  November,  1878.  He  has 
been  practicing  law  in  that  city  ever  since, 
except  when  in  public  life.  In  1884  he  was 
elected  district  attorney  of  Los  Angeles  county, 
being  the  first  Republican  to  hold  that  office ; 
and  served  the  term,  which  was  then  two 
3'ears.  it  was  during  his  administration  of 
that  office  that  the  fine,  elevated  site,  since 
crowned  by  the  sightly  court  house,  was  pur- 
chased by  the  county,  the  work  of  passing" on 
the  title  and  preparing  the  necessary  papers 
being  done  by  him.  In  1895-98  he  was  chief 
deputy  under  District  Attorney  John  A.  Don- 
nell. 

In  1879  Mr.  Holton  was  united  in  marriage 
to  Miss  Cornie  E.  Arrison,  who  bore  him  four 
children.  His  wife  died  in  1892,  and  but  one 
child,  a  boy  of  twelve,  is  now  living.  In  1895 
Mr.  Holton  married  Zoe  Mae  Dibble. 

Mr.  Holton  has  always  practiced  law  by 
himself,  and  is  at  present  located  at  218  South 
Broadwav. 


F.  A.  HORNBLOWER. 

F.  A.  Hornblower,  Judge  of  the  Police  Court 
No.  I,  San  Francisco,  for  the  year  1887-88, 
is  a  pioneer  of  August,  1849.  I"  the  fifties  he 
followed  mining  and  law  practice  in  El  Do- 
rado county,  holding  several  public  offices.  He 
removed  to  Sacramento  city,  where  he  was 
proprietor  of  the  Golden  Eagle  Hotel  for  a  few 
years. 

He  located  in  San  Francisco  in  1875,  and 
kept  the  Commercial  Hotel,  with  Homer  P. 
Saxe,  1876-77.  He  resumed  the  practice  of 
law  in  1881.  He  was  born  in  London,  Eng- 
land, of  parents  born  in  the  United  States, 
in   February,    1823. 


JOHN  A.  HOSMER. 


John  A.  Hosmer,  wiio  was  a  veteran  public 
prosecutor  in  San  Francisco,  was  born  in 
Ohio,  September  15,  1850.  He  was  admitted 
to  the  bar  at  Virginia  City,  Montana  terri^ 
tory,  in  1871,  having  studied  under  his  father, 
who  was  the  first  Chief  Justice  of  the  Supreme 
Court  of  that  territory.  He  settled  at  Stock- 
ton, California,  in  1873,  and  was  district  at- 
torney  of    San   Joaquin   county   in    1876-77. 

Mr.  Hosmer  removed  to  San  Francisco  in 
August,  1882.  He  served  as  managing  clerk 
in  the  offices  of  H.  E.  Highton.  John  H.  Dick- 
inson and  E.  F.  Preston.  He  was  assistant 
district  attorney  from  1885  to  1897,  excepting 
the  years  1887-88.  serving  under  District  At- 
torneys Wilson,  Page  and  Barnes.  He  was 
married  in  1884  to  Miss  Lucie  Brewster,  a 
daughter  of  General  John  A.  Brewster,  for- 
merly survevor-general  of  this  State,  who  laid 


out  the  city  <jf  Santa  Rosa.  They  have  three 
children. 

Mr.  Hosmer  comes  of  a  long  line  of  an- 
cestors who  have  been  prominent  in  iudicial 
life.  His  great  grandfather,  Titus  Hosmer, 
was  one  of  the  signers  of  the  Articles  of  Con- 
federation, and  afterwards  a  Judge  of  an  ap- 
pellate court  in  Connecticut.  His  grandfather 
was  a  prominent  lawyer  in  Hudson,  New  York, 
and  his  great-uncle,  Stephen  Titus  Hosmer, 
was  for  many  years  Chief  Justice  of  Connecti- 
cut. On  his  mother's  side,  his  uncle,  the  late 
Charles  Daniels,  was  for  thirty  years  a  Judge 
of  the  Supreme  Court  of  the  state  of  New 
^'ork. 

Since  leaving  the  district  attorney's  office 
Mr.  Hosmer  has  been  at  the  San  Francisco 
l)ar,  not  at  all  confining  himself  to  the  crim- 
inal side  of  the  practice,  but  doing  a  general 
business,  and  being  accomplished  in  all  classes 
of  cases. 

STEPHEN   C.   HUBBELL. 

Mr.  Hubbell  was  born  in  New  York,  May 
31,  1841.  He  was  graduated  at  what  is  now 
known  as  Chamberlain  Institute  at  Randolph. 
He  taught  a  number  of  terms  in  the  public 
schools  under  a  state  diploma,  preparatory  to 
entering  the  profession  of  law.  He  was  ad- 
mitted to  practice  in  all  the  courts  of  the 
state  of  New  York  at  Buffalo  in  1863,  and 
was  subsequently  admitted  to  practice  in  the 
Supreme  Court  of  the  United  States  and  in 
all  the  United  States  Courts,  and  settled  in 
Jamestown.   New   York.     There   he   was   mar- 


ried and  i)racticed  law  until  l8(x),  when  his 
wife  died  ;  he  then  came  to  California  and  en- 
tered the  office  of  Winans  &  Belknap.  San 
Franciscfi,  as  their  chief  clerk,  that  he  might 
become  familiar  with  the  California  practice. 
in  1870  he  formed  a  co-partnership  with 
lliiKit  Clark,  district  attorney  for  San  Ber- 
nardino comity,  wiiicli  partnership  continued 
until  the  death  of  Judge  Clark,  about  a  year 
thereafter.  In  1873  he  was  married  to  Miss 
Lora  A.  Loomis  of  Manchester,  Iowa,  after 
which   he  lociicd   at   Los   Angeles  and  entered 


874 


History  of  the  Bench  and  Bar  of  California. 


into  the  active  practice  of  the  law,  which  has 
been  his  main  business  since  that  time.  He 
was  attorney  and  counsellor  for  many  years 
for  the  street  railway  corporations  of  Los 
Angeles  city,  and  was  at  one  time  president 
of  the  National  Bank  of  California,  and  is 
still   a   director   in   that   bank. 

He  has  been  actively  connected  with  the 
growth  and  prosperity  of  the  city  of  Los  An- 
geles, and  in  building  up  its  various  charita- 
ble and  religious  institutions  and  in  promoting 
its  business  enterprises. 

He  was  president  of  the  First  Street  Rail- 
way Company  for  more  than  ten  years,  and 
was  one  of  the  active  members  of  the  board 
of  the  Los  Angeles  Cable  Railway  Company, 
which  expended  over  two  million  dollars  in 
building  a  cable  railway  system  in  Los  An- 
geles city. 

He  was  one  of  the  three  park  commissioners 
first  appointed  by  the  Governor  of  the  State  of 
California  for  laying  out  the  system  of  parks 
in  Los  Angeles,  and  acted  as  park  commis- 
sioner in  laying  out  the  various  parks  in  that 
city   for   about   six   years. 

He  is  now  president  of  the  Hubbell  Oil 
Company.  His  business  outside  of  the  law 
has  become  so  large  and  takes  so  much  of  his 
time  that  he  has  given  up  the  active  practice 
of  his  profession.  He  has  a  beautiful  home  at 
131 5    Pleasant    avenue.    Los    Angeles   city. 

We  get  our  facts  from  the  California  Inde- 
pendent of  September  27,  1900. 


A.  B.  HUNT. 


A.  B.  Hunt  represented  Santa  Clara  county 
in  the  assembly  in  1865.  He  located  at  San 
Francisco  on  January  i,  1878,  changing  his 
residence  to  Alameda  county  in  1881. 

He  was  born  in  New  York,  February  14, 
1837,  educated  at  Oberlin  College,  Ohio,  and 
was  admitted  to  the  bar  of  the  California  Su- 
preme Court.  July  5.  1868. 

Mr.  Hunt  has  been  register  of  the  L^nited 
States  Land  Office  at  San  Francisco  since  the 
6th  day  of  September.  i8g8.  by  appointment  of 
President  McKinley. 

He  was  married  to  Miss  Alice  C.  Pickle  at 
San  Francisco.  August  4.  1880,  and  has  one 
son.  Reuben  G.  Hunt,  a  member  of  the  junior 
class  of  the  University  of  California.  Mr. 
Himt  has  during  each  campaign  for  many 
years,  at  the  request  of  the  Republican  State 
central  committee,  stumped  the  State  of  Cali- 
fornia for  the  Republican  party. 


FREDERICK  M.  HUSTED. 

Frederick  M.  Husted.  attorney  at  law.  and 
publisher  of  many  directories  ■  of  California 
cities  and  counties,  and  of  Honolulu  and  the 
Hawaiian  Islands,  located  his  law  office  in 
San  Francisco  in  1875.  He  was  born  in  Ver- 
mont, July  30,  1850,  and  was  educated  at  the 
Northwestern  University.  He  was  admitted 
to  the  bar  in  Illinois,  shortlv  before  coming 
to  San  Franci.sco.  He  is  still  in  the  practice 
of  law  while  conducting  the  business  of  a  di- 
rectorv  tJublisher. 


THOMAS  HART  HYATT,  JR. 

Thomas  Hart  Hyatt,  Jr..  was  in  the  sixties 
and  seventies  a  popular  young  lawyer  of  San 
Francisco.  He  was  born  in  New  York,  Au- 
gust 12,  1841.  He  prepared  for  the  bar  at  the 
Law  School  at  Albany,  where  he  was  admitted 
to  practice.  He  was  in  the  seventies  a  short- 
iiand  reporter  with  Marsh  &  Osbourne  at  San 
Francisco.  Mr.  Hyatt  was  one  of  the  Repub- 
lican nominees  for  Justice  of  the  Peace  in 
September,  1867,  when  his  party  met  defeat. 
He  is  now  reporting  for  the  Superior  Court  at 
Fairfield,    Solano  county. 

Thomas  Hart  Hyatt,  his  father,  .once  well 
known  in  San  Francisco  and  afterwards  a 
United  States  Consul  in  China,  was  born  in 
New  York,  February  19.  1809,  and  died  at 
Winters,  Yolo  county,  California.  February 
II.  1881.  Hon.  Hart  Hyatt  North,  commis- 
sioner of  immigration  at  San  Francisco,  is  a 
nephew  of  Mr.  T.  H.  Hyatt. 


LEIGH  H.  IRVINE. 


This  gentleman,  who  has  attained  celebrity 
as  a  writer  of  fiction,  is  a  lawyer  by  profession, 
although  he  has  had  little  to  do  at  the  bar 
since  locating  in  San  Francisco.  Some  very 
interesting  men  have  turned  aside  from  the 
law  in  our  chief  city  to  win  fortune  in  other 
lines.  We  could  add  many  names  to  those  of 
James  B.  Haggin,  the  multi-millionaire,  now 
of  New  York  City :  Lloyd  Tevis.  his  partner, 
and  the  king  of  business  men.  who  died  at  a 
great  age  in  1899;  Henry  L.  Dodge,  the  opu- 
lent San  Francisco  merchant :  James  R.  Gar- 
niss.  the  resident  manager  at  San  Francisco 
of  the  American  Surety  Company.  w;ho  retired 
in  October.  1900,  after  a  long  successful  busi- 
ness career,  and  Colonel  John  P.  Jackson,  late 
collector    of   that    port. 

The  men  who  have  drifted  from  law  into 
journalism  are — well,  their  name  is  legion. 

Mr.  Irvine  was  born  at  Oregon.  Missouri,  on 
the  28th  day  of  November,  i860.  His  father, 
Clark  Irvine,  was  a  lawyer  and  author,  of  old 
American  ancestry.  Mr.  Irvine  was  educated 
at  the  State  Lniiversity  of  Missouri  and  at  the 
Columbia  Law  School,  where  he  was  a  pupil 
of  the  eminent  Judge  Philemon  Bliss.  He  was 
admitted  to  the  bar  at  Kansas  City.  Missouri, 
on  the  3rd  day  of  March.  1882.  and  practiced 
for  about  five  years  at  Kansas  City.  In  the 
^ear  1887  he  was  the  Democratic  candidate  for 
Police  Judge  of  Kansas  Citv.  Missouri.  He 
came  to  San  Francisco  in  1888.  and  has  since 
been  connected  in  an  editorial  capacitv  with 
all  the  great  dailies  of  that  citv.  and  also  the 
Sacramento  Rcrord-l'nion.  He  wrote  his 
first  novel  in  1893,  entitled  "Told  in  Whis- 
pers." 

He  has  since  witien  the  following:  "The 
Wolf  at  the  Door."  "The  Struggle  for  Bread" 
and  "An  Aflfair  in  Mid-ocean."  In  i8''2  he 
began  a  thorough  study  of  the  art  of  writing 
romance,  and  his  stories  dwell  on  the  charm 
of  incident  rather  than  the  s'lbtl^tv  of  charac- 
ter. He  has  also  written  widelv  for  magazines 
on   sociological   matters.     In   fiction    Stevenson 


History  of  the  Bench  and  Bar  of  California. 


875 


is  his  ideal,  and  the  Soutli  Seas  aro  his  ticld. 
He  spent  several  years  in  the  islands  gather- 
ing  data   for   his   work. 

Mr.  Irvine's  plots  and  his  style  of  writing 
have  won  the  commendation  of  the  severest 
critics  in  California,  in  eastern  cities,  and  even 
in  London.  He  is  now  settled  at  San  Fran- 
cisco, still  occupied  in  writing  romances.  His 
latest  production,  "An  Affair  in  Mid-ocean," 
was  published  by  T.  Fisher  Unwin,  London. 

In  person  Mr.  Irvine  is  of  large  build,  be- 
ing six  feet  tall  and  weighing  nearly  two  hun- 
dred pounds.  He  is  practiced  in  athletic  sports 
and  has  extraordinary  physical  strength,  being 
a  man  of  brawn  as  well  as  brain.  He  is  a 
constant  associate  of  lawyers  and  popular  with 
all  classes.  He  married  at  San  Jose,  on  the 
i8th  day  of  May,  i8g8.  Miss  Rosalie  Younger, 
a  ladv  of  fine  education  and  literary  ability. 
She  has  been  his  constant  companion  and  se- 
verest critic  in  his  later  literary  work.  His 
happiest  hours  are  in  his  library  at  home,  and 
the  great  masterpieces  have  more  charm  for 
him  than  courts,  though  he  often  lectures,  and 
is   fond   of  public   speaking. 


CHAS.   H.  JACKSON. 

Charles  Hooper  Jackson  is  the  eldest  son 
of  Colonel  John  P.  Jackson,  who  was  sub- 
treasurer  of  the  United  States  under  Presi- 
dent Harrison,  and  who  was  under  McKinley 
collector  of  the  port  of  San  Francisco.  His 
mother,  Louisiana  Hooper,  was  born  in  Ken- 
tucky, of  good  old  Kentucky  stock.  Some  of 
her  male  progenitors  fought  in  the  War  of 
1812.    and    also    the    War    of    the    Revolution. 


His  father  was  horn  in  Cleveland.  ()]iici.  In 
the  War  of  the  Rebellion  the  latter  served  as 
Colonel  of  the  Twenty-third  Kentucky  regi- 
ment. 

Mr.  Charles  H.  Jackson  was  born  in  New- 
port. Kentucky,  in  1858.  He  came  to  Califor- 
nia in  1869.  He  is  a  graduate  of  the  whole 
public  .school  system  of  California,  including 
the  Lincoln  Primary,  Lincoln  Grammar,  Boys' 
High    School,   and    Hastings   College   of   Law. 


He  graduated  from  the  academic  department 
of  Harvard  University  in  1881  with  honors 
in  history  and  philosophy.  He  studied  law  in 
the  offices  of  McClure,  Dwindle  and  Plaisance 
and  General  W.  H.  L.  Barnes.  He  was  com- 
missioned a  notary  public  on  January  8, 
1883,  and  held  the  othce  many  years.  On 
January  4,  1887,  the  Superior  Court  appointed 
him  a  court  commissioner.  In  1889  he  was 
assistant  district  attorney  of  San  Francisco. 
He  was  deputy  attorney  general  under  W. 
H.  H.  Hart,  and  also  under  W.  F.  Fitzgerald, 
being  the  only  one  of  General  Hart's  staff  ap- 
pointed by  General  Fitzgerald — a  flattering 
recognition  of  the  value  of  his  services. 

In  1896  Mr.  Jackson  was  nominated  by  the 
Republicans  for  the  office  of  city  and  county 
attorne\',  and  was  defeated  by  a  small  ma- 
jority. In  1899  he  was  again  nominated  for 
the  same  office  but  was  defeated,  as  the  city 
went  overwhelmingly  Democratic.  In  i8g8 
he  received  a  nomination  for  the  Superior 
Judgeship,  but  refused  to  run.  In  1886,  after 
a  spirited  battle  at  the  polls.  Mr.  Jackson  was 
elected  a  delegate  to  the  Republican  State  con- 
vention. He  was  one  of  the  founders  of 
the  Dirigo  Club,  now  the  Union  League  Club 
of  San  Francisco.  He  is  a  member  of  the 
Harvard  Club  of  San  Francisco,  a  life  mem- 
ber of  the  Olympic  Club,  of  the  Elks,  of  the 
California  Commandery  of  Knights  Templar, 
and  of  Eureka  Lodge,  No.  4,  I.  O.  O.  F.  For 
several  years  he  was  president  of  the  Amer- 
ican Shakespeare  Society,  of  San  Francisco. 
Mr.  Jackson  married  on  December  15,  i8<S6, 
Harriet  Elizabeth  Couch,  and  has  a  son,  John 
P.  Jackson,  3rd,  aged  five  years.  John  P. 
Jackson  2nd  is  Mr.  Jackson's  brother. 

While  deputy  attorney  general,  Mr.  Jack- 
son devoted  most  of  his  time  to  brief  work, 
writing  most  of  the  briefs  and  arguing  a  great 
number   of   cases.  , 


JOHN    P.   JACKSON. 

CoKmel  Jackson,  who  has  played  .so  im- 
portant and  consjiicuous  part  in  public  affairs 
in  this  State,  is  a  lawyer  of  ability,  although 
not  often  seen  at  the  California  bar.  He 
has  a  record  of  fifteen  years'  successful  prac- 
tice at  the  bar  of  Cincinnati,  Ohio,  where  he 
was  admitted  in  the  year  1854.  ?Iis  mind 
was  turned  to  the  law  by  the  Ohio  scholar 
and  advocate.  Bellamy  Storer.  who  had  heard 
him.  in  his  twentieth  year,  deliver  an  address 
to  Kossuth,  as  the  spokesman  of  the  young 
men  of  Cincinnati  when  the  great  man  was 
visiting  that  city.  In  the  National  Cyclo- 
pedia of  .American  Biogra])hy,  it  is  written 
of  this  effort,  that  the  young  orator  was 
cheered  from  the  beginning  to  the  end  of  his 
address. 

.\  large  part  of  the  Colonel's  practice,  pe- 
culiar lo  himself,  was  in  cases  before  courts- 
martial  and  nu'Iitary  commissions.  .Among 
the  most  noted  of  these  was  that  of  the  "Chi- 
cago Consi)irators,"  who  were  tried  for  their 
attempt  to  release  the  Confederate  prisoners 
confined  at  Camp  Douglas  during  (he  Civil 
War. 

Colonel    Jack.son    gained    the    title    by    which 


876 


History  of  the  Bench  and  Bar  of  California. 


he  is  universally  known,  in  that  great  con- 
flict, through  which  he  fought.  In  1867  he 
went  to  Europe  to  negotiate  bonds  of  the 
California  Pacific  Railroad  Company,  which 
led  to  his  coming  to  California  to  take  charge 
of  the  affairs  of  that  company.  He  remained 
its  president  until  the  purchase  of  the  road 
bv  the  Central  Pacific  Company. 
'Colonel  Jackson  bought  the  San  Francisco 
Post  in  1875.  and  conducted  it  successfully  for 
ten  vears.  Afterwards,  for  some  three  years, 
he  owned  and  conducted  the  San  Francisco 
illustrated  weekly.  The  Wasp.  ,He  was  United 
States  treasurer  at  San  Francisco  during  the 
administration  of  President  Harrison,  and  now, 
under  President  McKinley.  is  collector  of  that 
port. 

The  Colonel  was  born  at  Cleveland.  Ohio, 
March  7.  1833.  In  1857  he  was  inarried  to 
Miss  Anna  Hooper  daughter  of  Edward 
James  Hooper,  of  Kentucky,  and  has  seven 
sons  and  two  daughters.  He  is  a  man  of 
means,  and  has  a  delightful  home  on  Sutter 
street.    San    Francisco. 

Although  we  have  said  that  Colonel  Jack- 
son has  not  been  at  this  bar.  the  statement  is 
not  altogether  exact.  He  is  a  regularly  con- 
stituted member  of  the  California  bar,  having 
been  duly  admitted  by  the  Supreme  Court  of 
the  State  to  practice  in  all  the  Courts  thereof; 
and  for  some  years  after  coming  to  California 
he  acted  as  advisory  counsel  to  the  various 
railroads  with  which  he  was  connected,  name- 
Iv:  The  California  Pacific,  the  San  Francisco 
&  North  Pacific,  the  Stockton  &  Copperopolis. 
and  the  Los  Angeles  &  Independence  Rail- 
roads. 

After  the  foregoing  had  been  prepared  and 
put  in  type.  Colonel  Jackson  met  with  a  sud- 
den and'serious  illness  in  Sentember.  1900.  He 
underwent  a  capital  operation  for  kidney 
trouble,  from  which  he  \iid  not  rally,  but  died 
in   San  Francisco.   September  25th. 

Colonel  Jackson  was  one  of  the  most  active 
spirits  that  ever  figured  in  the  political  history 
of  this  State.  His  familiar  figure  was  always 
.'^een.  and  his  influence  felt  at  county  and  State 
conventions  of  his  party.  He  was  enthusiastic 
and  industrious  in  all  his  undertakings.  He 
raised  a  large  family  with  rare  paternal  solici- 
tude. 


MYER  JACOBS. 


Myer  Jacobs  was  born  at  San  Francisco. 
California.  November  12,  1856.  He  was  edu- 
cated in  the  public  schools  of  San  Francisco 
and  was  graduated  from  the  San  Francisco 
Boys'  High  School  in  1872.  In  1876  he  was 
graduated  from  the  University  of  California, 
receiving  from  that  institution  the  degree  of 
Ph.  B.  In  1879  lie  ^^'^s  graduated  from  the 
law  department  of  Columbia  College,  New 
York,  receiving  the  degree  of  LL.  B.  In  the 
same  year  the  University  of  California  con- 
ferred upon  him  the  degree  of  Master  of  Arts. 
In  May,  1879,  he  was  admitted  to  the  bar  of 
the  State  of  New-  York,  and  in  July  following, 
to  the  bar  of  his  native  State  of  California. 

Mr.  Jacobs  has  been  in  constant.  acti\«e 
practice  since  his  admission  up  to  the  present 


time.  He  has  devoted  himself  more  partic- 
ularly to  mercantile  and  probate  cases.    From 

1891  to  1893.  he  occupied  the  position  of  first 
assistant  city  and  county  attorney  of  San 
Francisco. 

In  politics  he  has  always  been  a  Republican, 
and  for  many  j^ears  was  very  active  in  politi- 
cal matters,  holding  important  and  responsi- 
ble   positions    in    his    party    organization.      In 

1892  he  was  the  regular  Republican  nominee 
for  city  and  county  attorney  of  San  Fran- 
cisco, but  was  defeated  by  Hon.  Harry  T. 
Cresswell,   Democrat. 

He  is  a  member  of  Doric  Lodge.  No, 
216.  F.  and  A.  M..  and  has  been  connected 
with  the  Masonic  Order  for  several  years. 


I 


I.    EDWARD    JARRETT. 

Mr.  Jarrett  was  born  in  Union  county, 
Pennsylvania.  October  21st,  1850.  His  pater- 
nal ancestor  was  a  descendant  of  Hon.  Thomas 
Jarrett.  who  was  commissioned  surveyor  in 
Maryland,  by  the  command  of  William  and 
Mary  of  England.  The  father  of  I.  E.  Jarrett 
was  an  old  and  esteemed  resident  of  the  Key- 
stone State,  who  responded  to  his  country's 
call  in  1861,  and  served  with  honor  and  dis- 
tinction as  a  Union  soldier,  through  the  Civil 
War,  He  was  a  Republican  in  politics,  and 
held  several  public  offices.  The  son  followed 
in  the  footsteps  of  his  father,  and  cast  his  lot 
with  the  Republican  party. 


I.  E.  Jarrett  was  educated  in  the  schools 
of  Pennsylvania,  and  received  certificates  of 
educational  merit  whereby  he  became  a  public 
school  teacher,  which  profession  he  followed 
for  several  years.  Shortly  after  his  arrival  in 
San  Francisco,  he  took  up  the  study  of  law, 
receiving  his  initiation  into  the  mysteries  of 
Blackstone  through  the  tutorship  of  some  of 
the  lights  of  the  bench  and  bar  of  California, 
who  were  prominent  in  the  "seventies."  He 
was  admitted  to  practice  law  by  the  Supreme 
Court  of  the  State  in  August,  1880,  and  has 
followed  the  profession  for  the  past  twent> 
vears. 


History  of  the  Bench  and  Bar  of  California. 


sn 


Mr.  Jarrett  has  been  publicly  recognized  as 
an  organizer  and  political  factor  of  influence 
by  the  Republicans  of  his  district,  who  gave 
him  the  nomination  for  State  senator.  He 
polled  a  highly  complimentary  vote  for  an 
office  he  did  not   seek. 

In  the  conduct  of  legal  practice,  pertaining 
to  matters  affecting  fraternal  and  beneficiary 
insurance  orders,  Mr.  Jarrett  has  proved  a 
successful  practitioner.  In  cases  where  ques- 
tions of  parliamentary  and  fraternal  ethics 
were  before  the  civil  courts  for  adjustment, 
and  where  vital  questions  were  at  stake,  his 
points  of  law  have  generally  been  sustained. 
He  is  a  reliable  authority  on  the  matters 
affecting  the  rights  and  jurisdiction  of  frater- 
nal  associations. 

Mr.  Jarrett  has  been  the  presiding  ofiicer 
of  more  than  twenty  social,  political  and  fra- 
ternal clubs,  societies  and  orders  in  the  past 
twenty  years.  He  held  the  office  of  district 
deputy  grand  master  of  the  I.  O.  O.  F.,  in 
1898,  and  is  at  present  an  active  and  trusted 
officer  of  Golden  Gate  Lodge,  No.  204,  I.  O. 
O.  F.  He  has  been  successful  in  many  im- 
portant, intricate  and  closely  contested  cases 
in  the  civil  and  criminal  practice  of  law,  and 
particularly  in  probate  and  mining  cases,  and 
in  the  adjustment  of  claims.  He  has  a  client- 
age composed  of  some  of  the  most  responsi- 
ble people,  located  all  over  the  Pacific  slope. 


WILLIAM   A.   JOHNSTON. 

William  Allen  Johnston  was  born  in  San 
Jose,  Gal.,  Septemlaer  29,  1856,  of  parents  who 
had  braved  the  dangers  and  privations  of 
crossing  the  plains  in  the  early  days.  He  re- 
ceived his  early  education  in  the  public  schools 
of  San  Jose,  and  graduated  from  the  ll^niver- 
sity  of  the  Pacific  in  June,  1876.  receiving  the 
degree  of  bachelor  of  arts,  and  afterwards  that 
of  master  of  arts  from  the  same  institution. 
He  studied  law  in   the  law  department  of  the 


m  1878,  and  was  admitted  to  the  bar  in  the 
States  of  Michigan  and  California  in  the  same 
year,  being  then  twenty-one  years  old.  Enter- 
ing upon  the  practice  of  the  law  in  San  Jose, 
Gal.,  he  soon  became  associated  in  business 
with  the  Hon.  Thomas  H.  Laine,  who  at  one 
time  was  State  senator,  and  a  member  of  the 
constitutional  convention  of  1879,  one  of  the 
foremost  lawyers  and  orators  of  the  State,  and 
the  Hon.  John  H.  Moore,  at  one  time  County 
Judge,  the  firm  name  being  Moore.  Laine  & 
Johnston.  This  firm  having  a  large  and  select 
clientage,  offered  opportunities  not  always  en- 
joyed by  those  just  setting  out  in  the  practice 
of  the  profession.  These  Mr.  Johnston  recog- 
nized, and  working  early  and  late,  rose  rapidlj 
at  the  bar,  appearing  in  a  number  of  cases  fam- 
ous in  the  history  of  his  county.  Too  zealous 
application  to  his  work,  however,  told  upon  his 
eyes,  and  operations  upon  them  proving  un- 
successful, he  was  compelled  in  the  spring  of 
1883  to  abandon  the  practice  for  a  season  in 
the  hope  of  relief.  In  January,  1884,  he  again 
formed  a  partnership  with  the  Hon.  Thomas 
H.  Laine,  the  firm  name  being  Laine  &  John- 
ston, but  his  eyes  again  failed  him,  and  he  pur- 
chased an  orchard  home  in  the  country,  to 
which  he  retired  in  the  winter  of  1884.  In  1890 
he  had  so  far  recovered  that  he  again,  at  the 
solicitation  of  wealthy  clients  who  sought  him 
out  in  his  coimtry  home,  entered  upon  the 
practice  of  the  law,  which  he  has  since  contin- 
uously   followed. 

Mr.  Johnston  has  not  sought  the  theatrical 
part  of  the  profession,  and.  although  at  an 
earlier  period  he  appeared  in  some  noted  crim- 
inal cases,  yet  for  years  he  has  devoted  him- 
self exclusively  to  the  civil  side  of  the  prac- 
tice. He  is  attorney  for  several  large  corpora- 
tions, and  has  a  select  and  wealthy  clientage. 


ALBERT  F.  JONES. 


AllKTt   F.  Jones,  of  the  bar  of  Butte  county, 
has    practiced    conlinuously    at    Oroville    since 


•'ffln^. 


University  of  Michigan  at  Ann  Arbor,  under 
Judge  Thomas  M.  Cooley,  who  was  then  its 
dean,  receiving  the  degree  of  bachelor  of  laws 


the  I  St  day  of  January,  1880.  Mr.  Jones  is 
a  native  of  Colusa  county,  California,  where 
he  was  born  on  the  I4lh  day  of  February,  1858, 


878. 


History  of  the  Bench  and  Bar  of  California. 


His  father,  George  F.  Jones,  at  that  time  was 
engagea  in  the  cattle  business,  and  in  the  fol- 
lowing year  was  elected  sheriff  of  Colusa 
count)',  an  office  which  he  filled  for  four  years. 

A.  F.  Jones  was  educated  in  the  common 
schools  of  Colusa  county  until  the  year  1864, 
when  he  removed  to  Chico,  in  Butte  county, 
where  he  attended  the  public  schools  when  not 
engaged  in  clerking.  In  1884  he  attended  the 
Golden  Gate  Academy,  and  thereafter  Univer- 
sity Mound  College,  at  San  Francisco,  from 
whence  he  entered  Vale  University,  at  New 
Haven.  Conn.  He  graduated  from  the  law 
department  of  Yale  in  1879.  and  was  then  ad- 
mitted to  practice  in  the  courts  of  Connecti- 
cut. In  July,  1879,  he  was  admitted  to  prac- 
tice in  the  Supreme  Court  of  California,  and 
in  1885  to  the  United  States  Circuit  and  Dis- 
trict Courts. 

Mr.  Jones  was  married  in  1881,  and  has  a 
family  of  three  children.  In  the  early  days 
of  his  practice  he  took  quite  an  interest  in  the 
politics  of  Butte  county  and  of  the  State.  He 
was  elected  district  attorney  in  1882.  and 
served  two  years.  He  was  elected  senator  of 
the  fourth  district  in  1885,  and  served  during 
two  sessions  of  the  legislature,  being  chair- 
man of  the  committee  on  State  prisons  at  the 
first  session,  and  chairman  of  the  judiciary 
committee  in  the  senate  in  the  session  of  1888. 
Since  that  time  he  has  given  his  attention 
almost  entirely  to  the  practice  of  his  profes- 
sion, paying  none  to  politics  except  to  at- 
tend State  conventions,  and  devoting  a  short 
period  at  times  to  public  speaking. 

From  the  beginning  of  his  professional 
career,  Mr.  Jones  has  been  very  successful, 
and  has  a  large  and  remunerative  practice, 
with  a  clientage  not  only  in  Butte  county,  but 
extending  throughout  California  and  in  ad- 
joining States. 

In  addition  to  his  professional  matters,  he 
has  been  prominently  connected  with  busi- 
ness enterprises  in  the  community  in  which 
he  resides,  and  has  found  time  to  attend  to 
fraternal  affairs,  being  a  past  grand  president 
of  N.  S.  G.  W.,  an  officer  of  the  grand  lodge  of 
the  I.  O.  O.  F..  and  a  member  of  the  Masonic 
Order. 


\VILLIA:\I  H.  JORDAN. 

Mr.  Jordan,  speaker  of  the  assembly  in 
1887.  was  born  in  Cincinnati,  Ohio,  on  the  3d 
of  September.  184Q.  His  father  was  a  carpen- 
ter and  farmer.  The  family  has  been  in  Amer- 
ica since  1630,  when  its  progenitor  in  this 
country,  Robert  Jordan,  a  clerg>man  of  the 
Church  of  England,  settled  in  Portland,  Me. 
Mr.  Jordan  came  with  his  father  and  family 
to  California  in  1859,  driving  an  ox  team 
across  the  plains,  and  walking  most  of  the 
journey.  They  settled  on  the  Sacramento 
river,  near  Red  Bluff,  and  our  friend,  then 
ten  years  old.  passed  his  first  winter  in  the 
State  in  driving,  an  ox  team  with  lumber  to  a 
point  on  the  river  for  shipment.  The  great 
flood  of  the  winter  following  C 1860-61)  de- 
stroyed his  father's  property.  His  mother,  too, 
had" died,  and  father  and  son  removed  to  San 


Jose.  The  boy  there  began  making  his  own 
way  in  life,  setting  out  alone  in  quest  of  the 
employment  most  familiar  to  him.  He  found 
it  on  a  farm  near  Pescadero.  After  a  few 
years,  when  he  became  fifteen,  he  went  to  Oak- 
land, with  the  purpose  of  getting  an  educa- 
tion. 

He  had  accumulated  by  ^  his  work  on  the 
farm  $185.  Getting  the  place  of  janitor  in  the 
Brayton  school,  and  that  of  sexton  in  the 
First  Congregational  Church,  he  entered  the 
first-named  institution  as  a  student.  He  had 
been  there  about  one  year  when  he  resolved 
to  make  an  effort  to  enter  the  State  Univer- 
sity, which  was  then  just  being  nut  into  work- 
ing order  on  its  permanent  site  at  Berkeley. 
When  he  nresented  himself  there  he  heard  the 
regents  discussing  a  proposition  to  charge  stu- 
dents an  annual  fee  of  $100.  There  was  a  di- 
vision of  sentiment,  and  one  regent  declared 
his  opinion  that  any  young  man  who  could  noi 
afford  to  pay  $100  a  year  for  his  education 
was  not  worth  educating.  But  just  then,  while 
his  application  was  pending,  he  was,  through 
the  kind  intervention  of  a  friend,  invited  by 
a  benevolent  gentleman  of  Norwich,  Connecti- 
cut, to  go  thither  and  live,  and  attend  the 
Free  Academy  there.  Accepting  the  offer, 
he  attended  that  acadeiny  for  one  year.  He 
then  entered  Vale  College.  This  was  in  1871. 
Mr.  Jordan  remained  at  Vale  but  two  years, 
so  that  his  education,  as  far  as  systematic 
study  in  the  schools  is  concerned,  is  compre- 
hended in  two  years  at  Brayton  in  Oakland, 
a  year  at  the  Norwich  Free  Academy  and  a 
year  at  Yale.  His  withdrawal  from  Yale  was 
enforced  by  failing  health. 

Returning  to  California  in  the  fall  of  1873, 
Mr.  Jordan  went  into  business  at  Oakland, 
organizing  and  managing  the  Real  Estate  Un- 
ion there,  and  afterwards  the  Oakland  Woolen 
Mills.  His  relations  with  the  public-spirited 
capitalist,  Mr.  .A.nthony  Chabot,  were  such  that 
he  obtained  from  that  gentleman  the  donation 
for  the  astronomical  observatory,  and  under 
a  commission  from  Mr.  Chabot.  he  visited  the 
Eastern  states  and  secured  the  glasses  for  the 
telescope,  an  eight-inch  refractor  made  by 
Clark.  He  was  twice  elected  a  member  of 
the  board  of  education  of  the  city  of  Oak- 
land, and  served  as  such  for  four  years,  1881- 
85. 

Mr.  Jordan  was  first  elected  to  the  assembly 
from  Alameda  county,  in  the  fall  of  1884.  Two 
years  later  he  was  re-elected,  and  was  chosen 
sneaker.  He  was  the  unanimous  choice  of  the 
Republican  caucus,  and  was  elected  speaker 
by  a  majority  of  one  vote,  that  being  the 
strength  of  his  narty  in  the  house:  and  he 
presided  much  of  the  session  over  a  Demo- 
cratic body. 

He  maintained  himself  through  the  session 
with  great  dignity  and  capacity,  there  being 
no  whisper  against  the  correctness  of  his  rul- 
ings. It  fell  to  him  at  one  time  to  publicly 
reprimand  one  of  the  assembly  clerks  for  at- 
tempting to  alter  the  position  of  bills  upon 
the  file  This  he  did  by  order  of  the  house, 
and  with  excellent  judgment.  At  the  close  of 
the  session  the  members,  ps  a  delicate  mark 
of    their    personal    esteem    for    him.    i>rcsented 


Johnstone  Jones 


History  of  the  Bench  and  Bar  of  California. 


81^1 


his  wife  with  a  magnificent  pair  of  solitaire 
diamond  earrings,  and  himself  with  a  magnifi- 
cent solid  silver  tea  service. 

By  virtue  of  his  office  of  speaker,  Mr.  Jor- 
dan held  a  seat  in  the  board  of  regents  of  the 
State  University  for  the  years  1887-88.  We 
have  heard  him  speak  of  the  thought  that  was 
uppermost  in  his  mind,  when  he  first  sat  in 
that  learned  body.  What  was  it  ?  It  was  the 
remark  made,  some  sixteen  years  before,  by 
a  regent  in  whose  seat  Mr.  Jordan  now 
rested,  that  a  young  man  who  could  not  af- 
ford to  pay  $100  a  year  for  an  education  was 
not   worth   educating. 

Mr.  Jordan  was  the  first  Grand  Master 
Workman  of  the  A.  O.  U.  W.  in  California, 
and  held  the  office  a  second  term.  He  was 
Supreme  Master  Workman  of  this  great  order 
for  the  year  1888,  the  jurisdiction  extending 
over  the  United  States  and  Canada.  He  then 
made  a  protracted  tour  of  both  countries  in 
the  interest  of  the  order  named. 

It  was  while  returning  from  this  circuit  of 
visitation,  and  at  Cincinnati,  in  1888.  that  he 
learned  that  the  faculty  of  Yale  College  had 
just  given  him  the  degree  of  Master  of  Arts. 
His  two  years  at  Yale  did  not  entitle  him  to 
this  distinction,  under  the  rules,  but  it  had 
been  conferred  upon  him  at  the  request  of  his 
class. 

Mr.  Jordan  has  been  practicing  in  San  Fran- 
cisco since  July,   1885. 


JOHNSTONE  JONES. 

General  Jones  was  born  at  Hillsboro,  Or- 
ange county,  North  Carolina,  September  26, 
1848.  His  father  was  Cadwallader  Jones,  who 
was  a  prominent  lawyer  and  politician,  and 
during  the  Civil  War  colonel  of  the  Twelfth 
South  Carolina  Regiment.  His  mother  was 
Annie  Isabella  Iredell,  daughter  of  Governor 
and  United  States  Senator  James  Iredell,  and 
granddaughter  of  James  Iredell,  one  of  the 
Associate  Justices  of  the  Supreme  Court  of 
the  United  States,  appointed  by  President 
George    Washington. 

On  his  father's  side.  General  Jones  is  lineally 
descended  from  Peter  Jones,  who  founded  the 
city  of  Petersburg,  Virginia,  and  later  Major 
Cadwallader  Jones,  who  served  in  Washing- 
ton's army  as  a  cavalry  officer,  and  also  on  the 
stafi^  of  General  Lafayette.  On  his  mother's 
side,  he  is  lineally  descended  from  General 
Ireton,  who  married  the  sister  of  Oliver  Crom- 
well, and  commanded  Cromwell's  army,  and 
also,  from  John  Alden  and  Priscilla  Mullen, 
and  more  remotely  from  Sir  Cullo  O'Neil,  the 
standard-bearer  of  King  Robert  de  Bruce  of 
Scotland. 

Ihe  General  was  educated  at  the  Hillsboro, 
North  Carolina.  Military  Academy,  in  1862. 
and  the  South  Carolina  Military  .\cademy. 
Columbia.   South   Carolina,   1864. 

In  November,  1864.  at  the  age  of  sixteen 
years,  he  entered  the  service  of  the  Confed- 
erate states,  as  a  volunteer  in  White's  Bat- 
talion. South  Carolina  Cadets.  He  served  in 
Elliot's  Brigade  of  Hardee's  army,  luitil  the 
surrender. 


He  commenced  business  life  in  1865  as 
clerk  in  a  country  store.  Afterwards  Ire  es- 
tablished and  edited  a  country  weekly  at 
Rock  Hill,  South  Carolina,  and  later  owned 
and  edited  the  Charlotte,  North  Carolina.  Ob- 
server, a  daily  newspaper,  from  1871  to  1874. 

He  was  secretary  of  the  North  Carolina 
state  senate  in  1874;  secretary  of  the  consti- 
tutional convention  of  North  Carolina  in  1875; 
representative  of  Buncombe  county  in  the  leg- 
islature of  1885,  and  for  twelve  years,  from 
1877  to  1889,  was  adjutant-general  of  North 
Carolina,  having  been  successively  appointed 
by  three  Governors — Zebulon  B.  Yance, 
Thomas  J.  Jarvis  and  Alfred  H.  Scales. 

He  took  an  active  part  in  national  guard 
matters  during  all  the  period  of  his  incum- 
bency of  the  office  of  adjutant-general,  and 
was  vice-president  of  the  National  Guard  As- 
sociation of  the  United  States  for  a  number  of 
years. 

Owing  to  the  ill  health  of  his  wife  (nee 
Elizabeth  W.  Miller  of  Wilmington.  North 
Carolina,  to  whom  he  was  married  in  1873) 
he  removed  to  San  Diego,  California,  in  Aug- 
ust, 1889,  and  entered  upon  the  practice  of  the 
law  in  partnership  with  James  E.  Wadham,  a 
prominent  young  attorney  of  the  San  Diego 
bar. 

At  the  general  election  in  November,  1890, 
the  year  following  his  arrival  in  San  Diego, 
he  was  elected  district  attorney  of  San  Diego 
county. 

On  November  i,  1893,  he  removed  to  Los 
Angeles,  where  he  has  been  engaged  in  the 
practice    of   the    law    ever    since. 

In  1896  he  was  nominated  by  the  Democrats, 
Silver  Republicans,  Populists  and  Labor  Party 
for  the  State  senate  from  the  Thirty-seventh 
senatorial  district,  and  was  defeated "bv  Hon. 
R  .N.  Bulla. 

In    1898  the   General   came   out    for   the   Re-  , 
publican  ticket,  taking  the  stump  for  Gage  for  ' 
Governor   and   Waters    for   congress.      He   be- 
lieves in  the  policy  of  expansion,  and  voted  for 
President   McKTnley   in    lyoo. 

In  1899  he  was  appointed  assistant  district 
attorney  of  Los  Angeles  couiuy  by  Hon.  J.  C. 
Rives,  district  attorney,  which  office  he  still 
holds. 

(ieneral  Jones  acquired  his  legal  education 
while  serving  as  deputy  clerk  of  the  Supreme 
Court  of  North  Carolina,  in  1868,  1869,  1870. 
In  his  twentieth  year  he  was  admitted  to  the 
bar  in  his  native  state,  in  i860.  He  was  ad- 
mitted to  the  bar  of  the  Supreme  Court  of  the 
United  Slates  December  17,  1885;  to  tlie  bar 
of  San  Diego,  on  motion  of  E.  W.  Britt.  Sep- 
tember II.  i88(j:  to  the  bar  of  the  Supreme 
Court  of  California.  October  19.  lS()i.  and  to 
the  L'liited  States  District  Court.  March  u. 
18.,.'. 

When  the  war  with  Sp.iin  opened  General 
Jones,  in  ten  days,  raised  a  full  regiment  of 
men  in  Los  .\ngeles  and  adjoining  counties, 
and  was  elected  its  colonel.  He  otTered  him- 
self and  the  regiment  to  the  government,  but, 
not  being  needed,  they  were  not  nni^tered  iiUo 
ser\ice. 


882 


History  of  the  Bench  and  Bar  of  California. 


ALBERT  H.  JUDSON. 

Albert  11.  Judson  was  t)i)rn  in  Portland, 
Chautaiiqna  count}-.  New  York,  in  September, 
1838.  He  received  an  academic  education  at 
P"redonia,  in  that  .state,  and  for  a  time  fol- 
lowed teaching  and  civil  engineering,  but  sub- 
sequently studied  law  and  was  admitted  to  the 
bar  by  the  Supreme  Court  of  his  native  state 
in  May,  1861.  He  soon  after  commenced 
practice  in  Fredonia,  and  has  l)een  in  active 
practice  over  thirty  years. 

He  came  to  California  in  1871,  settling  first 
at  San  Leandro,  the  county  seat  of  Alameda 
county,  where  he  practiced  law  and  at  the 
same  time  had  editorial  charge  of  the  Alameda 
County  Ga::ctte.  He  moved  to  Los  Angeles 
in  1873.  Here  he  opened  a  law  office,  and  soon 
organized  an  abstract  and  title  company,  un- 
der the  firm  name  of  Judson  &  Fleming, 
which  was  shortly  succeeded  by  that  of  Jud- 
son &  Gillette.  Subsequently  Mr.  F.  A.  Gib- 
son, now  cashier  of  the  First  National  Bank 
of  Los  Angeles,  became  a  member  of  the 
firm,  which  now  took  the  name  of  Judson, 
Gillette  &  Gibson,  which  became  a  leading  con- 
cern in  Southern  California  in  all  matters 
relating  to  abstracts  and  certificates  of  title. 
Mr.  Judson  inaugurated  the  practice  of  issuing 
certificates  of  title  in  place  of  abstracts  and 
opinions  thereon.  Now  the  certificates  of  title 
are  in  almost  exclusive  use.  The  firm  of  Jud- 
son, Gillette  &  Gibson  did  a  large  and  profit- 
able business  for  many  years,  Mr.  Judson  re- 
tiring from  the  firm  in  1885,  but  remaining 
as  its  legal  adviser  until  1887.  He  then 
abandoned  the  law  for  a  time  in  order  that  he 
might  give  his  entire  attention  to  the  manage- 
ment of  several  corporate  enterprises  of  which 
he  was  president,  and  in  which  he  was  largely 
interested,  notably,  the  Los  Angeles  Packing 
Company,  the  Los  Angeles  Cemetery  Coinpany, 
the  Hemet  Land  Company,  the  Hemet  Water 
Company,  and  many  others.  He  was  at  one 
period  a  heavy  operator  in  real  estate  in 
Southern  California,  and  his  name  was  a  very 
frequent  one  on  the  records  of  Los  Angeles 
and   adjoining   counties    for   many   years. 

Mr.  Judson  was  in  1881  a  candidate  on  the 
Republican  ticket  for  Superior  Judge,  and, 
though  he  ran  largely  ahead  of  his  ticket,  he 
failed  to  overcome  the  heavy  Democratic  ma- 
jority of  those  days.  Mr.  Judson  was  also  a 
candidate  in  1879  for  city  attorney  of  Los 
Angeles.  Ijut  the  entire  Rcpul)lican  ticket  was 
beaten. 

The  title  business  heretofore  alluded  to  was 
subsequently  merged  in  what  is  now  known 
as  the  Title  Insurance  and  Trust  Co.  Mr. 
Judson  has  never  been  an  active  politician. 
The  following  is  taken  from  a  newspaper  pulj 
lished  in  Los  Angeles  city  at  the  time  Mr. 
Judson  was  a  candidate  for  Superior  Judge : 

"As  a  lawyer  Mr.  Judson  is  held  in  high 
estimation  "bv  a  numerous  clientage  who  value 
a  well-considered  opinion.  His  private  life  is 
as  pure  and  blameless  as  his  business  career 
has  been  honorable  and  useful.  He  has  qual- 
ities that  admirably  fit  him  for  the  bench, 
.among    thcni    a    broad,    liberal    and    expansive 


mind,  a  judicial  habit  of  thought  and  a  thor- 
ough knowledge  of  the  law.  Mr.  Judson 
has  always,  when  in  practice,  given  special  at- 
tention to  the  laws  bearing  on  real  estate  ti- 
tles,  water   rights,  mines  and   corporations." 

Mr.  Judson  was  married  in  1867  to  Sarah 
Fairman,  of  Elmira,  N.  Y.,  by  whom  he  had 
seven  children.  Three  of  them  survive.  He 
is  in  religion  independent,  with  a  leaning  to- 
wards Unitarianism. 


FRANK  P.  KELLY. 

Mr.  Kelly  was  born  January  7th,  1854,  in 
the  city  of  Philadelphia,  Pa.  He  began  life  as 
an  errand  boy  in  H.  G.  Leisenring's  printing 
office  in  that  city.  He  then  began  to  learn  the 
I)rinter's  trade.  He  moved  to  Sacramento, 
Cal.,  in  March,  1867.  There  he  finished  the 
trade  in  H.  S.  Crocker's  printing  office.  In 
Sacramento  he  engaged  in  literary  pursuits. 
He  was  a  reporter  at  the  age  of  twenty.  Re- 
moving to  Tehama  he  became  owner  and  ed- 
itor   of    the    Tehama     Tocsin,    from     1878    to 


1882.  He  moved  to  Santa  Barbara  in  1883  and 
became  editor  of  the  Santa  Barbara  Press.  In 
the  next  year  he  was  in  Los  Angeles  managing 
the  Daily  Evening  Republican.  He  was  man- 
aging editor  of  the  Evening  Express  of  Los 
Angeles  later  in   1884. 

Mr.  Kelly  was  admitted  to  practice  law  in 
Los  Angeles  in  September,  1884.  He  was  as- 
sistant city  attorney  of  that  city  under  Hon. 
J.  W.  McKinley,  1885-6.  He  was  elected  Dis- 
trict Attorney  in  November,  1888,  for  Los 
Angeles  counts  and  served  with  distinction 
for  the  term  of  two  years.  There  were  270 
convicts  sent  to  the  different  State  prisons 
during  his  term,  a  greater  number  than  ever 
before  or  since  in  the  same  length  of  time. 
Mr.  Kelly  is  well  and  favorably  known  as  an 
eloquent  and  forcible  speaker,  both  on  the 
rostrum  and  before  a  jury.  He  moved  to  San 
Francisco  in  January,  180^  to  take  the  position 
of  attorney  in  all  criminal  cases  for  the  South- 


History  of  the  Bench  and  Bar  of  California. 


883 


ern  Pacific  Company  and  the  Market  Street 
Railway  Company  in  the  City  and  County  of 
San  Francisco.  This  position  he  still  holds. 
He  is  a  man  of  energy  and  a  large  part  of  his 
success  in  life  is  due  to  his  ability  to  act 
quickly  and  close  up  the  business  entrusted  to 
him. 

A  more  extended  notice  of  Mr.  Kelly,  with 
a  fine  portrait,  appears  in  the  "Ilhistrated  His- 
tory of  Los  Angeles  County"    (1889). 


WILLIAM  T.  KENDRICK. 

William  T.  Kendrick,  of  the  Los  Angeles 
bar,  was  born  in  Palestine,  Texas,  June  11, 
1854.  He  was  educated  in  Kentucky  Univer- 
sity, at  Lexington,  Ky.  He  was  admitted  to 
practice  in  the  Supreme  Court  of  California 
in  1879,  and  at  once  began  the  practice  of  the 
law  in  Oakland.  He  opened  an  office  in 
Los  Angeles  in  1882,  and  since  that  time 
has  continued  there  in  the  active  practice  of 
his  profession.  Many  of  the  most  import- 
ant cases  in  that  and  adjoining  counties  have 
been  conducted  by  him,  as  appears  from  the 
Supreme  Court  reports  of  this  State. 

He  is  a  man  of  family,  having  a  wife  and 
six  children. 

Mr.  Kendrick  was  in  partnership  with  that 
old  veteran  of  the  Los  Angeles  bar,  J,  B. 
Hollaway,  now  retired,  for  eieht  years.  He 
is  at  present  associated  with  W.  S.  Knott,  a 
nephew  of  ex-Governor  J.  Procter  Knott,  of 
Kentucky. 


S.   V.   LANDT. 


Sanford  V.  Landt  was  born  in  Herkimer 
county.  New  York.  The  first  thirteen  years 
of  his  life  were  spent  on  his  father's  farm 
there,  with  plenty  of  work,  and  little  time 
at  the  common  country  school.  The  following 
year,  by  the  death  of  his  father,  he  was  thrown 
upon  his  own  resources,  and  with  his  earnings 
as  a  farm  laborer  during  the  summer  months, 
he  attended  school  during  the  winter.  At  the 
age  of  sixteen  years  he  secured  the  necessary 
certificate  of  qualification,  and  for  the  four 
following  months  taught  school  and  supple- 
mented his  salary  as  teacher  by  what  he  could 
earn  at  farm  labor  in  harvest  time.  He  thus 
covered  the  necessary  exi)ensc  of  his  fall  and 
spring  studies  at  Fort  Edward  Institute,  in 
Washington  county,  New  York.  The  next 
four  years  he  studied  law  in  the  city  of  Al- 
bany as  a  student  in  the  office  of  Hon.  Lyman 
Tremain  and  Rufus  W.  Pcckham,  the  latter 
now  Justice  of  the  United  States  Supreme 
Court,  and  at  the  Albany  Law  School.  He 
was  admitted  to  practice  in  New  York  state 
in  1865.  In  1867  he  removed  to  the  slate  of 
Iowa,  locating  at  Tipton,  in  Cedar  county,  and 
became  law  partner  of  the  Hon.  William  P. 
Wolf.  There  lie  continued  in  the  active  pr;u-- 
tice  of  his  profession  as  member  of  the  well- 
known  law  firm  of  Wolf  &  Landt  until  1887, 
when  he  removed  to  Los  Angeles,  California. 

Although  he  never  sought  political  position. 
Mr.  Landt  held  the  nf'fice  of  mayor  of  the  eil.\- 


of  his  residence  in  Iowa,  being  elected  to  that 
place  in  1876  by  a  large  majority.  He  was 
elected  in  1877  and  again  in  1878,  the  two  last 
terms  b\'  unanimous  vote  of  the  people,  no  op- 
position candidate  being  put  in  nomination  by 
either  party.  He  was,  for  the  ten  last  years 
of  his  residence  in  Iowa,  chairman  of  the 
county  central  commitee  of  his  party  (Re- 
publican). 

In  September,  1868,  Mr.  Landt  married  Miss 
Bertha  Brouse,  first  cousin  of  Bishop  Albert 
Cameron  of  Canada.  Mrs.  Landt  was  well 
known  in  Los  Angeles,  as  well  as  at  her  Iowa 
home,  for  her  noble  deeds  of  charity,  as  well 
as  church  work.  She  was  one  of  the  first  to 
assist  in  the  work  of  organizing .  St.  John's 
Parish,  Los  Angeles,  its  incorporation  being 
accomplished  at  her  residence.  She  died  in 
that  city.  May  .31.  1897,  leaving  a  son,  Edward 
B.  Landt,  and  a  daughter,  Katherine  C.  Landt, 
both  still  residing  with  their  father  at  2131  Es- 
trella  avenue^ 

E.    O.    LARKINS. 

Elwood  01i\er  Larkins  has  been  actively 
engaged  in  the  practice  of  law  since  1886, 
residing  at  Visalia.  His  professional  business 
has  comprised  much  of  the  heavy  litigation 
of  the  San  Joaquin  Valley,  although  confined 
mostlv    to    civil    cases.      His    specialties    are 


water  rights  and  land  titles.  Of  late  he  has 
be(;n  occupied  with  cases  in  the  State  and 
Federal  courts  involving  title  to  pelroleiun 
oil  locations.  Although  he  has  devoted  him- 
self industriously  to  his  profession,  he  has 
taken  considerable  interest  in  politics,  being 
an  enthusiastic  Rei)ublican,  and  having  stumped 
the  northern  part  of  this  slate  for  Senator 
(ico.  C.  Perkins  when  he  was  a  candidate  for 
Governor.  lie  has  taken  part  in  nearly 
every  campaign  since  that  time,  m.iking  a 
harxl  fight  for  President  McKmlev  in  i8<)6- 
He  is  a  director  in  the  Hank  of  \'isalia.  and 
has  considerable  business  interests  in  and 
around  thai  city.  At  the  last  Republican 
state  convention,  held  at  Sacramento  in  1898, 
lie  pl.iced  in  nomination  the  Hon.  M    J,  Wrigiit 


884 


History  of  the  Bench  and  Bar  of  California. 


for  Surveyor-General.  He  has  served  in  the 
state  conventions  on  important  committees  at 
various  sessions.  He  is  a  Mason  and  Odd  Fel- 
low in  high  standing,  and  takes  great  interest 
in  educational  affairs,  having  been  recently  ap- 
pointed one  of  the  Educational  Commissioners 
by  Benjamin  Ide  Wheeler,  David  Starr  Jor- 
dan and  the  Superintendent  of  Public  In- 
struction, to  meet  at  San  Francisco  for  the 
discussion  of  educational  matters  of  concern 
in  the  State. 

Mr.  Larkins  was  born  in  East  Liverpool, 
Ohio,  on  December  i6,  1854:  graduated  at 
the  State  Normal  School  at  Kirksville,  Mo., 
in  1876;  came  to  California  in  1876,  and  en- 
gaged in  the  profession  of  teaching  for  several 
years,  during  which  time  he  was  principal  of 
several  important  schools.  He  is  the  son  of 
J.  B.  Larkins,  whose  father  married  Mary 
Oliver,  a  native  of  Pennsylvania,  and  a  rela- 
tive of  Oliver  T.  Morton.  William  Larkins, 
grandfather  of  J.  B.  Larkins  came  from 
England  at  an  early  day.  and  fought  on  the 
American  side  in  the  War  of  1812.  In  1880 
Elwood  O.  Larkins  (or  E.  O.  Larkins,  as 
he  is  commonly  called)  married  Miss  Sallie 
C.  Calloway,  of  Waverly,  Mo.,  who  is  a  de- 
scendant of  the  Boone  family  of  Kentuckv. 
and  who  is  closely  related  to  the  Hardins  of 
that  state.  Her  father's  sister  married  a 
cousin  of  Robert  E.  Lee.  The  Sebring  Bros., 
of  Sebring,  Ohio,  who  are  extensiveh-  en- 
gaged, in  the  manufacture  of  chinaware,  fa- 
mous throughout  the  United  States,  are 
cousins  of  the  subject  of  this  sketch.  For  a 
short  time  Mr.  Larkins  was  engaged  in  the 
practice  of  law  with  Hon.  J.  F.  Wharton,  in 
Fresno,  and  later  for  many  years  with  the 
Hon.  Tipton  Lindsey  of  Visalia.  but  he  is  now 
alone  in  the  practice,  his  former  partners 
both  being  dead. 

ARTHUR  L.  LEVINSKY. 

.\rthur  L.  Levinsky  was  born  in  Jackson, 
Amador  county.  California,  on  July  9th,  1856. 
He  was  educated  in  this  State,  in  the  public 
schools,  and  thereafter  entered  info  commer- 
cial life,  first  as  book-keeper,  and  then  as  one 
of  California's  earliest  commercial  travellers. 
In  1882  he  began  the  study  of  law  and  was 
admitted  to  the  Supreme  Court  of  this  State 
on  August  5th.  1885.  Since  that  time  he  has 
been  fngaged  in  much  of  the  most  important 
litigation  before  our  courts,  both  State  and 
Federal  :  and  in  this  connection,  it  is  most 
apparent  that  Mr.  Levinsky  has  never  followed 
well-beaten  tracks,  but  rather,  has  opened  up 
many  new  legal  avenues  in  his  practice,  varied 
as  it  is.  including  commercial,  criminal,  pro- 
bate and  corporation  law,  in  all  of  which  he 
has  been   most   successful. 

Mr.  Levinsky  was  the  first  attorney  in  our 
State  who  obtained  a  decision  of  our  Supreme 
Court  declaring  the  difference  between  an 
"elector"  and  a  "voter."  which  remained*  un- 
determined for  many  years,  until  the  proposi- 
tion was  argued  by  him.  and  which  has  been 
a  much-quoted  decision  since  that  time. 

He  for  many  years  was  a  member  of  the 
well-known    law    firm    of    Louttit,    Woods    & 


Levinsky,  and  since  January.  1894,  has  been 
one  of  the  members  of  the  firm  of  Woods  & 
Levinsky,  who  are  the  legal  representatives 
of  many  of  the  largest  interests  in  this  State, 
including  the  Alameda  &  San  Joaquin  Rail- 
road Company,  the  Sierra  Railroad  Company 
of  California,  the  California  Navigation  and 
Improvement  Company.  P.  A.  Buell  &  Com- 
pany. Stockton  Electric  Railroad  Company,  the 
Standard  Electric  Company  of  California,  the 
Stockton  Savings  Bank,  the  Santa  Fe  Pacific 
Railway  Company,  and  many  other  large  local 
interests  in  San  Joaquin  county;  and  he  is 
also  the  local  representative  of  Carter,  Llnghes 
&   Dwight.   of   New   York   City. 

His  business  is  not  confined  solely  to  the 
county  of  San  Joaquin,  but  extends  through- 
out the  entire  State.  He  is  courageous,  faith- 
ful and  zealous  in  behalf  of  his  clients  at 
all  times,  though  always  conceding  to  his  op- 
ponents their  just  dues.  It  is  well  known  that 
when  he  undertakes  a  case  or  represents  any 


w 


interest,  large  or  small,  so  long  as  his  cli- 
ent's demand  is  just,  he  can  be  found  stand- 
ing by  his  client  to  the  end  of  litigation, 
whether  his  client  is  possessed  of  means  or 
not,  strict  attention  to  business  and  tenacity 
of  purpose  being  his  motto. 

While  he  has  had  many  opportunities,  polit- 
ically speaking,  with  the  exception  of  having 
been  city  attorney  of  the  city  of  Stockton,  he 
has  never  allowed  his  name  to  be  used  for 
office,  though  his  voice  is  often  heard  in  the 
furtherance  of  the  principles  of  the  Republican 
party,  and  he  is  well  and  most  favorably  known 
throughout  California. 

Of  Mr.  Levinsky  it  may  well  be  said  that 
he  holds  a  high  place  in  the  respect  of  his 
fellow  citizens  as  a  worthy  adviser  and  coun- 
sellor at  law.  and  as  a  strictly  honorable,  pub- 
lic-spirited citizen  whose  efforts  and  ability 
can  always  be  depended  upon  for  the  promo- 
tion of  the  best  interests  of  San  Joaquin 
county,  and  California  in  general. 


Bradner  W,  L 


ee 


History  of  the  Bench  and  Bar  of  California. 


887 


BRADxXER  W.  LEE. 

Bradncr  Wells  Lee  is  a  native  of  Living- 
ston county.  New  York.  He  was  born  May 
4,  1850.  His  father  was  David  Richard  Lee. 
and  his  mother  was  Elizabeth  Northruni 
Wells.  He  is  descended  through  his  father 
from  Nathaniel  Lee,  who  settled  at  Fishkill, 
New  York,  in  1725,  whose  eldest  son,  Thomas, 
.was  a  distinguished  officer  in  the  Revolution- 
ary War,  the  latter's  sons  being  commissioned 
officers  in  the  War  of  1812.  Through  his 
mother,  Mr.  Lee  comes  from  Hugh  Welles, 
who  was  one  of  the  first  settlers  of  Hart- 
ford, Connecticut. 

When  Hon.  G.  Wiley  Wells,  recently  of 
Los  Angeles,  was  United  States  attorney  for 
the  northern  district  of  Mississippi,  Mr.  Lee, 
who  is  that  gentleman's  nephew,  began  the 
study  of  law  in  his  office,  in  1871.  He  came 
to  California  and,  settled  at  Los  Angeles,  in 
iH/g,  and  was  admitted  to  the  bar  by  the 
Supreme  Court  of  this  State.  He  became  .i 
partner  of  ex-Judge  Brunson  and  of  his  uncle 
just  mentioned,  under  the  firm  name  of  Brun- 
son, Wells  &  Lee.  When  Judge  Brunson  re- 
tired, Walter  Van  Dyke,  now  Associate  Jus- 
tice of  the  Supreme  Court,  took  his  place,  the 
firm  being  Wells,  Van  Dyke  &  Lee.  In  1896 
he  became  associated  with  Hon.  John  D. 
Works,  under  the  name  of  Works  &  Lee. 
This  firm,  which  still  exists,  has  been  a  lead- 
ing one  and  very  prosperous  ever  since  its  for- 
mation. 

The  firm  has  in  its  office  the  well-selected 
library  of  Colonel  G.  W.  Wells,  of  over  6,000 
volumes.  Mr.  Lee,  who  has  come  to  be  an 
experienced  lawyer  in  all  kinds  of  cases,  is 
devoted  to  his  profession.  I  f  he  has  had  any 
specialties,  they  have  been  in  the  line  of  pro- 
bate and  corporation  law. 

He  has  never  held  office,  but,  in  1896,  in 
1898,  and  again  in  1900,  was  chairman  of  the 
Republican  county  committee.  He  was  elected 
by  the  legislature  in  1897  one  of  the  trustees 
of  the  Stale  Library.  He  has  belonged  to  the 
Los  Angeles  Chamber  of  Commerce  since 
1894,  and  a  member  of  the  law  committee  of 
that  body.  He  is  director  and  treasurer  of 
the  California  Society  of  the  Sons  of  the  Rev- 
olution, a  charter  member,  and  now  historian, 
of  the  Society  of  Colonial  Wars  in  the  State 
of  California,  and  vice-commander  of  the  Cal- 
ifornia Commandery  of  the  Military  Order  of 
Foreign  Wars  of  the  United  States;  also,  a 
member  of  the  Jonathan  Clnh.  and  (if  tin-  Mys- 
tic  Shrine. 

Mr.  Lee  married  Miss  Helena  l-'arrar  at 
Philadelphia  in  1883.  Her  father,  now  de- 
ceased, was  Colonel  William  llumphrey  I'ar- 
rar,  of  Washington,  D.  C,  a  iironiiiunt  law 
yer  of  his  time,  who  studied  law  with  Daniel 
Webster  and  Caleb  Gushing.  They  have  two 
children,  Bradner  Wells  Lee.  Jr.,  and  Ken 
yon  Farrar  Lee. 

Mr.   Lee  was  urged  by  many  of  the  iinmii 
nent   attorneys   at    Los   .\ngeles   to   accept    the 
nomination    for    Su])erior   Judge   at    the   cani- 
paign  of  1900,  but  declined,  preferring  his  pri- 
vate practice  to  a  place  on  the  bench. 


T.   L.   LEWIS. 

Hon.  T.  L.  Lewis,  district  attorney  of  San 
Diego  county,  was  born  on  a  small  farm  in 
Crawford  county,  Pennsylvania.  When  he 
was  about  two  years  of  age  his  parents  emi- 
grated to  the  then  new  State  of  Illinois  and 
settled  in  McHenry  county,  about  >ixty  miles 
northwest  of  Chicago.  His  father  was  a 
farmer,  and  the  son  spent  the  earlier  years  of 
his  life  and  until  twenty-one  on  a  farm.  In 
1863  his  parents  removed  from  Illinois  to 
Iowa,  making  the  trip  across  the  country  in 
covered  wagons,  and  settled  in  Jasper  county. 
Again,  in  1869,  they  inovcd  westward  and  lo- 
cated in  Richardson  county.  Nebraska,  on 
a  farm.  During  the  earlier  years  of  his  life 
our  subject  worked  steadily  on  the  home 
farm,  attending  the  common  public  schools  in 
winter  for  a  period  of  three  months  each  year. 
Upon  reaching  his  majority,  he  was  fortunate 
enough  to  secure  a  position  as  teacher  of  a 
common  school  in  Nebraska  near  the  home  of 
his  parents.  After  teaching  a  single  term  of 
three  months,  in  1872,  he  entered  the  Ne- 
braska State  Normal  School,  then  and  now 
located  at  Peru.  He  had  no  means  with  which 
to  pay  his  expenses  at  school,  except  what  he 
earned  by  working  in  the  harvest  fields  dur- 
ing vacations,  and  teaching  in  the  public 
schools  when  his  funds  gave  out.  In  this 
manner  he  finished  a  three  years'  course  at 
the  Normal  School  of  Nebra.ska,  graduating 
from  that  institution  in  June,  1877.  The  fol- 
lowing year  he  taught  in  the  public  schools  of 
Nebraska,  but  concluding  not  to  follow  teach- 
ing as  a  profession,  he,  in  the  fall  of  1878. 
entered  the  law  department  of  the  Iowa  State 
University  at  Iowa  City.  From  that  institu- 
tion he  was  graduated  in  June.  1879.  After 
receiving  his  diploma  and  being  admitted  to 
practice  in  the  Supreme  Court  of  Iowa  and 
in  the  Federal  Courts,  he  returned  to  Ne- 
braska. On  reaching  Omaha  in  July,  1879. 
he  found  his  finances  reduced  to  the  sum  of 
seventy-five  cents,  and  this,  with  his  personal 
effects,  constituted  his  entire  i)r(>])erty.  In 
order  to  replenish  his  ])urse  he  spent  six  weeks 
in  working  at  manual  labor  in  the  harvest 
fields.  In  the  fall  of  that  year,  1870,  he  secured 
employment  as  a  teacher  in  a  village  school  in 
Douglas  county,  Nebraska.  .After  teaching  for 
one  year,  he.  in  October.  1880,  formed  a  law 
partnershii)  with  W.  V..  Drury  at  Decatur  in 
Burt  county.  Nebraska.  .About  one  year  later 
he  removed  to  Oakland,  in  the  same  county, 
wliere  he  formed  a  partnership  for  the  r>rac- 
lice  of  his  jjr.ofession  with  W'.'itson  Parrish. 
In  the  latter  part  of  1885  the  partnership  with 
Mr.  Parrish  was  dissolveil  by  mutual  consent, 
Mr.  Parrish  removing  from  the  State  of  Ne- 
liraska.  and  Mr.  Lewis  continued  the  jiraclice 
111'  l.iw  at  0.akl;ind  until  January.  1888. 

W'iiile  engaged  in  the  practice  of  his  |>ro- 
fession  at  the  last  named  place  Mr.  Lewis  was. 
.It  the  general  State  election  of  1884.  elected 
Id  re|iri'sent  Hint  and  Washington  counties 
in  tile  Nebraska  State  Senate.  In  l88<)  he 
was  elected  prosecuting  attorney  of  Riirt 
county.  Nebraska,  for  a  term  of  two  years. 
but  after  serving  one  year  he  resigned  the 
office  and   removed   to   California,   and   settled 


888 


History  of  the  Bench  and  Bar  of  California. 


in  San  Diego,  where  he  has  ever  since  re- 
sided. Upon  locating  in  San  Diego  in  Janu- 
ary, 1888.  he  at  once  entered  upon  the  prac- 
tice of  the  law,  and  has  continued  in  active 
practice  continuously  since.  He  has  served  as 
deputy  district  attorney  of  San  Diego  county 
for  a  term  of  two  years,  and  as  deputy  city 
attorney  for  the  city  of  San  Diego  for  a  term 
of  four  years. 

At  the  general  election  in  1898  Mr.  Lewis 
was  elected  district  attorney  of  San  Diego 
county  for  a  term  of  four  years,  which  office 
he  is  now  holding.  In  his  politics  he  has  al- 
wavs    been    a    Republican. 

On  January  21st,  1886,  he  was  married  to 
Miss  Mary  Fullen.  of  Tckania.  Burt  county, 
Nebraska,  and  he  has  three  children.  He  is 
domestic  in  his  habits,  and  spends  much  of 
his  time,  out  of  office  hours  with  his   familv. 


MAX  LOEWENTHAL. 

Max  Loewenthal  was  born  October  15.  1858, 
at  Inowrazlav,  Germany.  He  came  to  Cali- 
fornia in  1868.  and  received  his  early  education 
in  the  public  schools  of  Sacramento.  He  was 
graduated  from  the  University  of  California, 
with  the  degree  of  A.  B.,  in  1881 ;  and  from 
Hastings'  College  of  the  Law-  in  1884.  He 
was  admitted  to  the  bar  in  1884,  and  practiced 
for  two  years  in  San  Francisco.  He  located 
at  Los  Angeles  in  1886,  and  has  always  prac- 
ticed  there. 

Mr.  Loewenthal's  father  and  grandfather 
were  rabbis  of  the  Jewish  church.  His  father 
was  for  eleven  years  at  Sacramento  in  charge 
of  the  Jewish  congregation,  and  the  same 
period  of  time  at  San  Jose. 

Mr.  Loewenthal  was  married  at  Los  Angeles 
in  1890,  to  Miss  Laura  Meyer,  daughter  of  one 
of  the  oldest  and  most  respected  business  men 
of  that  city.  His  family  now  consist  of  his 
wife  and  one  child,  a  bov  of  nine  years,  named 
Paul. 

Mr.  Loewenthal's  practice  has  been  of  a  gen- 
eral civil  and  corporation  character.  In  1890, 
when  Mr.  Loewenthal  had  been  in  practice  in 
Los  Angeles  but  a  few  years,  he  was  nom- 
inated for  Superior  Judge  by  the  Democrats 
and  suffered  defeat  with  the  rest  of  his  ticket. 
He  is  not  a  politician  in  any  real  sense, 
though  he  takes  an  active  interest  in  affairs 
of  state. 

EDWARD  MARTIN. 

Mr.  Martin  is  one  of  the  highest-credited 
citizens  of  the  most  beautiful  and  resourceful 
county  of  Santa  Cruz.  He  was  born  in  Eng- 
land, his  father  being  Dr.  John  Martin.  He 
came  to  California  in  1851.  A  picturesque 
incident  of  his  life-record  is  his  plowing  the 
first  furrow  in  the  rich  Pajaro  valley.  After- 
wards he  had  a  bookstore  and  stationery  busi- 
ness in  Watsonville,  and  held  the  offices  of 
notary  public  and  postmaster.  He  there  ac- 
quired a  home  and  was  united  in  marriage  to 
Miss  Emmeline  Risdon,  of  New  York.  He 
has  been  living  in  Santa  Cruz  city  since  1884, 
when    he    entered    upon    the    office    of    county 


clerk,  auditor  and  recorder.  He  held  this  by 
successive  re-elections,  until  January  i,  1899. 
He  had  been  admitted  to  the  bar  by  the  Su- 
preme Court  in  September,  1898,  and  began 
the  practice  of  law  on  leaving  official  life.  He 
holds,  by  the  appointment  of  United  States 
District  Judge  DeHaven,  the  position  of 
referee  in  bankruptcy. 

Mr.  Martin  was  a  member  of  the  last  con- 
stitutional  convention,   1878. 

Mr.  Martin  is  well  versed  in  Latin,  French 
and  Spanish,  and  has  written  considerably  in 
the  line  of  historical  sketches  and  humorous 
stories,  some  of  which  are  preserved  in  the 
"History  of  Santa  Cruz  County,"  by  E.  S. 
Harrison    (1892). 

Mr.  and  Mrs.  Martin  have  a  fine  home  on 
Camino  del  Rey,  Santa  Cruz.  Their  children 
are  grown  up — two  sons  and  a  daughter. 


C.  C.  McCOMAS. 


Charles  Carroll  McComas,  the  veteran  pub- 
lic prosecutor  of  Los  Angeles  county,  was  born 
on  his  father's  farm  in  Jasper  county,  Illinois, 
August  10,  1846.  His  parents  died  when  he 
was  a  child.  He  was  living  in  Decatur, 
Illinois,  supporting  himself  bv  work,  when 
the  Civil  War  opened,  in  1861.  In  the  follow- 
ing j'ear  he  enlisted  in  the  One  Hundred  and 
Fitteenth  Illinois  Volunteer  Infantry  when  he 
was  not  quite  sixteen  years  old,  and  was  mus- 
tered in  as  a  corporal  in  Company  F.  He 
served  to  the  close  of  the  war,  taking  part  in 
all  of  the  many  battles  in  which  his  regiment 


fought.  His  gallantry  in  action  constantly  at- 
tracted attention.  After  the  battle  of  Resaca. 
in  Northern  Georgia,  he  was  promoted  to  first 
sergeant,  and  later  to  first  lieutenant.  At 
Chickamauga  he  was  in  the  hard  fighting  on 
Snodgrass  Hill.  Out  of  every  hundred  sol- 
diers on  that  field  the  killed  and  wounded 
numbered  forty-nine.  He  was  himself  struck 
bv  a  minnie  ball,  and  his  life  was  saved  by  a 
piece  of  a  dictionary  which  he  had  in  his 
pocket. 


History  of  the  Bench  and  Bar  of  California. 


R!^9 


When  the  war  was  over  the  young  soldier, 
then  only  nineteen,  went  to  his  home  town, 
Decatur,  and  engaged  in  practice,  at  the 
same  time  pursuing  the  study  of  law.  His 
reading  was  done  at  night.  Afterwards  he  at- 
tended a  course  of  law  lectures  at  the  Uni- 
versity of  Michigan.  He  had  won  the  close 
friendship  of  Colonel  Jessse  H.  Moore,  the 
commander  of  his  regiment,  and  now  Colonel 
Moore  secured  for  hun  a  conhdcntial  position 
in  the  office  of  Hugh  Crea,  a  prominent  law- 
yer, and  under  the  latter's  supervision  he  fin- 
ished his  law  studies.  He  was  admitted  to  the 
bar  m  1869,  and  began  practice  at  Decatur.  In 
1870  he  was  elected  state's  attorney  for  four 
years.  In  November,  1870,  he  married  a  daugh- 
ter of  Colonel  Moore,  who  himself  performed 
the  marriage  ceremony,  being  a  minister  of  the 
Gospel.  Colonel  Moore,  it  may  be  added  here, 
was  also  for  years  a  member  of  congress  from 
the  Seventh  Illinois  district.  Mr.  McComas,  at 
the  end  of  his  term  as  state's  attorney,  moved 
with  his  family  to  Larned,  Kansas.  He  was 
Probate  Judge  of  the  county  during  the 
greater  part  of  his  residence  there,  but  the  con- 
dition of  Kansas  grew  so  destitute  that  he  re- 
moved to  New  Mexico.  Locating  at  Albu- 
querque, he  was  soon  appointed  prosecuting 
attorney  for  the  Second  Judicial  district.  He 
also  served  in  the  council,  the  upper  house  of 
the  legislature,  and  was  the  author  of  a  num- 
ber of  bills,  which  are  still  on  the  books  of  that 
territory,  among  them  being  the  public  school 
law. 

in  the  fall  of  1886  Judge  McComas  came 
to  California,  and  settled  permanently  at  Los 
Angeles,  engaging  in  the  practice  of  law.  In 
1889  he  was  appointed  deputy  district  attorney 
of  Los  Angeles  county.  This  position  he  still 
holds,  having  occupied  it  under  every  subse- 
quent Republican  district  attorney,  and  there 
has  Deen  only  one  Democratic  district  attorney 
during  that  period. 

As  a  public  prosecutor,  Judge  McComas  is 
distinguished  for  skill  and  general  pro- 
ficiency. The  Times  of  Los  Angeles  has  de- 
clared him  to  be  the  ablest  that  the  county  has 
had.  According  to  the  Express,  in  November, 
1899,  he  has  convicted  more  criminals  during 
his  long  service  than  any  other  officer  on  the 
Pacific  Coast  in  a  like  period  of  time.  He  has 
been  the  subject  of  several  public  biogra- 
phies, and  is  represented  as  being  untiring  in 
his  efforts  to  bring  to  justice  violators  oi  the 
law.  "Some  of  the  cases  brought  before  him," 
says  one  writer,  "were  as  complicated  and  in- 
tricate as  any  ever  presented  to  an  official,  but 
he  proved  himself  fully  equal  to  coping  with 
them.  *  *  Believing  that  a  public  office  is 
a  public  trust,  he  has  devoted  liiniself,  in  the 
various  offices  held  by  him,  to  the  faithful  dis- 
charge of  his  duties,  and  his  work  has  been 
successful.  His  record  is  one  of  which  he 
and  his  many  friends  may  well  be  proud." 

iac  Judge's  family  consists  of  his  wife  and 
three  children,  the  later  being  Miss  Alice 
Beach  McComas.  Mrs.  Clare  McComas  Har- 
ris, and  Miss  Carroll  McComas.  Miss  Alice 
is  one  of  the  most  accomplished  of  pianisles. 
Mrs.  Harris  is  a  fine  vocalist.  Miss  Carroll 
is  a  successful  vaudeville  star,  and  a  whistler 


of  wonderful  powers.  She  has  been  ottered 
a  flattering  London  engagement  for  the  present 
vear. 


A.  M.  McCOY. 


Mr.  McCoy  was  born,  in  Clark  county,  Mis- 
souri, on  June  9.  1852.  He  was  one  of  six 
brothers,  and  was  the  son  of  Joseph  McCoy, 
who  was  well  and  favorably  known  not  only 
in  Missouri,  but  also  in  other  States.  He 
was  educated  principally  at  Pleasant  Hill 
Academy  in  his  native  county,  and  La  Grange 
College    and    Christian    University,    in    Lewis 


county.  He  graduated  from  the  last  named 
institution  in  1874  \vith  the  degree  of  A.  B.. 
and  was  accorded  the  honor  of  valedictorian 
of  his  class.  He  studied  for  one  year  as  a 
post  graduate  in  his  alma  mater,  and  then 
taught  for  one  year  the  department  of  English 
Literature  and  history.  He  afterwards  re- 
ceived the  degree  of  master  of  arts  from  the 
same   school. 

In  1874  Mr.  McCoy  came  to  California  and 
located  at  Red  Bluff,  which  has  continued  "to 
be  his  home.  He  taught  for  two  years  at  this 
place,  being  the  principal  of  the  public  schools. 
In  the  spring  of  1878  he  found  his  health  very 
much  impaired,  and  on  this  account  he  em- 
barked in  the  sheep  business  anfl  sjjent  a  few 
years  in  the  mountains  .'ind  foothills.  Regain- 
ing Irs  health  he  commenced  the  study  of  law 
among  the  tall  ])ines  and  in  the  free  air  of  the 
.Sierras,  and  afterwards,  continueil  the  same  in 
the  oflice  of  Jackson  Hatch,  who  was  then 
at  Red  Bluff. 

lie  was  admitted  to  practice  as  an  attorney 
in  the  spring  of  i88().  and  he  was  in  the  fall 
of  that  year  elected  as  district  attorney  of 
the  county  of  Tehama.  He  was  re-elected  to 
the  same  office  lor  two  successive  terms,  each 
time  by  an  increased  majority.  Retiring  from 
this  office  in  i8().?,  he  has  devoted  himself  very 
industriously  to  general  practice.  He  has 
been  very  successful  in  his  profession  and  has 
often  been  called  to  other  counties  to  take 
charge  of  important  litigation. 

He  has  always  been  a  staunch   Democrat   in 


890 


History  of  the  Bench  and  Bar  of  California. 


politics  and  has  taken  a  prominent  part  for 
his  party  in  campaigns,  being  an  earnest  sup- 
porter of  William  J.  Bryan  and  the  principles 
of  which  he  is  pre-eminently  the  exponent. 

Mr.  McCoy  was  married  in  1884  to  Miss 
Hattie  Muth.  This  union  has  been  blessed 
with  three  bright  children.  He  is  the  owner 
of  one  of  the  most  comfortable  homes  in  Red 
Bluff.  He  is  a  :\Iason  and  Odd  Fellow,  and 
he  is  also  a  zealous  and  prominent  member 
of  the  Christian  church.  He  holds  a  very 
high  place  in  the  good  will  of  the  comnninity 
where  he  has  lived  so  long. 


J.  \v.\DE  McDonald. 

J.  Wade  McDonald,  of  San  Diego,  has  long 
occupied  a  leading  place  at  the  bar  of  the 
State.  He  is  a  native  of  Ohio,  and  as  a  boy  of 
sixteen  served  in  the  Union  Army  during  the 
Civil  War  until  disabled  by  wounds.  At  the 
close  of  the  war  he  settled  at  Huntsville.  Ala- 
bama, and  studied  law  under  General  L.  P. 
Walker,  who  was  the  first  secretary  of  war  of 
the  Confederate  States. 

He  took  an  active  part  in  politics  in  Ala- 
bama, as  a  Republican  ;  was  assistant  secretary 
of    the    Alabama  '  senate,    and    Quarter-master 


'i!<^BES^jii£,t .. 


General  on  the  staff  of  William  H.  Smith,  the 
first  Republican  Governor;  and  by  his  ability 
as  an  organizer  and  stump-speaker  contributed 
very  largely  to  the  carrying  of  the  State  for 
General  Grant  in  1868. 

He  moved  to  Kansas  in  1872,  and  in  that 
year  followed  Horace  Greeley  into  the  Demo- 
cratic party.  While  residing  in  Kansas  he 
served  one  term  on  the  bench  and  one  term 
as  prosecuting  attorney.  He  was  the  Demo- 
cratic candidate  for  Congress  in  the  third 
district  of  Kansas  in  1880,  and  declined  the 
same  party's  nomination  for  Governor  in  1886. 

Judge  McDonald  came  to  California  and  set- 
tled  in   San  Diego  in   May,   1887,   when   about 


40  years  of  age.  At  once  he  took  rank  among 
the  ablest  lawyers.  He  is  a  most  fascinating 
and  eloquent  orator.  The  cases  of  San  Diego 
Land  and  Town  Company  vs.  Ncale,  78  Cal. 
t)3  •,Coii.'dcn  vs.  Pacific  Coast  Stca)nship  Co., 
94  Cal.  470;  Consolidated  National  Bank  vs. 
Pacific  Coast  Stca)nsliit}  Co.,  95  Cal.  i  ;  Story 
and  IsluiinCo.  Z's.  Story,  100  Cal.  30-41;  Burn- 
ham  vs.  Stone,  101  Cal.  164;  City  of  San  Diego 
vs.  Higgins,  115  Cal.  170;  Thomas  vs.  Pacific 
Beach  Co.,  115  Cal.  136,  and  People  vs.  Jones, 
123  Cal.  299,  all  settle  new  and  important  ques- 
tions of  principle  and  practice  and  were  all 
liersonally  briefed  for  the  winning  parties  by 
Judge  McDonald.  They  are  shining  trophies 
of  his  legal  "bow  and  spear." 

When  the  national  Democratic  convention  in 
1896  assailed  President  Cleveland  for  stopping 
the  Chicago  riot  and  arraigned  the  United 
States  Courts  for  interposing  the  process  of 
injunction  as  a  protection  to  life,  property  and 
the  public  peace.  Judge  McDonald  went  back 
to  the  Republican  party,  and  in  1898  made  a 
vigorous  campaign  in  support  of  the  State 
ticket.  His  work  was  mainly  in  San  Fran- 
cisco, and  its  character  and  effect  are  shown 
by  the  following  extract  which  we  have  been 
permitted  to  make  from  a  letter  addressed 
him  by  the  chairman  of  the  Republican  State 
central  committee,  under  date  of  November 
1 2th,  1898,  to-wit: 
"Hon.  J.  Wade  McDonald,  San  Diego,  Cal. : — 

"My  Dear  Sir :  I  desire  to  assure  you  of 
my  sincere  appreciation  of  the  eminent  ser- 
vices rendered  by  you  in  the  past  campaign, 
services  from  which  sprung  the  most  mag- 
nificent victory  ever  achieved  in  the  history  of 
California  politics. 

"On  behalf  of  this  committee,  therefore,  I 
desire  to  gratefully  acknowledge  the  beneficent 
results  due  to  your  oratorical  ability,  and  the 
unanswerable  arguments  you  presented,  in 
favor  of  principle  and  patriotism,  all  of  which 
has  enabled  us  to  accomplish  our  glorious 
victory." 

Judge  McDonald  is  the  original  "Prophet 
of  Expansion,"  having  been  the  first  man  in 
the  United  States  to  declare  for  it.  from  a 
public  rostrum  upon  a  notable  occasion.  He 
was  the  orator  at  the  "Memorial  I^ay"  exer- 
cises held  at  San  Diego  on  the  30th  of  May, 
1898.  and  in  the  course  of  his  speech,  said: 
"I  believe  that  I  voice  the  sentiment  of  every 
old  soldier.  Union  or  Confederate,  within  the 
limits  of  the  United  States  today,  and  I  be- 
lieve also  of  the  great  mass  of  patriotic  citi- 
zens of  our  countrv,  when  I  say  that  since  we 
have  been  forced  to  war.  since  we  have  been 
compelled  to  offer  upon  the  shrine  of  the  mis- 
taken pride  of  Spain  the  lifeblood  and  treasure 
of  our  country,  not  one  foot  of  the  soil  that 
we  take  from  her  by  armed  force  during  this 
war  shall  ever  be  returned.  No!  That  which 
wc  take  with  the  strong  hand  of  war  we  will 
retain  ;  and  we  shall  not  ask  permission  from 
czar,  kaiser  or  potentate  to  do  so." 

And  in  his  campaign  for  the  Republican 
ticket  in  1898  he  eschewed  personal  and  State 
•"olitics  entirely,  and  made  his  appeal  to  the 
people  exclusively  upon  the  grounds  of  na- 
tional expansion. 


History  of  the  Bench  and  Bar  of  California. 


891 


J.  P.  Mcelroy. 

James  P.  McElroy  was  born  at  St.  Johns, 
New  Brunswick,  August  30,  1835,  the  son 
of  Edward  and  Rose  (McKenna)  McElroy, 
both  of  Irish  descent.  James  was  educated 
at  Morrisville,  Vermont.  He  studied  law  in 
the  office  of  Thomas  Gleed,  of  that  place,  for 
three  years,  and  was  admitted  to  the  bar  m 
1858.  He  practiced  law  until  1862,  when  he 
enlisted  in  the  Ninth  Regiment,  Vermont  Vol- 
unteers. He  served  three  years,  being  mus- 
tered out  at  the  close  of  the  war,  in  1865.  He 
then  resumed  his  law  practice  in  Vermont,  and 
followed  it  until  1872.  Believing  that  in  the 
West  he  would  find  a  broader  field  for  the 
exercise  of  his  talents,  he  settled  in  Chicago, 
where  he  practiced  his  profession  with  suc- 
cess. In  1887,  on  account  of  his  health,  he 
came  to  Oakland,  Cal.,  where  he  built  up  a 
good  and  growing  practice.  He  was  a  mem- 
ber of  the  G.  A.  R.  since  its  organization.  In 
1896  he  was  colonel  of  the  Army  and  Navy 
League  of  Alameda  county,  and  lieutenant- 
colonel  of  the  State  Army  and  Navy  League. 

In  the  war,  his  command  operated  for  a 
considerable  time  in  the  Shenandoah  Valley, 
ui-.der  General  Pope.  From  there  it  went  to 
North  Carolina,  where  it  was  under  General 
Butler.  It  finally  brought  up  in  front  of 
Richmond,  and  took  part  in  the  surrender 
there.  He  was  in  many  hotly  contested 
actions,  beginning  with  Winchester  and  Har- 
per's Ferry.  After  crossing  the  James  River 
it  was  almost  continuous  fighting  from  Sep- 
tember until  the  following  April,  1865,  when 
Richmond   fell. 

In  1862  Mr.  McElroy  was  married  to  Miss 
Amy  Carpenter,  a  daughter  of  Josiah  Car- 
penter, of  Waterville,  Vermont.  His  wife  is 
of  old  Puritan  stock,  the  founder  of  the  fam- 
ily having,  it  is  believed,  come  over  in  the 
Mayflower.  Mrs.  McElroy  is  a  cousin  of  the 
late  Senator  Matt  Carpenter,  of  Wisconsin, 
and  of  State  Senator  Richard  B.  Carpenter,  a 
prominent  citizen  of  Los  Angeles.  Two  chil- 
dren blessed  their  union,  Edward  J.,  and 
Charles  B.  The  latter  died  in  1886  in  Chi- 
cago. James  P.  McElroy  died  very  suddenly 
of  heart  trouble  at  his  residence  in  Piedmont, 
August  8th,  1900.  aged  sixty-four  years  and 
eleven  months.  Mrs.  McElroy  is  residing  in 
San  Francisco. 


FRANK  McGOWAN. 


Frank  McGowan  was  born  at  Steilacoom. 
Washington,  in  i860.  He  studied  law  in  Hum- 
boldt county,  and  was  admitted  to  the  bar 
of  the  Supreme  Court  in  1883.  He  practiced 
lav.-  at  Eureka  for  some  thirteen  years.  In 
the  presidential  campaigns  of  1880  and  1884, 
Mr.  McGowan  l)ecame  noted  as  a  public 
speaker  on  the  Republican  side,  and  since 
has  been  active  in  national  and  State  cam- 
paigns. He  is  a  brilliant  and  magnetic  speaker. 
Hc'  served  two  terms  in  the  senate,  from 
January,  1889,  to  March,  1897,  representing 
Humboldt  and  Del  Norte  counties.  He  re- 
moved to  San  Francisco  in  1896,  and  has  since 


been  in  good  practice  there.  He  was  noni- 
ipated  presidential  elector  by  the  Republican 
state  convention  at  Santa  Cruz  in  September, 
1900.  and  was  elected  Xo  this  honorable  place. 
Mr.  McGowan  was  united  in  marriage  to 
Lena  Bluni  on  the  28th  day  of  September, 
J 889,  and  has  two  children. 


E.   W.    McGRAW 


lulward  Walker  McGraw  was  born  in  De- 
troit, Michigan,  on  September  4,  1837.  His 
father  was  a  native  of  Orange  county,  New 
York,  and  was  born  in  i8oy,  but  moved  to 
Michigan,  then  in  the  very  far  West,  in  1830. 
His  mother  was  born  in  Providence,  Rhode 
Island.  His  ancestors  on  the  father's  side 
lived  in  the  north  of  Ireland,  county  Artnagh. 
On  the  mother's  side  they  were  Puritans  and 
Quakers  of   New   England. 

Mr.  McGraw  was  graduated  from  the  Uni- 
versity of  Michigan  with  the  degree  of  A.  B. 
in  1859.  He  received  the  degree  of  A.  M.  in 
1862.  In  the  fall  of  1859  he  attended  the 
Albany  Law  School,  and  in  i860  the  law 
school  of  the  University  of  Michigan.  He  was 
admitted  to  the  bar  in  Detroit.  Michigan,  in 
October,  i860,  and  immediately  started  for 
Portland,  Oregon,  via  the  Panama  route. 
Arriving  in  Portland  in  December,  i860,  he 
practiced  law  there  until  November  ist,  1864. 
Mr.  McGraw  was  United  States  district  attor- 


ney for  Oregon  in  1862-4.  and  city  attorney 
of  Portland,  1863-64.  In  November,  i8(u.  he 
went  to  llonohilu.  and  spent  the  winter  oi 
1864-q.  In  .April.  18O5,  lu-  went  lo  San  I""ran- 
cisco.  ami  thence  on  horseback  to  Idaho,  arriv- 
ing at  Idaho  City  in  June.  1865.  Mo  practiced 
law  there  until  May.  i8()7.  Taking  horse  again 
he  proceeded  to  I-'ort  Benton,  tlience  down  the 
Missouri  by  steamer  to  St.  Louis,  arriving 
there  in  September,  1867.  He  spent  a  couple 
of  months  in  the  F.ast.  and.  in  December, 
started  from  New  ^'ork  for  San  Francisco  via 
Nicaragua,  arriving  at  .San  I'raneisco  on  Jan- 
uary 1st.  l8()8.  He  now  ended  his  travels,  and 
has  ever  since  been  practicing  law  in  San 
Francisco. 


892 


History  of  the  Bench  and  Bar  of  California. 


He  married  on  June  4,  1869,  Miss  Sarah 
Ellen  Tichenor,  of  Port  Orford,  Oregon,  and 
has  had  thirteen  children,  nine  of  whom  are 
living. 


JAMES   McLACHLAN. 

Hon.  James  McLachlan,  a  member  of  the 
national  house  of  representatives  from  the 
Sixth  district  of  California,  was  born  in  Scot- 
land in  1852.  His  parents  brought  him  with 
them  to  the  United  States  three  jears  later, 
and  settled  in  Tompkins  county.  New  York, 
engaging  in  farming.  The  son  was  raised  on 
the  farm,  and  attended  the  district  school,  the 
while  preparing  himself  for  college.  He  was 
graduated  from  Hamilton  College  in  1878, 
studied  law,  and  in  1880  was  admitted  to  the 
bar  of  the  Supreme  Court  of  New  York.  In 
1881  he  located  at  Ithaca,  New  York,  where 
he  practiced  law  until  1888.  In  the  latter 
year  he  came  to  California,  and  settled  at  Pas- 
adena, in  Los  Angeles  county.  In  1890  he 
was  elected  district  attorney  of  that  county, 
on  the  Republican  ticket.  In  this  connection 
he  is  referred  to  in  the  sketch  of  his  friend, 
Superior  Judge  York,  who  at  that  time  be- 
came his  assistant.  In  November,  1894,  he 
was  elected,  as  a  Republican,  a  representative 
in  the  Fifty-fourth  congress,  and  served  the 
term  from  March,  1895,  to  March,  1897.  Mr. 
McLachlan.  as  well  as  Senator  White,  did 
able  and  effective  work  to  secure  for  Southern 
California  an  appropriation  for  San  Pedro 
harbor,  which  was  so  stubbornly  contested  by 
various  financial  corporations  with  interests 
elsewhere. 

Since  1897  Mr.  McLachlan  has  been  follow- 
ing his  profession  in  Los  Angeles  city.  He 
was  returned  to  congress  in  1900  for  the  two 
years'  term,  beginning  March  4.  1901,  by  a 
great  majority. 

Mr.  McLachlan  is  married  and  has  several 
children.  He  owns  his  home  in  Pasadena, 
and  is  in  good  circumstances.  He  has  be- 
longed to  the  Los  Angeles  Chamber  of  Com- 
merce since  1891,  and  is  in  hearty  sympathy 
with  the  public  spirit  of  that  wide-awake  and 
progressive  institution. 


ROBERT  L.  McKEE. 


Mr.  McKee  was  born  in  Panola.  Panola 
county.  Mississippi.  He  came  to  Oakland. 
California,  in  the  early  fifties,  as  a  child.  He 
went  to  public  and  private  schools  in  Oak- 
land until  he  entered  the  College  of  California, 
which  afterward  became  merged  into  the  Uni- 
versity of  California.  He  was  graduated  from 
the  University  of  California  in  the  first  class 
that  ever  graduated  from  that  university. 
Shortly  thereafter  he  went  to  the  University 
of  Virginia,  to  study  law.  remaining  one  year. 
He  received  a  certificate  of  proficiency  June 
29th.  1871.  Returning  to  Oakland  he  went 
into  a  law  office  in  San  Francisco.  He  after- 
wards served  as  deputy  county  clerk  in  the 
City  and  County  of  San  Francisco  under  the 
late  Colonel  William  Harney.  After  remain- 
ing  there   a   year   and    more    he    resigned,    was 


admitted  to  the  bar  by  the  District  Court  of 
the  Twelfth  Judicial  District,  and  proceeded 
to  practice  in  Oakland.  He  was  admitted  to 
the  bar  of  the  Supreme  Court  of  California  in 
1875.  While  practicing  in  Oakland  he  served 
as  deputy  district  attorney  for  Alameda  county 
and  afterwards  as  court  commissioner. 

He  went  to  Oregon  in  1882,  and  practiced 
law  in  Portland,  being  associted  with  the  late 
Judge  Shattuck.  While  there  he  was  nomin- 
ated for  Circuit  Judge  for  the  county  of  Mult- 
nomah, unknown  to  himself;  but  after  being 
notified  he  had  to  decline  the  honor,  as  he 
had  not  been  in  the  state  a  sufficient  length 
of  time  to  be  eligible  to  the  office.  After  a  few 
years  he  returned  to  Oakland,  where  he  is 
practicing  at  present. 

Mr.  McKee  is  a  Democrat.  He  ran  for 
office  but  once ;  it  was  for  district  attorney 
for  Alameda  count}',  and,  as  was  to  be  ex- 
pected, the  whole  ticket  was  defeated.  He 
has  taken  the  stump  for  his  party  on  many  oc- 
casions as  well  as  for  his  friends  in  different 
counties,  both  in  this   State  and  Oregon. 

THOMAS   McNULTA. 

Thomas  McNulta  was  born  October  8, 
1845,  of  Scotch-Irish  ancestors.  His  father, 
who  was  born  and  reared  in  the  city  of  Dub- 
lin, Ireland,  was  the  son  of  Scotch  parents, 
and  was  for  a  time  a  student  of  Trinitj-  Col- 
lege, Dublin,  but  did  not  graduate,  and 
came  to  this  country  when  twenty  years  of 
age.  His  father,  the  grandfather  of  our  sub- 
ject, was  an  engineer  officer  who  resigned 
from  the  army  and  settled  in  Dublin,  and 
followed  the  business  of  an  engineer  and 
architect. 

The  father  of  Thomas  McNulta,  on  coming 
to  the  United  States,  settled  first  in  New 
York  city,  and  subsequently  in  New  Ro- 
chelle,  in  that  State,  where  the  .son  was  born. 
Many  of  the  bridges  on  the  New  York  & 
New  Haven  railroad  and  a  portion  of  Fort 
Schuyler,  in  that  county,  as  well  as  numerous 
houses  and  buildings,  were  constructed  under 
the  supervision  of  the  father,  who  followed 
the  business  of  contractor  and  builder,  in 
which  the  engineering  and  architectural  skill 
acquired  from  his  own  father  was  so  suc- 
cessfully applied  that  he  realized  two  for- 
tunes from  his  efforts,  one  of  which  he  lost 
by  disasters,  especially  by  fire,  and  the  pay- 
ment of  security  debts,  and  the  other  by  the 
financial  stress  of  the  times  in  the  fifties.  He 
was  an  ardent  lover  of  the  United  States 
and  widely  read  in  its  history,  and  this  love 
for  the  country  he  instilled  into  the  minds 
of  his  children  from  their  earliest  infancy. 
His  faith  was  tested  later,  and  though  an 
old  man.  he  served  for  one  campaign  in  the 
war  for  the  Union,  and  took  part  in  the  bat- 
tle of  Bristow  Station  and  some  minor  af- 
fairs. His  three  sons.  John.  Benjamin  F.. 
and  Thomas,  served  in  the  same  cause,  the  eld- 
est beino-  the  late  Gen.  John  McNulta.  of  Chi- 
cago. 111.,  who  died  in  the  city  of  Washington, 
on  February  22nd.  1900.  Benjamin  F.  died 
manv  years  ago  from  wounds  received  while 
serving    in    the   navv.      Thomas    McNulta    was 


Thomas  McNutta. 


History  of  the  Bench  and  Bar  of  California. 


895 


being  prepared  for  Columbia  College  at  the 
outbreak  of  the  war,  and  being  affected  with 
the  war  fever  like  many  a  youth  of  the  time, 
he  enlisted  on  November  Jist,  i86i,  and  served 
as  a  private  in  two  different  regiments,  the 
D'Epineuil  Zouaves  and  the  Anderson 
Zouaves,  and  finally,  in  1864-5,  ^is  captain  of  a 
company  of  Tennessee  Union  militia,  organ- 
ized at  Nashville  from  employes  of  the  quar- 
termaster's department  at  that  place.  Dur- 
ing his  service  he  was  twice  wounded 
slightly,  and  had  his  right  leg  broken  at  the 
ankle  joint  by  a  fall  from  a  horse.  In  all, 
he  participated  or  was  under  fire  in  seventeen 
engagements. 

The  mother  of  Mr.  McNulta  was  born  in 
Invernesshire,  Scotland,  of  French  ancestry. 
Her  ancestors  came  from  near  La  Rochelle 
and  her  maiden  name  was  Catherine  Char- 
beray.  Her  grandfather  was  chief  of  bat- 
talion in  the  French  army,  and  belonged  to 
a  collateral  branch  of  the  Lannes  family. 
In  addition  to  what  has  been  said  about  the 
father's  family  it  may  be  stated  that  a  great 
uncle  of  Mr.  McNulta  served  as  an  ofiicer 
with  Sir  John  Moore,  whose  burial  has  been 
commemorated  by  the  well  known  poem  on 
the  subject.  This  uncle  subsequently  married 
and  settled  in  Spain,  and  all  further  trace  of 
that  branch  of  the  family  has  been  lost. 

The  name  McNulta,  in  its  various  forms 
of  spelling,  has  been  shown  to  have  existed 
in  the  time  of  Macbeth,  in  whose  household 
some  of  them  lived.  Mr.  McNulta  declares 
that  Macbeth,  by  the  way,  did  not  murder 
Duncan  but  killed  him  in  the  open  field  in 
fair   fight. 

Our  subject  studied  law  in  the  office  of  Wel- 
don  &  McNulta  at  Bloomington,  111.,  and  was 
admitted  to  the  Supreme  Court  of  that  State 
at  the  age  of  twenty-three  years.  He  was 
associated  with  his  brother.  General  McNulta, 
for  several  years  at  Bloomington,  as  attorney 
for  the  I.  B.  &  W.  Railway  Co.,  and  in  other 
legal  business.  He  settled  at  Santa  Barbara, 
Cal.,  in  1873.  After  a  year  spent  in  reportor- 
ial  and  editorial  work  on  the  press,  he  renewed 
the  practice  of  the  law  and  has  followed  it 
continuously    ever    since. 

Mr.  McNulta  was  district  attorney  of  Santa 
Barbara  county  for  one  term  by  election,  and 
for  one  term  was  assistant  district  attorney 
by  appointment  of  his  then  partner,  A.  A. 
Oglesby.  He  was  for  eighteen  years  city  at- 
torney of  the  city  of  Santa  Barbara  and  man- 
aged for  that  municipality  some  notable 
cases,  one  of  which  involved  the  Haley  sur- 
vey, and  the  proper  adjustment  of  street 
lines  (see  Orena  vs.  The  City  of  Santa  Bar- 
bara, 91  Cal.,  621).  Another  involved  the 
title  to  the  city  hall,  and  the  plaza  on  which 
it  stands.  All  of  this  business  he  attended  to 
alone  except  the  city  hall  case,  in  wliicli  he 
was  ably  assisted  by  Jarrett  T.  Richards,  an 
accomplished  member  of  the  local  bar,  who 
was  himself  at  one  time  city  attorney  and  also 
mayor  of  the  city.  Mr.  McNulta's  practice 
has  been  of  a  varied  character.  Init  mostly 
civil,  and  some  of  it  important.  He  was  the 
first  attornej'  employed  by  the  late  A.  P. 
More  in  the  case  reported  in  the  71st  Cal.. 
page  546,  in  which  it  was  decided  for  the  first 


tune  that  no  appeal  lies  on  behalf  of  the  people 
from  an  order  made  by  the  Superior  Court  of 
its  own  motion  under  section  1385  of  the 
penal  code  dismissing  a  criminal  action.  This 
case  became  well  known  throughout  the  State 
from  the  fact  that  the  defendant  was  an  old 
and  prominent  resident,  and  also  because  of 
a  novel  question  of  jurisdiction  which  was 
raised  in  it,  but  never  was  decided  on  the  facts 
upon  which  the  question  was  based. 

At  the  last  election  Mr.  McNulta  declined 
to  be  a  candidate  for  city  attorney,  but  is  now 
retained  as  associate  counsel  for  the  city 
in  some  important  cases,  one  of  which  is  that 
of  the  Montecito  Valley  Water  Co.  vs.  The 
City  of  Santa  Barbara  et  al.  This  action 
involves  riparian  rights,  the  rights  of  owners 
of  land  to  tunnel  thereon  for  water,  and  some 
questions  as  to  the  right  of  a  private  corpora- 
tion   to    obtain    water    by   prescription. 

Mr.  McNulta  is,  as  the  expression  goes,  an 
"all  round  practitioner."  His  specialties,  if 
he  has  any,  are  land  titles  and  corporation 
laws. 

VICTOR  H.  METCALF. 

Hon.  Victor  Howard  Metcalf,  representative 
in  congress  from  the  Third  district,  compris- 
ing the  counties  of  Alameda,  Contra  Costa. 
Solano,  Yolo,  Lake,  Glenn  and  Colusa,  was 
born  in  Utica,  New  York.  October  10,  1853. 
He  is  a  graduate  of  L^tica  Free  Academy  and 
Russell's  Military  Academy.  New  Haven.  Con- 
necticut. He  entered  Yale  College,  academical 
department,  leaving  it  in  his  junior  year  to 
attend  the  Yale  Law  School,  from  which  he 
was  graduated  in  1876.  During  college  vaca- 
tions he  had  studied  law  in  the  office. of  United 
States  Senator  Francis  Kernan,  at  lUica,  and 
in  the  offices  of  Horatio  Seymour  and  John  F. 
Seymour,  in  the  same  city.  He  was  admitted 
to  practice  by  the  Supreme  Court  of  Connecti- 
cut in  June.  1876,  and  by  the  Supreme  Court 
of  New  York,  in  1877.  He  followed  the  prac- 
tice in  Utica  for  two  years.  Coming  to  Cali- 
fornia in  1879.  and  locating  in  Oakland,  he  has 
ever  since  been  one  of  the  strongest  men  at 
that  bar,  having  throughout  this  period  of 
twenty  years  important  legal  business  in  San 
Francisco  and  other  cities.  He  possesses  ex- 
ceptional vigor  of  mind  and  body,  untiring  en- 
ergy and  broad  legal  knowledge.  He  is  al- 
ways practical  in  his  methods,  clear  in  his  per- 
ceptions and  has  a  full  meastne  of  what  Pope 
styled  "good  sense,  which  only  is  the  gift  of 
heaven."  He  follows  his  profession  with  the 
most  industrious  and  serious  devotion,  and 
has  pmspered  to  a  degree  that  comparatively 
few  have  attained  anywhere. 

In  1S81  Mr.  Metcalf  formed  a  law  partner- 
s!ii|)  with  Mr.  George  D.  Metcalf.  who  is  also 
a  Yale  graduate,  under  the  firm  name  of  Met- 
calf &  Metcalf,  which  still  conlimios.  The 
gentlemen  are  not  brothers,  .ind.  we  believe, 
are  not  related. 

Mr.  Victor  Metcalf  was  first  elected  lo  con- 
gress in  November.  i8()8.  and  again  in  No- 
vember. 1900.  His  present  term  will  expire  on 
March  3.  l()03.  In  his  high  oflice.  as  in  his 
profession,  he  li.is  bc<-n  e.iincsi   and  i-onsi.uit  — 


896 


History  of  the  Bench  and  Bar  of  California. 


steadily  accomplishing  good  work.  His  watch- 
ful zeal  and  efficient  service  have  fulfilled  the 
prediction  of  those  who  knew  him  best. 

HENRY  EDMUND  MILLS. 

Henry  E.  Mills  was  born  in  Montrose,  Sus- 
quehanna county  Pa.,  June  24th,  1850.  His 
paternal  ancestor,  Samuel  Mills,  was  born  in 
Dcdham  precinct,  now  Necdham,  Mass.,  in 
1622.  His  grandfather,  Josiah  Mills,  was  in 
the  War  of  the  Revolution,  first  at  the  age  of 
16  years  as  a  drummer,  and  afterwards  as  a 
soldier,  and  was  in  the  battles  of  White  Plains, 
Saratoga,  Trenton  and  Yorktown.  His  mother, 
whose  maiden  name  was  Halsey,  was  a  de- 
scendant of  Thomas  Halsey,  who  settled  at 
Lynn,    Mass.,   prior   to    1635. 


Mr.  Mills  was  educated  at  Shurtleff  College, 
Upper  Alton,  111.,  and  was  graduated  in  1869. 
He  taught  a  country  school  for  one  year  and 
then  commenced  the  study  of  law  at  the  St. 
Louis  Law  School,  where  he  was  graduated 
in  1872  with  the  honors  of  his  class.  He  was 
married  on  August  30,  1877,  to  Emma  B. 
Sprague.  Five  children  have  been  born  of 
the  marriage. 

Mr.  Mills  has  never  sought  political  office, 
and.  outside  of  one  term  as  alderman,  has 
never  held  an  office.  He  is  the  author  of  a 
treatise  on  the  law  of  eminent  domain  which 
was  published  in  1878,  and  was  favorably  re- 
ceived by  the  profession.  A  second  and  re- 
vised edition  was  published  in  1888.-  Mr.  Mills 
practiced  in  St.  Louis,  Mo.,  from  1871  until 
1896,  when  he  removed  to  San  Diego.  In 
addition  to  his  professional  studies  he  has 
frequently  contributed  to  the  law  reviews 
and  the  periodicals  on  constitutional  and  econ- 
omic subjects. 

R.   P..   MITCHELL. 

Robert  Brent  Mitchell  was  born  in  Frederick 
county,  Maryland,  September  11,  1853.  He  was 
educated  at  Princeton  College.  l)ut  left  in  the 
junior  year.  He  is  a  graduate  of  the  law  school 
of  the  Universitv  of  Marvland.  ancl  was  admit- 


ted to  the  bar  at  Baltimore,  in  June,  1874,  be- 
fore he  was  quite  of  lawful  age.  He  is  of 
American  parentage,  his  father  being  a  farmer 
and   gentleman   of   leisure. 

Mr.  Mitchell  located  in  San  Francisco  in  Oc- 
tober, 1883.  After  practicing  alone  for  three 
years,  he  formed  a  partnership  with  A.  H. 
Ricketts,  under  the  firm  name  of  Mitchell  & 
Ricketts.  This  lasted  only  a  year,  and  Mr. 
Mitchell  was  alone  in  the  practice  until  the 
opening  of  1889,  when  he  and  Henry  C.  Mc- 
Pike  became  partners  under  the  style  of  Mitch- 
ell &  McPike.     This  also  lasted  but  a  year. 

Mr.  Mitchell,  during  most  of  the  period 
thus  far  gone  over,  was  the  resident  director 
of  the  United  States  Law  Association  of  New 
York.  He  began  his  long  association  with 
Hon.  William  M.  Pierson,  in  1890,  under  the 
name  of  Pierson  &  Mitchell.  This  was  dis- 
solved in  1899,  the  parties  continuing  to  occupy 
adjoining  offices. 

Mr.  Mitchell  has,  during  nearly  his  whole 
period  at  the  San  Francisco  bar,  been  one  of 
the  most  prominent  and  successful  practition- 
ers, and  is  still  in  the  full  tide  of  prosperity. 
It  will  be  a  good  while  yet  before  he  is  fifty 
years  old.  He  has  unusual  natural  force, 
somewhat  striking  appearance,  and  is  as  faith- 
fully devoted  to  his  profession  as  he  is,  by 
nature  and  training,  adapted  to  it.  He  is  a 
cultivated  and  polished  man.  It  is  not  to  be 
left  unsaid  that  he  tries  his  cases  in  a  masterly 
way.  being  apt,  ready,  and  resourceful,  while 
his  arguments  and  addresses  are  clear,  strong, 
and  logical,  delivered  with  the  most  pleasing 
voice  and  manner.  His  ready  ability  and  un- 
embarrassed demeanor  were  most  signally  ex- 
hibited at  many  times  during  the  progress  of 
the  great  Fair  case  through  the  courts  of  late 
years. 

Mr.  Mitchell  is  a  Democrat,  but  believes  in 
the  gold  standard,  and  left  his  party,  for  a  time 
at  least,  on  this  question  in  1896.  He  has  no 
political  ambition.  He  said  to  us  in  1894,  "I 
have  never  held  an  office,  and  never  will." 


CYRUS  F.  McNUTT. 


When  Judge  McNutt  came  to  California 
and  settled  at  Los  Angeles,  in  December,  1896, 
he  was  a  lawyer  of  ripe  mind,  and  large  ex- 
perience. He  was  born  on  a  farm  in  Indiana, 
July  29,  1837.  At  the  age  of  nineteen,  he 
entered  Franklin  College  with  the  intention 
of  pursuing  its  full  course  of  studies,  but  be- 
fore the  end  of  his  third  term  the  death  of 
his  father  c<)mi)clled  him  to  return  home  and 
conduct  the  farm.  He  left  the  farm  in  1859. 
and  spent  the  following  winter  as  a  student 
in  the  law  department  of  the  Northwestern 
Christian  University.  In  the  summer  of  i860 
he  was  admitted  to  the  bar  at  Franklin,  In- 
diana, and  began  practice  there  in  partnership 
with  ex-Judge  David  D.  Banta,  who  after- 
wards became  dean  of  the  faculty  of  law  in 
the  Indiana  State  University.  After  some 
months  he  formed  a  partnership  with  ex- 
Attorney  General  Thomas  W.  Woolen,  of 
Franklin.  In  Mav,  1862,  he  removed  to  Mar- 
tinsville,  Indiana,  and  practiced  in  partnership 


i 


<a 


^.J^^-^. 


History  of  the  Bench  and  Bar  of  California. 


899 


with  Alfred  Ennis  Esq..  now  prominent  at  the 
bar  of  Chicago.  He  had  great  success  at  that 
place. 

In  1872  Judge  McNutt  ran  for  congress  in 
the  Indianapolis  district,  on  tlic  Democratic 
ticket,  and  was  defeated  by  General  John  Co- 
burn,  who  was  then  representing  tlie  district. 
He  made  a  joint  canvass  with  General  Coburn, 
and  showed  himself  an  orator  of  high  powers 
as  well  as  a  skilled  debater.  In  June,  1874, 
the  trustees  of  the  state  university  elected  him 
a  professor  of  law.  It  took  him  by  surprise, 
but  he  accepted,  and  entered  on  his  duties  on 
the  following  October.  After  two  years  and 
three  months'  service  he  resigned.  In  October, 
1877,  he  removed  to  Tcrre  Haute,  where  he 
resided  until  he  left  Indiana  for  California. 
There  he  acquired  a  large  practice.  Besides, 
he  became  the  legal  adviser  and  attorney  of 
the  board  of  county  commissioners,  which  had 
in  hand  the  building  of  a  new  courthouse  and 
other  public  works,  and  served  in  that  ca- 
pacity for  eight  years. 

In  1890  our  subject  was  elected  Judge  of 
the  Sunerior  Court  of  the  county,  of  which 
Terre  Haute  is  the  county  seat,  and  served 
the  term  of  four  years.  He  declined  a  re- 
nomination. 

In  1895  appeared  the  large  work,  Iw  Charles 
W.  Taylor,  entitled.  "Biographical  Sketches 
and  Review  of  the  Bench  and  Bar  of  In- 
diana." It  contains  an  elaborate  notice  of 
Judge  McNutt.  as  lawyer,  judge,  literary 
writer,  and  lecturer.  The  article  is  decidedlv 
interesting,  and  written  with  much  grace  o£ 
style.  It  is  by  Judge  John  C.  Robinson,  of  the 
Indiana  bar,  a  man  of  fine  critical  powers  and 
general  ability.  He  lived  at  Spencer,  and  in 
the  sixties  was  prosecuting  attorney  for  the 
judicial  district  composed  of  Green,  Clay, 
Owen  and  Putnam  counties.  In  the  seventies 
he  was  Judge  of  the  Circuit  Court  of  that 
district.  From  his  entertaining  notice  of  Judge 
McNutt  we  extract  the  following: 

"Judge  McNutt  has  always  possessed  and 
merited  the  confidence  of  the  bar  and  the 
I)ublic  in  his  character  as  a  wise  and  learned 
counselor.  His  grasp  of  legal  propositions  is 
ciuick  and  strong,  and  his  vision  is  true  and 
far-reaching.  Had  he  remained  always  in  his 
office  as  a  legal  advise-r.  he  would  have  won 
a  high  reputation  in  his  profession,  but  his 
more  attractive  attributes  as  an  advocate  and 
trial  lawyer,  have  served  to  make  him  even 
more  conspicuous  as  a  barrister  than  as  coun- 
selor. He  has  had  employment  in  a  large 
proportion  of  all  the  great  cases,  civil  and 
criminal,  that  have  come  to  (rial  in  the  west- 
ern portion  of  Indiana  during  the  last  thirty 
years,  generally  as  the  leader  on  one  side 
or  the  other,  and  has  met  all  the  great  lawyers 
and  advocates  who  have  been  called  to  that 
field.  His  chief  characteristics  as  a  trial  law- 
yer, are  alertness  and  Ixildness.  amounting 
almost  to  seeming  recklessness,  and  which 
would  be  so.  indeed,  could  the  adversary  find 
time  to  cease  defense  long  enough  to  strike 
back  (this,  however,  is  not  permitted  him. 
and  the  end  generally  demonstrates  that  dash 
and  courage  were  the  wisest  caution'). 


"Judge  McNutt  brought  to  the  bench  such 
qualifications  as  insured  an  able  and  just 
administration  of  its  duties,  a  quick  conscience, 
courage,  adequate  learning  and  experience' 
practical  business  capacity,  untiring  industry, 
and  a  thorough  comprehension  of  the  fact  that 
the  real  object  of  judicial  investigation  is  to 
administer  justice.  His  administration  was  in 
all  respects  efficient  and  successful,  and  es- 
pecially satisfactory  to  lawyers  and  litigants. 

"For  several  years  Judge  McNutt  has  in- 
dulged his  taste  for  literature,  not  only  in 
the  close  study  of  its  best  models,  but.  to  some 
extent,  as  a  contributor  to  its  stores.  He  has 
written  a  considerable  number  of  short  stories, 
published  by  a  syndicate  of  newspapers  of  wide 
circulation.  He  has  also  written  several  more 
pretentious  works  of  fiction,  some  of  which 
are    not   yet    published.     *     *     * 

"He  has  also  given  a  great  deal  of  studv 
and  labor  in  preparing  for  the  work  of  the 
jilatform,  and  has  met  with  most  flattering 
success  in  that  field.  *  *  *  One  of  his  lec- 
tures, "The  Trial  of  Jesus,"  is  entitled  to  be 
considered  as  something  more  than  material 
for  an  evening's  entertainment.  It  is  a  mas- 
terful piece  of  literary  excellence,  and  em- 
bodying, as  it  does,  j'ears  of  investigation,  is 
a  mo.st  valuable  contribution  to  the  study  of 
the  great  theme. 

Judge  McNutt  is  himself  the  author  of  sev- 
eral biographical  notices  in  the  work  from 
which  we  have  quoted.  The  sketches  of  ex- 
Secretary  of  the  Navy  Richard  W.  Thompson, 
Judge  B.  E.  Rhoads,  and  Judge  David  N.  Tay- 
lor, are  from  his  pen. 

Since  Judge  McNutt  located  at  Los  An- 
geles he  has  maintained  the  same  high  stand- 
ing at  the  bar,  and  enjoyed  the  same  general 
esteem  which  were  his  in  Indiana.  In  Novem- 
ber. 1897.  he  formed  a  law  i)artnership  with 
Colonel  Geo.  H.  Smith  and  Mr.  J.  E.  Hannon, 
which  still  continues,  under  the  firm  name 
of  McNutt  &  Hannon.  Colonel  "Smith  having 
been  appointed  a  commissioner  of  the  Sui)r<.'me 
Court  of  California.  The  firm  of  McNutt  & 
Hannon  is  one  of  the  strongest  in  the  State, 
and.  although  it  was  only  recently  formed,  is 
fully  occupied  with  business  of  first  imi)ort- 
ance.  Judge  McNutt  is  an  unassuming  man, 
but  his  arguments  in  court  during  his  com- 
liaratively  brief  residence  in  California,  pre- 
sented in  his  (piiet,  yet  earnest  and  engaging 
wav.  have  been  the  subject  of  comment  by  our 
best  legal  minds,  and  the  profession,  at  least 
in  the  southern  part  of  the  State.  lo<iks  upi>n 
Iiim  as  one  of  its  very  ablest  exponents. 

Judge  McNutt  has  two  sons,  who  are  lead- 
ing members  of  the  Indiana  bar,  comprising 
the  firm  of  McNutt  &  McNutt.  which  has  been 
est.iblished  at  Terre  Haute  for  a  g<MHi  many 
ye.irs  now;  and  a  daughter.  Miss  B.  E.  Mc- 
Nutt. wiio  resides  with  her  parents  in  Los 
.\iigeles. 

ALBERT  A.  MOORE. 

.\lbert  A.  Moore  was  born  on  ilu-  J\A  day 
(if  November.  1842,  at  Waterloo.  Monroe 
county,     Illinois.      His     father     was     William 


900 


History  of  the  Bench  and  Bar  of  California. 


Whiteside  Moore,  whose  grandfather  settled 
at  Waterloo  (then  Belle  Fontaine,  in  the  state 
of  X'irginia),  holding  a  commission  as  captain 
of  militia,  issued  by  Patrick  Henry,  Governor 
of  Virginia.  Some  of  the  Moore  family  still 
live  on  the  old  homestead,  first  established  in 
177X. 

Mr.  Moore's  mother,  whose  family  name  was 
O'Melveny,  was  a  sister  of  Hon.  H.  K.  S. 
O'Melveny,  of  Los  Angeles,  now  deceased,  one 
of  the  ablest  men  of  the  California  bar,  and 
who  adorned  the  bench  of  the  Superior  Court 
of  his  county.  Mr.  Moore  came  with  his  par- 
ents to  California  in  1853,  and  settled  in  Ala- 
meda county,  where  he  has  since  resided.  He 
was  not  yet  in  his  teens.  After  passing  through 
the  public  schools  he  entered  the  University 
of  the  Pacific,  at  Santa  Clara,  where  his  edu- 
cation, so  far  as  it  was  derived  from  schools, 
was  finished.  He  then  took  up  the  study  of 
law  at  San  Leandro  (the  county  seat  of  Ala- 
meda county  at  that  period),  and  pursued  it, 
under  the  direction  of  Hon.  Noble  Hamilton, 
County  Judge  (and  afterwards  Superior 
Judge)  until  he  was  qualified  for  the  practice. 
Upon  his  admission  to  the  bar  he  commenced 
practice  at  once. 

At  twenty-eight  years  of  age  he  was  elected 
district  attorney.  He  held  this  office  for  two 
terms,  and  won  great  reputation  as  a  prosecu- 
tor of  criminals.  It  was  indeed  a  post  where 
his  exceptional  vigor  of  mind  and  skill  in  the 
elucidation  and  analysis  of  evidence  could  be 
employed  to  best  advantage. 

Since  he  came  to  the  bar  he  has  been  con- 
nected with  most  of  the  important  litigation  in 
his  county.  And  he  has  been  often  called  to 
the  courts  of  San  Francisco.  His  brothers  of 
the  profession  place  him  in  the  first  rank. 
He  is  noted  for  the  rapidity  and  power  with 
which  he  makes  his  presentations,  of  either 
law  of  facts,  to  court  or  jury. 

His  personal  figure  is  striking,  in  keeping 
with"  his  energy  and  precision  of  statement. 
Hejs  six  feet  in  height  and  his  strong  physiog- 
nomy reflects  his  individuality  and  force  of 
character. 

Mr.  Moore  married,  in  June.  1871.  an  ac- 
complished lady  of  San  Francisco,  Miss  Annie 
J.  Hall  sister  of  Hon.  Samuel  P.  Hall,  an- 
other prominent  lawyer,  who  also  filled  the 
office  of  district  attorney  of  Alameda  county 
with  general  acceptance  for  several  terms,  and 
is  now   Superior  Judge. 

It  is  noteworthy  that  Mr.  Moore  has  al- 
ways, since  coming  to  the  State  in  early  boy- 
hood, lived  in  the  same  county,  and  has  always 
until    recently   practiced   at   the   same   bar. 

Mr.  Moore  is  a  great  favorite  among  his 
acquaintances,  and  especially  among  members 
of  the  bar,  by  reason  of  his  genial  social  quali- 
ties. Like  man}'  men  of  his  profession,  he  is 
very  fond  of  out-door  sports,  hunting,  fishing 
and  the  like,  in  which  he  indulges  as  often  as 
a  bu.sy  life  will  permit. 

Mr.  Moore  has  a  grown  son  who  bears  his 
full  name,  who  is  a  prominent  lawyer  of  Oak- 
land and  San  Francisco,  and  now  a  deputy 
attorney-general  of  the  State.  Mr.  A.  A.  Moore, 
Jr..  was   united   in   marriage  in   1889,  to  Mrs. 


Florence  Blythe  Hinckley,  the  young  widow- 
heir  to  the  great  estate  of  Thomas  H.  Blythe. 

The  elder  Moore  removed  his  law  ofiice  to 
San  Francisco  in  1898.  His  son  also  trans- 
ferred his  practice  to  that  city. 


CHARLES  O.  MORGAN. 

Hon.  Charles  O.  Morgan,  one  of  the  Police 
Judges  of  Los  Angeles  city,  was  born  on  a 
farm  in  Madison  county,  New  York,  May  7, 
1854.  He  was  raised  on  the  farm.  His  early 
education  was  received  in  the  common  dis- 
trict schools  and  at  Colgate  Academy.  Later, 
he  entered  Madison  (now  Colgate)  University, 
at  Hamilton.  New  York,  and  was  graduated 
therefrom  with  the  class  of  1877.  Afterwards 
he  studied  law,  and,  in  November.  1882,  was 
admitted  to  the  bar  by  the  Supreme  Court  of 
New  York.  In  1883  he  went  to  the  West,  and 
first  took  up  his  residence  at  Huron,  Beadle 
county.  South  Dakota.  There  he  became  prom- 
inent at  the  bar,  and  also  held,  by  appoint- 
ment, for  nearly  four  years,  the  office  of  first 
deputy  register  of  deeds,  and  cx-oMcio  dep- 
uty county  clerk.  Afterwards,  during  the  years 
1887-88,  he  was  deputy  county  treasurer.  In 
1888  he  was  elected  county  auditor,  and  held 
the  position  until  January,  1890. 


Judge  Morgan  came  to  California  in  1892, 
and  in  that  year  settled  in  Los  Angeles  city. 
He  at  once  entered  upon  the  practice  of  law 
there,  and  rapidly  won  the  good  will  and 
confidence  of  the  people,  and  a  good  law  busi- 
ness. In  November,  1898.  he  was  elected  city 
justice  and  ex-officio  Police  Judge  of  that 
city,  on  the  Democratic  ticket,  which  ticket 
was  defeated,  with  this  exception.  He  as- 
sumed the  office  in  January,  1899,  his  official 
term  running  to  the  first  Monday  of  January. 

1903- 

The  Judge's  father  and  mother  are  both  still 
living — at  Hamilton,  New  York.  Hon.  John 
E.  Smith,  his  law  preceptor,  is  now  County 
Judge  of  Madison  county,  in  that  state. 

Judge     Morgan     married     Miss     Lizzie     M. 


Henry   V.   Morehouse 


History  of  the  Bench  and  Bar  of  California. 


003 


Chaphe,  in  June,  1878.     He  has  no  children. 

The  Judge  is  fearless  and  conscientious  in 
the  discharge  of  his  official  duties,  and  has  the 
respec't  and  confidence  of  the  Los  Angeles 
bar.  

HENRY  V.  MOREHOUSE. 

Henry  V.  Morehouse  is  a  man  of  Southern 
parentage,  and  was  born  in  Elkhart,  in  Elk- 
hart county,  Indiana,  on  the  1st  day  of  April. 
184Q.  His  youth  was  uneventful,  except  in 
earnest  labor  upon  the  farm  and  other  or- 
dinary employments.  His  parents  lost  their 
fortune  when  he  was  quite  3-oung,  and  this 
compelled  him  to  shift  for  himself;  so  he  left 
home  and  entered  the  broad  world  at  the  age 
of  fourteen.  He  found  emploj'ment  in  the  red 
wood  forests  of  Mendocino  county  in  this 
State,  working  in  a  sawmill,  cutting  cord- 
wood,  driving  teams,  etc.  Being  ambitious,  he 
dreamed  of  the  day  when  he  could  be  a 
practicing  lawyer.  Realizing  that  education 
was  absolutely  necessary,  he  purchased  such 
books  as.  upon  examination,  would  enable  him, 
by  hard  study,  to  become  a  school  teacher,  at 
which  occupation  he  could  find  the  time  to 
study  law.  In  time  he  had  sufticicnt  money  to 
enable  him  to  attend  school  for  one  year,  and 
then  he  passed  successfully  the  teacher's  ex- 
amination at  Ukiah,  in  Mendocino  county,  and 
was  at  once  employed  in  the  public  schools 
of  this  State.  In  1869  he  removed  to  Salinas 
City,  in  Monterey  county,  where  at  first  he 
worked  upon  a  farm,  and  then  was  employed 
in  the  schools,  and  soon  rose  to  prominence  as 
one  of  the  educators  of  that  county  as  principal 
of  the  leading  school.  He  served  many  years 
on  the  board  of  education  and  board  of  ex- 
aminers. 

He  completed  his  law  studies,  and  in  1876 
entered  the  chosen  profession  of  his  life.  He 
was  soon  elected  district  attorney  of  Monterey 
county,  which  position  he  filled  with  credit 
and  ability.  In  1881  he  formed  a  law  partner- 
ship with  Hon.  S.  F.  Gcil  of  Salinas  City, 
which  continued  until  January,  1890. 

During  that  time  he  was  engaged  in  all 
the  important  litigation  of  that  section  of  the 
State,  and  rapidly  rose  to  distinction.  His  ar- 
guments in  the  Pruett  murder  trial,  the  .-^zkcll 
murder  trial  and  other  great  criminal  cases 
are  remembered  as  eloquent,  passionate 
and  persuasive  speeches.  His  success  was 
phenomenal,  and  he  was  known  as  being  very 
studious,  energetic,  earnest,  firm  and  self-re- 
liant  and  true  to  every  trust. 

In  1890  he  removed  to  San  Jose.  Santa  Clara 
county,  and  at  once  stood  in  the  front  rank 
of  the  profession  there.  He  has  been  engaged 
in  the  important  litigation  of  the  county,  and 
increased   his   reputation   as  a  lawyer. 

In  politics  he  is  a  Republican,  and  his  voice 
has  been  heard  upon  the  stump,  in  every  ham- 
let, village  and  city  in  the  State.  He  is  an  im- 
passioned and   eloquent    speaker. 

Mr.  Morehouse  has  been  major  and  judge 
advocate  of  the  Fifth  Regiment  of  the  Xn- 
tional  Guard  of  California,  and  has  also  repre- 
sented   the    State    as    State    senator    from    the 


I  hirty-first  Senatorial  District  for  the  term  of 
four  years.  In  the  State  senate  he  was  bold, 
dashing  and  independent,  and  was  one  of  the 
men  not  held  in  leading  strings  by  any  one. 
During  his  senatorial  career  he  did  not  fear 
attacks  from  newspapers.  His  career  .in  the 
senate  was  that  of  a  bold  and  fearless  man,  of 
great  ability  and  personal  courage. 

Mr.  Morehouse  is  duly  licensed  to  practice 
law  in  all  the  courts  of  the  State  and  a  li- 
centiate of  the  Supreme  Court  of  the  United 
States.  His  public  career,  both  as  lawver  and 
politician,  is  a  part  of  the  history  of  the  State. 
He  is  genial  and  social  in  disposition  and  his 
honesty  has  won  for  him  such  confidence 
among  his  fellow-lawyers  that  his  bare  word 
is  always  taken  as  good  as  a  written  stipula- 
tion filed   in  court. 

He  is  married,  and  his  wife  and  two  daugh- 
ters rank  high  in  the  social  circles  of  San 
Jose.  He  is  a  member  of  the  F.  and  A.  M. ; 
I.  O.  O.  F. :  K.  of  P..  and  San  Jose  Lodge  No. 
522,  B.  P.  O.  E.  His  career  is  not  ended,  and 
the  State  will  hear  from  him  further  in  law 
and  politics.  He  has  that  love  for  fair  play 
and  justice,  and  that  nervous  and  sanguine 
temperament  that  cannot  be  still  and  watch 
the  procession  go  by.  He  is  now  in  his  leisure 
moments  writing  many  things,  which  in  time 
the  public  will  know  and  appreciate. 


WILLIAM    W.    MORELAND. 

William  W.  Moreland  was  born  in  Clarks- 
ville.  Johnson  county,  Arkansas,  April  14th, 
1845.  He  came  to  California,  across  the  plains, 
in  1859,  and  lived  for  one  year  at  Angels  Camp, 
Calaveras  county.  Afterward  the  family  re- 
moved to  Stockton,  and  his  mother  still  lives 
near  Collegeville.  in  San  Joaquin  county.  He 
was  educated  at  the  Pacific  Methodist  College, 
at  V'acavillc.  graduating  in  1867.  He  was  a 
schoolmate  of  the  late  Judge  Slatt  F.  John- 
son, of  Sacramento  county :  of  C.  P.  Berry, 
ex-congressman  ;  Hon.  J.  PL  Seawell.  of  Ukiah, 
and  others  who  have  helped  to  make  Califor- 
nia history.  .After  living  eight  years  in  Ore- 
gon, where  he  was  a  teacher  in  Corvallis  Col- 
lege, and  superintendent  of  schools  of  Clack- 
amas comity,  he  returned  to  California  in 
1874,  settling  in  Healdsl)urg,  Sonoma  county, 
whicii  has  been  his  home  over  since. 

Mr.  Moreland  was  ;i  member  of  the  consti- 
tutional convention  of  i87S-():  and  a  State 
senator  in  1879-80-81-82.  He  was  the  private 
secretary  of  George  Stoneman  during  the  timq 
the  latter  was  Governor  of  California.  He 
was  also  a  bank  conunissioner  from  1886  to 
1890.  He  abjured  i)oIiiicaI  life  in  the  latter 
year,  and  has  since  been  engaged  in  practicing 
i.iv.'  in  Stinnma  county. 


C"II\K1.1-S    Wlliri".    MOKTIMI-R. 

Charles  White  Mortimer,  tlie  experienced 
British  vice-consul  at  Los  .Angeles,  was  born 
in  Western  Canada,  .\pril  20.  1852.  He  was 
graduated  from  the  University  of  Trinity  Col- 


904 


History  of  the  Bench  and  Bar  of  California. 


lege.  Toronto,  with  the  degree  of  B.  A.,  in 
1873.  He  studied  law  in  that  city,  and  was 
admitted  to  the  bar  there  in  1879.  The  poor 
state  of  his  health  turned  him  to  California. 
and  he  settled  in  Los  Angeles  in  1882.  He 
has  always  since  lived  in  that  place,  engaged 
in  the  practice  of  law.  He  has  been  the  British 
vice-consul  at  Los  Angeles  since  1883.  In 
1887  his  alma  mater  in  Canada  conferred  on 
him  the  degree  of  ^L  A.  Mr.  Mortimer  has 
a  wife  and  four  children. 


J.  L.  MURPHEY. 

Joseph  L.  Murphey  was  born  in  Lanesbor- 
ough.  Susquehanna  county.  Pennsylvania. 
February  19,  1849.  John  and  Joanna  Murphey. 
his  father  and  mother,  soon  after  his  birth. 
moved  to  the  town  of  Wellsville.  Allegheny 
county,  in  western  New  York.  Here  he  grew 
up  on  a  farm,  attended  the  common  schools. 
the  village  high  school  and  afterwards  Alfred 
University,  situated  at  Alfred  Centre,  in  west- 
ern New  York.  In  vacation  in  the  summer 
of  1865  he  went  to  Pithole.  in  Vinango  county. 
Pennsylvania,  then  the  great  oil  boom  town 
of  the  w^orld.  which  in  that  summer  grew 
from  an  empty  cornfield  to  a  city  of  15.000 
people  in  the  space  of  three  weeks.  Many  of 
the  wells  flowed  as  much  as  1500  barrels  of  oil 
a  day. 

With  another  boy  he  went  into  business,  and 
their  profits  were  as  much  as  $40  per  day  each 
during  the  early  days  of  the  place.  He  kept 
his  eyes  open,  and  became  familiar  with  oil 
operations,  which  knowledge  has  served  him 
well  in  California  as  a  lawyer. 

In  the  fall  of  1865  he  sold  out  at  Pithole  and 
went  back  home,  and  to  school,  leaving  what 
then  looked   like  a   sure   fortune. 

Afterwards  he  taught  school,  studied  law, 
was  admitted  to.the  bar  in  1873,  and  has  been 
in  the  active  practice  ever  since,  with  the  ex- 
ception of  parts  of  1877  and  1878,  which  were 
spent  in  looking  up  a  location  in  Kansas  and 
Colorado,  and  teaching  school  in  Kansas. 
After  looking  up  Kansas  thoroughly,  he 
opened  an  office  in  Atchison.  He  did  not  like 
the  climate,  and  having  been  in  the  mountains 
of  Colorado  the  summer  before,  he  was  again 
attracted  thither,  and.  besides  this,  Leadville 
began  to  open  up  as  a  great  mining  camp. 

In  the  fall  of  1878  he  left  Kansas  and  went 
to  Denver,  and  entered  the  office  of  Browne 
&  Putnam,  who  had  a  large  practice.  Gen- 
eral Browne  was  the  attorney-general  of  the 
territory,  under  appointment  from  Abraham 
Lincoln. 

General  Browne  was  an  able  trial  and  jury 
lawyer,  and  he  pressed  Mr.  Murphey  into  all 
kmds  of  trials,  through  which  he  soon  became 
familiar  with  Colorado  laws  and  practice,  and. 
besides  this.  Captain  Putnam,  w;ho  was  an  au- 
thority on  mining  law,  took  him  through  all 
the  depths  and  shallows  of  mining  litigation, 
and  both  advised  him  to  go  to  Leadville  and 
open  an  office. 

Acting  on  this  advice,  he  went  to  Leadville 
in  January.  1879,  and  at  once  began  law  prac- 
tice. Leadville  at  this  time  commenced  to 
boom,    and    in    February    and    March    a    stam- 


pede to  it  commenced,  and  the  growth  was 
faster  than  at  Pithole,  the  oil  city.  The  first 
day  he  opened  his  office  he  took  in  $100  in 
fees  in  the  afternoon,  in  drawing  np  con- 
tracts and  mining  notices.  He  was  kept  at 
work  until  eleven  o'clock  at  night,  and  had 
to  turn  clients  out,  to  come  back  next  day. 
Within  a  month  he  had  a  good  practice,  prin- 
cipally in  mining  cases. 

Mr.  Murphey  had  good  success  as  an  attor- 
ney, and  also  in  mining  ventures.  He  was  en- 
gaged in  the  Iron-Silver  litigation,  the  Scor- 
pion mine  cases,  and  many  other  mining  suits, 
including  a  case  against  Governor  Tabor  and 
others,  relating  to  the  famous  Robinson  mine 
at  Ten  Mile.  He  was  the  confidential  adviser 
of  many  mining  operators,  among  whom  were 
Tim  Folev.  Spencer  Taylor,  Rogers,  and  the 
Kennebec,  Alpha,  and  other  mining  companies. 
He  remained  in  full  practice  in  Leadville  until 
November,  1887,  when  he  moved  to  Los  An- 
geles, to  go  into  partnership  with  Hon.  W.  P. 
Wade,  author  of  "Wade  on  Notice."  "Mining 
Law,"  and  other  works.  The  last  day  he  was 
in  Leadville  his  office  was  full  of  business,  as 
on  the  first  day  he  opened. 

On  arriving  in  California,  Mr.  Murphey  went 
into  the  practice,  and  so  continued,  with  Judge 
Wade,  until  the  Judge  went  upon  the  bench 
as  Superior  Judge.  He  continued  alone  until 
1893,  when  he  and  the  late  Judge  Gottschalk 
formed  a  partnership,  and  which,  as  Murphey  & 
Gottschalk.  continued  until  June,  1898,  since 
which  time  he  has  been  alone  in  the  practice. 

Soon  after  coming  to  California  he  de- 
fended Messrs.  Carmichael  and  Gardener,  who 
were  charged  with  murder,  before  Judge 
Cheney,  and  a  jury,  which  resulted  in  an  ac- 
quittal. This  was  the  last  criminal  case  of 
importance  which  he  tried.  Although  he  has 
been  very  successful  in  this  line  of  cases,  he 
has  refused  criminal  business,  and  has  devoted 
his  whole  time  to  civil  practice,  and  has  had 
many  important  real  estate,  mining,  water  and 
damage  cases  and  probate  matters. 

With  a  large  and  varied  experience  in  oil. 
mining,  water  and  real  estate  litigation,  he  is 
a   safe  adviser  and  a   successful   advocate. 

In  May.  1888.  at  Chicago.  Mr.  Murphey  mar- 
ried .Augusta  Ascher.  and  they  reside  at  840 
Burlington  avenue.  Los  Angeles.  Before  com- 
ing to  California,  Mr.  Murphey  was  a  captain 
in  the  militia  service,  and  during  the  Spanish- 
American  War  he  assisted  in  organizing  the 
Eighth  Regiment  of  California  Volunteer  In- 
fantry in  Southern  California.  Colonel  W. 
B.  Shant  was  elected  colonel  of  this  regiment, 
and  Mr.  Murphey  lieutenant-colonel.  The  reg- 
iment was  not  needed,  and  was  not  required 
to  go  into  the  service. 


A.  F.  MORRISON. 


-Mexander  F.  ^Morrison  was  born  February 
22,  1856.  at  Weymouth.  Massachusetts.  He  is 
of  Scotch  and  Irish  ancestry.  He  came  to 
California  at  the  age  of  eight  years,  in  1864. 
His  early  education  was  received  in  the  public 
schools  of  San  Francisco.  He  was  graduated 
from  the  Boys'  High  School  in  1874.     In  1878 


A.   F.   Morrison 


History  of  the  Bench  and  Bar  of  California. 


907 


lie  was  graduated  from  the  State  University, 
and  in  1881  was  graduated  from  Hastings 
College  of  the  Law.  While  attending  the  law 
school  he  was  a  student  in  the  law  office  of 
Cope   &    Boyd,    in    San    Francisco. 

Shortly  after  his  admission  to  the  bar  in 
1881,  Air.  Morrison  formed  a  partnership  with 
Thomas  V.  O'Brien,  under  the  name  of 
O'Brien  &  Morrison.  The  firm  was  after- 
wards O'Brien,  Morrison  &  Daingerfield.  With- 
drawing from  that  firm  in  1891,  he  formed 
a  partnership  with  the  late  Constanline  E.  A. 
Foerster,  whicli  lasted  till  the  death  of  Mr. 
Foerster,  in  1898.  About  a  year  before  Mr. 
Foerster's  death  Hon.  W.  B.  Cope  became 
a  member  of  tlie  finn.  which  is  now  Morrison 
&  Cope. 

Mr.  Morrison's  practice  has  been  of  a  gen- 
eral nature,  but  principally  in  the  line  of 
corporation  business.  He  has  had  some  very 
important  cases,  and  suits  involving  property 
of  great  magnitude,  but  none  of  these  have  at- 
tracted much  public  attention.  He  has  suc- 
cessfully represented  great  interests  in  many 
negotiations  of  immense  consequence  and  con- 
cern. He  had  charge  of  the  suit  for  the  set- 
tlement of  the  George  Crocker  trust,  a  trust 
estate  involving  about  four  millions  of  dol- 
lars. He  was  attorney  for  the  estate  of  the 
late  Colonel  Charles  F.  Crocker,  which  was 
appraised  at  eight  millions,  and  which,  not- 
withstanding its  ramified  interests,  was  dis- 
tributed to  the  heirs  inside  of  fifteen  months. 

Mr.  Morrison  took  part,  as  the  attorney  for 
the  Crocker  interests,  in  the  proceedings  that 
resulted  in  the  readjustment  of  the  debt  of  the 
Central  Pacific  Railroad  and  the  acquisition 
of  that  property  by  the  Southern  Pacific  Com- 
pany. He  is  now  attorney  for  the  Crocker 
estate,  the  W^estern  Sugar  Refining  Com- 
pany, the  Spreckels  Sugar  Company,  the 
National  Ice  Cotnpany,  the  Alcatraz  Asphalt 
Company,  the  Crocker-Huffman  Land  and 
Water  Company,  and  the  Sierra  Lumber  Com- 
pany, all  rich  business  corporations.  He  is  a 
member  of  the  board  of  directors  of  each  of 
these  companies.  He  also  numbers  among  his 
clients  such  other  corporations  as  the  San 
Francisco  and  San  Mateo  Electric  Railway 
Company,  the  .American  Beet  Sugar  Company 
(which  owns  the  plants  at  Chino  and  Oxnard), 
the  Risdon  Iron  and  Locomotive  Works,  the 
Mercantile  Trust  Company  of  San  Francisco, 
and  others,  including  many  of  the  local  sugar 
companies  owning  plantations  in  the  Sandwich 
Islands. 

An  incident  in  the  first  of  the  cases  above 
enumerated  deserves  a  place  in  our  annals  of 
bench  and  bar.  We  copy  from  the  San  Fran- 
cisco Wave  of  November  1896.  The  suit  of 
Crocker  vs.  Crocker  was  a  friendly  one,  to 
settle  the  George  Crocker  trust : 

"An  unusual  scene  was  enacted  in  the  court 
of  Judge  Daingerfield  at  the  conclusion  of  the 
suit  of  Crocker  vs.  Crocker.  Decision  having 
been  rendered  in  favor  of  the  plaintiff,  it  came 
to  the  fixing  of  attorney's  fees,  .\lexander  I*". 
Morrison,  who  had  participated  in  the  cause 
as  attorney  for  the  Crocker  estate,  rose  and 
disclaimed    any    desire    for    special    remunera- 


tion, having,  as  he  said,  received  lur  his  serv- 
ices on  behalf  of  the  company,  a  liberal 
monthly  fee.  Tlie  transaction  of  the  business 
came  in  the  line  of  routine,  for  which  he  felt 
amply  compensated.  Under  such  circum- 
stances, however,  it  is  usual  to  make  an  al- 
lowance, and  Mr.  Morrison  anticipated,  but 
with  no  hope,  that  twelve  or  fifteen  hundred 
dollars  would  be  awarded  him.  What  was 
his  surprise  when  Colonel  Crocker  arose  and 
addressed  the  court,  asking  that  Mr.  Morri- 
son's modesty  be  not  allowed  to  influence  his 
compensation.  He  considered  the  faithful  serv- 
ice rendered  worth  at  least  $20,000,  and  trusted 
Judge  Daingerfield  would  not  award  less  than 
$15,000.  Then  Will  Crocker  made  comment 
in  the  .same  vein.  Taken  completely  by  sur- 
prise. Mr.  Morrison  rose  to  protest,  but  sub- 
sided at  a  vigorous  pull  on  his  coat  tails  which 
brought  him  abruptly  back  to  his  chair.  He 
looked  round  with  a  remonstrance  on  his  lips 
and  confronted  the  smiling  face  of  George 
Crocker.  The  harmony  was  too  much,  and  he 
said  no  more,  whereupon  Judge  Daingerfield 
awarded  him  $12,500.  It  is  the  habit  of  the 
Crocker  family  to  reward  thus  liberally  the 
men  to  whom  their  business  interests  are  en- 
trusted. This  is  wh}',  doubtless,  such  excellent 
service  is  always  given  them,  and,  unlike  other 
employers,  they  have  never  to  complain  of 
treachery  or  neglect." 

Mr.  Morrison  is  fond  of  historical  studies 
and  general  literature,  and  has  a  well-selected 
private  library  of  more  than  four  thousand 
volumes. 

He  has  always  been  a  Democrat  in  politics 
— at  least,  up  to  the  time  of  the  Chicago  con- 
vention of  1896.  He  voted  for  McKinley  in 
1896  and  again  in  1900 — although  not  in  sym- 
pathy with  the  imperialistic  policy  of  the  ad- 
ministration, notwithstanding  so  many  Demo- 
crats are  in  hearty  accord   with  that  policy. 

We  once  heard  Thomas  Starr  King,  in  a 
lecture  on  Jol),  after  recounting  the  assets  of 
the  patient  patriarch's  estate,  remark  that  he 
was  "a  very  respectable  man."  Our  good  friend. 
Morrison,  who,  we  believe,  has  no  fiw  on 
earth,  is  a  very  respectable  lawyer  from  more 
than  one  point  of  view.  He  has  a  business 
of  the  first  magnitude,  and  the  skill  and  ability 
to  take  care  of  it.  He  is  one  of  the  safest 
men  to  counsel  with  and  to  trust.  A  great 
many  per.sons  and  corpi>rations  have  fi>und 
this  )Ul,  it  seems.  We  are  glad  to  be  able  to 
say  that  we  have  had  his  friendshii»  and  known 
his  greatness  of  mind  and  his  high  ideals  since 
the  beginning  of  his  career. 


JOSI'.ril    \ AIMI  r.\i.v, 

Joseph  Naphtaly  was  born  Seplember  2Q. 
iSijj.  in  Gostyn,  Prussia.  .After  passing  through 
the  grades  of  the  public  schools.  In-  entered 
the  ••'rench  Gymnasium  at  Berlin.  In  1856  he 
left  the  Gymnasium,  and  c.inie  to  C'alifornia, 
locating  in  San  Francisco,  which  has  been 
his  home  ever  since.  In  that  city  he  entered 
a  private  school  known  as  San  Francisco  Col- 
lege,   and    there    commenced    to    prepare    for 


908 


History  of  the  Bench  and  Bar  of  California. 


the  entrance  examinations  at  Yale.  He  re- 
mained there  until  January.  1859.  when  he 
left  San  Francisco  to  take  a  preparatory  course 
of  study  in  Williston  Seminary,  East  Hamp- 
ton, Mass.  In  September  of  that  year  he 
passed  his  examination  at  New  Haven  and 
was  admitted  to  Yale  College  as  a  member 
of  the  class  of  1863,  in  which  year  he  grad- 
uated, receiving  the  usual  degree  of  B.  A.,  and 
in  due  course  he  received  the  degree  of  M.  A. 

On  returning  to  San  Francisco  he  entered 
the  law  office  of  Crockett  &  Whiting,  as  a 
law  student.  In  1865  he  was  appointed  by 
W'm.  Loewy.  then  county  clerk,  as  his  deputy 
in  the  probate  and  criminal  department  of  the 
courts  of  San  Francisco.  In  1867  he  joined 
Messrs.  Crockett  &  Whiting  in  the  practice 
of  the  law.  and  they  formed  a  partnership  in 
the  name  of  Crockett,  Whiting  and  Naph- 
taly.  That  partnership  continued  until  Judge 
Crockett  became  a  member  of  the  Supreme 
Court  of  this  State,  when  Mr.  Paul  Neumann, 
late  attorney  general  of  the  Hawaiian  Islands, 
was  admitted  as  a  partner,  the  firm  name  be- 
coming Whiting.  Naphtaly  &  Neumann.  This 
partnership  continued  until  Mr.  Neumann  left 
for  the  islands,  and  Mr.  Whiting  retired  from 
practice  on  account  of  ill  health  in  1871.  In 
1872  Mr.  Naphtaly  associated  himself  with 
David  Freidennch  and  Charles  L.  Ackerman, 
under  the  name  of  Naphtaly,  Freidenrich  & 
Ackerman.  This  partnership  has  continued 
ever  since,  and  at  the  same  place.  No.  426  Cal- 
ifornia street,   San   Francisco. 

In  politics  Mr.  Naphtaly  is  a  Democrat.  He 
was  elected  to  the  legislature  in  1869  and  was 
the  chairman  of  the  judiciary  committee  of 
the  assembly.  He  was  attorney  for  Public 
Administrator  Benjamin  for  five  years.  The 
firm  of  Naphtaly.  Freidenrich  &  Ackerman 
were  attorneys  for  Sheriflf  Hopkins  and  Pub- 
lic Administrator  Pennie  during  their  res- 
spective  terms  of  office. 

In  1869  Mr.  Naphtaly  was  married  to  Sarah 
Schmitt.  They  have  two  children,  Samuel  L., 
who  is  an  electrical  engineer,  and  Gertrude. 
the  wife  of  L.  B.  Feigenbaum,  a  merchant. 

Mr.  Naphtaly  belongs  to  the  Masonic  fra- 
ternity and  the  Odd  Fellows'  Order.  He  is  a 
most  generous-hearted  man  and  has  unfailing 
cheerfulness  of  spirit  and  vivacity  of  manner. 


FRANCIS    G.    NEWLANDS. 

Francis  Griffith  Newlands,  who  is  about  to 
enter  upon  his  fifth  consecutive  term  as  a 
member  of  the  lower  house  of  congress  from 
Nevada,  had  his  period  at  the  San  Francisco 
bar — an  active  and  eventful  one.  He  was  born 
in  Natchez,  Miss.,  August  28,  1848.  He  entered 
Yale  College  with  the  class  of  1867,  and  re- 
mained until  the  middle  of  his  junior  year. 
Later  he  attended  the  law  school  of  Columbian 
College,  at  Washington.  D.  C,  but  prior  to 
graduation  was  admitted  to  the  bar  by  the 
Supreme  Court  of  the  District  of  Columbia. 
He  came  to  California  in  1870.  and  began 
the  practice  of  law  in  San  Francisco.  In  1876 
he    formed    a    partnership    with    Reuben    H. 


Lloyd,  which  continued  under  the  style  of 
Lloyd  &  Newlands,  until  1882.  For  the  last 
two  years  of  this  time  Mr.  W.  S.  Wood  was 
a  member  of  the  firm,  which  took  the  name 
of  Lloyd,  Newlands  &  Wood.  Mr.  Newlands 
thereafter  practiced  alone  for  about  two  years 
and  then  became  associated  with  ex-Superior 
Judge  James  M.  Allen  (Newlands  &  Allen). 
Mr.  Wm.  F.  Herrin  entered  the  firm  in  1886, 
and  "Newlands,  Allen  &  Herrin"  continued 
business  down  to  1893,  although  Mr.  New- 
lands  removed  from  the  State  in  the  spring  of 
1888,  locating  in  New  York  City.  Late  in 
the  same  year  he  removed  to  Reno,  Nevada, 
which  has  ever  since  been  his  residence. 

While  practicing  in  San  Francisco,  Mr. 
Newlands  was  for  some  years  the  attorney  for 
the  Spring  Valley  water  works.  He  married 
a  daughter  of  William  Sharon,  capitalist  of 
San  Francisco  and  United  States  senator  for 
Nevada.  He  and  Mr.  Frederick  Sharon  were 
executors  of  William  Sharon's  will.  Senator 
Sharon,  who  died  in  November,  1885,  had,  in 
a  trust  deed.  conveye.I  a  third  of  his  vast  es- 
tate to  the  three  children  of  Mr.  Newlands, 
the  latter  having  lost  his  wife  in  1883.  Mr. 
Newlands  was  one  ot  the  trustees  of  the  trust 
estate. 

On  his  way  to  the  east  on  a  visit  in  1887, 
Mr.  Newlands  sent  to  the  San  Francisco  Bul- 
letin, from  Los  Angeles,  a  communication  of 
two  and  a  half  columns  on  San  Francisco 
municipal  affairs.  (Bulletin,  March  25,  1887.) 
During  his  residence  in  San  Francisco,  he  was 
always  of  Democratic  politics.  His  name  was 
prominently  mentioned  before  the  Democratic 
legislature  of  1887  for  United  States  senator. 
George  Hearst  was  chosen  at  that  time.  L^pon 
nioving  to  Nevada.  Mr.  Newlands  engaged 
actively  in  the  agitation  of  the  silver  question, 
which  became  paramount  in  the  silver  state, 
and  aided  in  organizing  the  Silver  party.  He 
was  for  years  vice-chairman  of  the  National 
Silver  committee.  He  was  also  active  in  the 
work  of  reclaiming  arid  lands  by  irrigation. 

Mr.  Newlands  was  first  elected  to  congress 
in  November,  1892.  by  the  Silver  party  and 
the  Silver  Republicans,  defeating  the  regular 
Republican  and  regular  Democratic  nominees. 
As  the  representative  of  the  Silver  party  he 
has  been  in  that  body  since  March  4.  1893, 
so  that  the  term  for  which  he  has  just  been 
elected  will  complete  ten  years  of  service. 
He  has  become  one  of  the  most  useful  and 
influential  members,  as  he  has  always  been 
one  of  the  best-liked.  He  is  a  sound  lawyer, 
a  pleasing  speaker,  a  ready  debater,  and  a 
close  student  of  state  and  national  problems. 

Mr.  Newlands.  a  few  years  after  the  death 
of  his  first  wife,  married  a  daughter  of  the 
eminent  lawyer.  Hall  McAllister,  of  San  Fran- 
cisco. 

THOMAS  W.  NOWLIN. 

Thomas  W.  Nowlin  was  born  in  the  State 
of  Pennsylvania.  January  4th.  1848.  and  emi- 
grated with  his  parents  to  the  State  of  Iowa 
in  1851,  where  he  grew^  up  on  the  banks  of 
the   Mississippi   river.     He   entered   the  Union 


Lyman  L  Mo<wry 


History  of  the  Bench  and  Bar  of  California. 


911 


Army  in  1864,  at  the  age  of  sixteen  years,  and 
made  the  campaigns  through  Georgia  and  the 
Carolinas  in  Sherman's  army.  Upon  his  dis- 
charge from  the  service  he  entered  Cornell 
College  and  was  graduated  in  the  classical 
course  with  the  class  of  1872.  He  was  super- 
intendent of  the  city  schools  of  Lyons,  Iowa, 
for  two  years  succeeding  his  graduation  from 
college.  He  then  studied  for  the  legal  pro- 
fession under  the  tutorage  of  the  Hon.  W. 
G.  Grohe.  a  well  known  lawj^er  of  Iowa,  and 
throughout   the   Middle   West. 

Mr.  Nowlin  went  to  Nevada  in  1875,  thence 
to  California  in  1876,  where  he  settled  in  San 
Francisco  and  engaged  in  mining  business  for 
several  years.  For  twenty  years  past  he  has 
been  actively  engaged  in  legal  practice  in  all 
lines  of  civil  business.  Mr.  Nowlin  is  iden- 
tified wnth  many  of  the  substantial  interests 
of  the  state.  He  is  a  man  of  excellent  tem- 
perament, and  a  careful  and  honorable  prac- 
tioner,  and  well  merits  the  success  and  favor 
which  have  attended  his  twenty-five  years' 
practice. 

LYMAN    I.    MOWRY. 

Mr.  Mowry  w-as  born  in  Woonsocket  Falls, 
in  the  state  of  Rhode  Island,  on  the  8th  day 
of  April,  1848.  His  parents  belonged  to  two 
of  the  oldest  families  in  New  England,  his 
father's  ancestor  having  been  one  of  the  first 
settlers  in  Rhode  Island,  and  his  mother's 
ancestor  (Whiting),  having  been  one  of  the 
earliest  settlers  in  Massachusetts.  His  father, 
Lyman  Mowry.  came  to  California,  in  1849, 
and  settled  in  San  Francisco,  and  was  one  of 
the  builders  of  that  city.  His  mother,  with 
the  son  and  two  daughters,  arrived  in  San 
Francisco  per  steamship  John  L.  Stephens,  on 
the  i8th  day  of  May,  1854.  The  son  was  ed- 
ucated in  the  public  schools  of  San  Francisco, 
and  received  the  degree  of  Bachelor  of  Law 
(LL.   B.)    from   Harvard   University,   in    187 1. 

Mr.  Mowry  has  been  practicing  law  in  San 
Francisco  ever  since  1871  ;  and  during  that 
time,  his  business  has  been  a  general  one. 
He  was  engaged  in  all  of  the  important  cases 
.-.lising  out  of  the  Chinese  Restriction  and  Ex- 
clusion Acts,  which  cases  involved  important 
(juestions  of  constitutional  and  international 
Unv. 


WALLACE   M.    PENCE. 

Wallace  M.  Pence  was  l)orn  March  27,  i860, 
in  Henderson  county.  Illinois.  He  was  edu- 
cated in  the  public  schools  and  at  Washington 
Academy.  Washington,  Iowa,  and  Western 
Normal  College,  at  Shenandoah.  Iowa.  He 
graduated  from  the  la.st  named  institution  m 
the  teachers'  course,  the  scientific  cour.sc,  and 
the  classical  course.  He  was  instructor  in  that 
college  in  1883-4,  and  later  taught  in  this 
State.  He  entered  the  law  school  at  the  State 
Universitv  at  Lawrence,  Kansas,  in  1887.  He 
was  admitted  to  the  bar  of  the  Supreme  Court 
of  California  in  1892.  He  enjoys  a  lucrative 
practice  at   Salinas. 


GEO.    P.    PHI  BBS. 

Mr.    Phibbs    is    a    native    of    Ireland,    born 
January    12,    1853.    at    Lodge    Park,    near    the 
village   of   Straffan,   County   Kildare.      He   re- 
ceived a  common   school  education  in  his  na- 
tive village  and  at  the  age  of  fifteen  was  ap- 
prenticed to  a  cousin  of  liis   father,  a  leading 
merchant  in  Dublin,  then  engaged  in  business 
as    a    wholesale    and    retail    grocer,    and    wine 
merchant.      At   the   age   of   seventeen   he   emi- 
grated to  the  United  States,  settling  in  Cleve- 
land. Ohio,  where  he  engaged  in  the  commis- 
sion  business.       At  the  age  of   twenty-one  he 
became    a    naturalized    citizen    of    the    United 
states,  and  shortly  thereafter  obtained  a  posi- 
tion   as    clerk    of    one    of    the    law    courts    in 
Cleveland.      He    was   admitted   to    the   bar   by 
the  Supreme  Court  of  Ohio  in  December.  1882, 
and   formed  a   partnership   with  his  preceptor, 
Hon.  John  B.  Green,  ex-state  senator,  and  now 
head  of  the  stamp  department  at  Washington. 
He   practiced   his   profession   until    1887,   when 
he  removed  to   Pomona,   Los  Angeles  county. 
California,  opened  an  oflice.  and  practiced  for 
fifteen  months.     He  then   settled  at    Los  An- 
geles city,  and  engaged  in  practice  there.     In 
March,    1889,   he   was   appointed   clerk   of  the 
police  court,  under  the  new  charter,  and  served 
in   that   capacitj'.   and   as   prosecuting   attorney 
in  that  court,  until  August.  1889,  when  he  was 
appointed  deputy  district  attorney  of  Los  An- 
geles  county,    serving    in   that    capacity    under 
two  administrations,   and   until   January,    1893. 
He  then  formed  an  alliance  with   B.  M.   Mar- 
l)le  under  the  firm  name  of  Marble  &  Phibbs. 
and    immediately   went   into   active   practice   in 
Los    Angeles   city.      1  he    firm    is    still    so    en- 
gaged. 

Mr.  Phibbs  has  been  admitted  to  the  Su- 
preme Court  of  California,  and  to  the  District 
and  Circuit  Courts  for  the  Southern  District 
of  California,  and  the  L'nited  States  Circuit 
Court  of  .\ppeals  for  the  Ninth  Circuit.  His 
firm  has  had  considerable  practice  in  all  of 
those  courts.  He  is  and  always  has  been  a 
Republican  in  politics,  and  was  twice  honored 
l)y  his  party  for  nomination  to  important  of- 
fices. 

W.    T.     PHIPPS. 

William  Tliomas  Phipps  was  born  on  a  farm 
near  Brunswick,  in  Chariton  county,  Missouri, 
on  March  2nd,  1859,  and  at  the  age  of  four 
years  removed  witli  his  parents  to  a  farm 
in  Howard  county,  in  the  same  State,  where  he 
lived  until  the  spring  <if  1878,  when  he  came 
to  Yuba  City,  Sutler  county,  California.  Tlicre 
he  finished  his  public  school  course,  and  fitted 
himself  for  a  teacher. 

I  lis  exi)erience  as  <le|)uty  county  clerk  cre- 
ated in  him  a  desire  for  the  legal  profession, 
and  he  accordingly  in  .Xugust  of  t88o  entered 
upon  the  regular  course  at  Hastings'  College 
of  the  Law,  at  San  Francisco.  From  that 
institution  he  graduated  with  his  class  in  June 
of  1883.  and  was  admitted  to  the  Supreme 
Court  of  this  State.  He  immediately  entered 
upon  the  practice  of  his  profession.  For  the 
first    four    years    he    was    in    partnership    with 


912 


History  of  the  Bench  and  Bar  of  California. 


M.  E.  Sanborn,  and  also  was  assistant  district 
attorney  of  Sutter  county.  Afterwards  he 
practiced  alone,  having  had  his  office  in  Marys- 
ville   since   early   in   the  year   1892. 


JAMES  W.  GATES. 


This  gentleman  is  a  native  of  Alabama.  He 
was  born  and  passed  his  boyhood's  days  in  the 
Yancey  district,  the  storm-center  of  Seces- 
sion, and  his  earliest  recollections  are  of 
that  era  of  political  -verment.  No  American, 
perhaps,  ever  passed  his  boyhood  amid  a  more 
exciting  and  passionate  epoch.  This,  with 
the  privations,  the  glamour  and  horrors  of 
the  war,  and  the  chaotic  times  of  Reconstruc- 
tion, were  the  environment  of  his  early  life. 

He  was  educated  at  Emory  and  Henry  col- 
lege, Virginia.  In  1870  he  returned  home  and 
read  law  in  the  office  of  his  brother,  ex-Gov. 
W.  C.  Gates,  at  Abbeville,  and  was  admitted 
to  the  bar  in  1871,  entering  into  partnership 
with  his  brother,  where  he  continued  until 
March,    1879. 


In  1873-4  he  was  engaged  in  newspaper 
work  in  connection  with  his  law  practice.  In 
1875  he  was  secretary  of  the  Democratic  State 
Central  Committee  during  one  of  the  most  re- 
markable and  hotly  contested  elections  through 
which  the  state  of  Alabama  ever  passed.  His 
party  won,  and  in  recognition  of  his  services 
in  that  contest,  the  committee  presented  him 
with  a  resolution  of  thanks  engrossed  on 
parchment.  The  chairman  of  that  committee 
was  Walter  L.  Bragg,  a  near  relative  of  Gen. 
Braxton  Bragg,  and  who  was  a  member  of  the 
Interstate  Commerce  Commission  during  the 
first  Cleveland  administration.  Senator  John 
T.  Morgan  was  a  member  of  that  committee 
and  one  of  the  leading  speakers.  In  1876  Mr. 
Gates  was  appointed  a  colonel  on  the  staff  of 
Major  General  Holtzclaw,  of  the  State  Na- 
tional Guard. 

In   1879  he  came  to  California  expecting  to 


stay  six  weeks.  Gn  the  third  day  after  his 
arrival  he  determined  to  remain  permanently. 
.•\fter  passing  some  time  in  San  Francisco  he 
located  in  Santa  Rosa,  in  the  spring  of  1881, 
where  he  has  since  lived.  Hon.  Barclay  Hen- 
ley and  Mr.  Gates  were  partners  from  1882 
to  1887,  since  which  time  the  last-named  has 
practiced  alone. 

In  1881  Mr.  Gates  married  Miss  Mattie, 
only  child  of  the  late  Major  Perrin  L.  Solo- 
mon, of  San  Francisco,  who  was  United  States 
marshal  at  San  Francisco,  1858-1861.  He  has 
had  a  lucrative  practice,  and  has  handled 
many  matters  involving  large  mterests.  Dur- 
ing 1884-1889  he  was  a  Special  United  States 
Attorney  for  California  in  charge  of  timber- 
depredation  cases  involving  millions  of  dol- 
lars. He  has  accumulated  a  competency  and 
has  a  large  cliental. 

Mr.  Gates  was  the  nominee  of  his  party  for 
Superior  Judge  in  1890,  the  year  Stanford 
swept  the  State  for  United  States  Senator, 
and  in  common  with  the  most  of  his  asso- 
ciates was  defeated.  In  1894  he  was  nominat- 
ed for  State  Senator  by  acclamation,  and 
though  he  ran  ahead  of  his  ticket  several 
hundred,  was  defeated  by  the  defection  of 
Democrats  to  the  Populists.  He  has  been 
a  number  of  times  solicited  to  accept  the  nom- 
ination for  congress  in  his  district,  but  has 
always  declined,  preferring  practice  and  home 
life  to  the  unsatisfactory  pursuit  of  Federal 
politics. 

Mr.  Gates  has  always  been  a  Democrat ; 
earnestly  advocated  the  Spanish  war ;  favors 
Expansion,  the  holding  of  the  Philippines,  a 
large  navy  and  a  mor^;  vigorous  foreign  pol- 
icy than  this  nation  has  ever  had,  and  a 
national  military  system  sufficient  to  prevent 
the  word  "defeat"  from  ever  being  written 
across   the   history   of   this   nation. 


W.  A.  PURINGTGN. 

W.  A.  Purington  was  born  June  17th,  1858, 
in  Holderness,  New  Hampshire,  where  his 
father  was  pastor  of  the  Free  Baptist  church. 
About  a  year  later  his  parents  returned  to 
Maine,  their  native  State,  where  he  was  reared. 
His  father  became  well  known  during  the 
Civil  War  as  chaplain  of  the  Seventh  Maine 
regiment.  At  the  age  of  eighteen  Mr.  Pur- 
ington entered  Bates  College  at  Lewiston, 
Me.,  but  left  there  two  years  later  to  enter 
Yale  College,  from  which  he  graduated  in 
1880.  Going  to  Minnesota  the  same  year  he 
became  principal  of  Rochester  high  school, 
where  he  remained  a  year.  He  then  went  to 
Illinois  where  he  taught  school  in  Chicago 
and  vicinity  for  six  years.  In  this  period 
he  also  studied  law  and  was  admitted  to  the 
bar. 

In  1888  he  came  to  California  and  opened 
a  law  office  at  Riverside,  where  he  soon  ac- 
quired a  large  and  lucrative  practice.  In  1890 
he  formed  a  co-partnership  with  Mr.  A.  A. 
Adair.  The  firm  of  Purington  &  Adair  has 
continued  since  1890,  and  is  well  known  for 
its  large  and  successful  law  business.  Mr. 
Purington  has  always  been  a  Republican.  He 
was    appointed    city    attorney   of   Riverside   in 


Emit  Nasbaumer 


History  of  the  Bench  and  Bar  of  California. 


915 


189.3.  This  office  lie  has  held  ever  since.  He 
has  occupied  other  public  offices,  but  has  never 
sought  them,  preferring  to  devote  his  entire 
time  and  energy  to  his  profession. 


E.MIL    XUSBAl\MI£R. 

Judge  Nusbaumer  was  born  in  San  Fran- 
cisco, California,  on  February  13th,  1856.  His 
father,  Louis  Nusbaumer.  who  was  born  in 
Baden,  Germany,  was  a  .surgeon  in  the  army 
of  Napoleon  Bonaparte  on  his  disastrous 
campaign  in  Russia,  and  was  involved  in  the 
catastrophe  at  the  bridge  across  the  Beresina. 
The  family  sprung  originally  from  Switzer- 
land. 

Louis  Nusbaumer,  together  with  his  wife, 
emigrated  to  New  Jersey  in  1844.  In  1848  he 
started  across  the  plains  for  California,  arriv- 
ing here  in  the  spring  of  1850,  after  a  most 
arduous  journey.  His  wife  followed  in  1852 
by  way  of  Panama.  After  engaging  in  various 
pursuits,  he  removed  to  Alvarado,  Alameda 
county,  in  the  fall  of  1856.  In  1857  he  re- 
moved to  Pleasanton,  Alameda  count}',  and 
engaged  there  in  merchandising  and  farming, 
living  there  and  in  the  vicinity  until  his  death, 
which   occurred   in  July,   1878. 

His  son,  our  subject,  attended  the  public 
schools  at  Dublin,  Pleasanton  and  Sunol  imlil 
he  was  sixteen,  when  he  engaged  as  a  clerk 
with  Mark  Ager  at  Sunol  for  two  j'ears.  Then 
he  attended  the  University  of  the  State  of 
California  for  two  years,  entering  with  the 
class  of  '79.  Upon  the  termination  of  his 
Sophomore  year,  he  went  to  Ann  Arbor, 
Mich.,  entering  the  law  class  of  the  State 
University  of  1870.  He  was  graduated  there 
and  admitted  to  practice  in  all  the  courts  of 
Michigan.  He  returned  to  California  and  be- 
gan to  practice  law  in  Oakland,  in  June,  1879. 
and  has  ever  since  followed  the  profession  and 
resided  in  that  city.  He  married  in  1H83. 
Elsie  H.  King,  a  native  of  New  York  state. 
They  have  a  son,  Ludwig,  now  ten  years  of 
age. 

Judsfe  Nusbaumer  was  elected  a  justice  <if 
the  i)eace  for  Oakland  townshij),  in  i88j.  for 
two  years,  and  was  re-elected  f<M-  two  additional 
terms,  and  upon  the  ending  of  his  last  term  in 
1888,  he  became  assistant  district  attorney 
under  Hon.  Geo.  W.  Reed,  of  Alameda  county. 
He  served  in  that  capacity  for  four  years  dur- 
ing the  whole  of  Mr.  Reed's  incumbency  of 
that  oftice.  He  there  formed  a  law  parlm-r- 
sbip  wilii  Mr.  Reed,  begiiuiing  with  i8.'^'i),  under 
llu-  name  of  Reed  &  Nusbaumer,  Tlir  firm 
has  continued  ever  since  and  has  i)een  inter- 
ested on  the  one  side  or  the  other  in  nearly 
all  the  important  litigation  subse(|nently  nc 
cnrring    in    Alanuda    county. 

Judge  Nusbaumer  and  his  i):inner.  Mr.  Reed, 
have  always  taken  an  active  p.iri  in  poIilic'>  on 
the  Republican  side. 

Judge  Nusbaumer's  ai)pointmenl  as  a  trustee 
of  the  Garcelon  Trust,  in  Jmie.  i8(K).  was  ;i 
not;ible    illu-l  r.ation    of    llif    contidciu-r    ln'    in 


spires,  and  bore  unusual  testimony  to  his  high 
character  as  a  lawyer  and  a  man.  This  trust, 
involving  a  large  estate,  was  created  in  Feb- 
ruarv.  1891,  and  it  was  provided  therein  that 
in  the  event  of  the  death  of  any  trustee,  his 
successor  should  be  appointed  by  Mrs.  Garce- 
lon's  two  nephews  in  conjunction  witli  the 
Superior  Judge  of  Alameda  County,  who 
should  be  oldest  in  commission.  Judge  Nus- 
baumer was  the  unanimous  choice  of  the 
nephews  and  Superior  Judge  Greene,  in  June, 
1896,  as  successor  of  Trustee  I.  N.  Knowles. 
deceased. 

The  Judge  exerts  a  commanding  influence 
in  the  councils  of  his  party.  He  is  chairman 
of  the  Republican  county  central  committee 
of  his  countv.  a  close  friend  of  Governor  Gage 
and  Congressman  Metcalf,  and  there  is  no 
man  whose  advice  is  more  eagerly  sought  and 
followed  in  every  political  campaign.  He  is 
one  of  the  strong  bar  leaders  of  central  Cali- 
fornia. His  career  in  his  profession  is  an  ex- 
ample to  all  young  men  who  are  looking  to 
the  bar  as  the  arena  of  their  life-work,  marked, 
as  it  has  always  been,  by  high-minded  con- 
duct and  devotion  to  duty.  No  element  of 
chance  has  contributed  to  his  signal  success 
as  a  lawj'er  or  to  his  enviable  position  as  a  citi- 
zen, but  his  victories  have  been  bravely  fonght 
for  and  literally  achieved  by  his  own  strength. 


FRANK  M.  PORTER. 

I-'rank  Monroe  Porter  was  born  in  Waushara 
county.  Wi.sconsin,  in  1857.  He  is  descended 
from  old  Colonial  stock.  In  the  early  part  of 
the  eighteenth  century  the  family  was  located 
in  Connecticut,  and  the  branch  from  which 
he  is  descended  removed  from  there  to  W-r- 
niont  :  from  \'ermont  to  Oswego  county.  New 
\'ork :  and  from  Oswego  county.  New  York, 
his  father  moved  to  Wisconsin.  His  ances- 
tors, both  paternal  and  maternal,  were  prom- 
inent in  the  Revolutionary  War.  His  great- 
gr.indfather,  Moses  Porter,  was  promoted  to 
maior  for  gallantry  in  the  battle  of  Remis 
Ikights,  and  served  throughout  the  Revo- 
lulionarv  War.  The  father  of  this  sketch 
-erved  in  the  Civil  War  in  the  Eleventh  Wis 
consin  \^)lunteers,  and  was  wounded  at  the 
charge  on  Fort  Blakeley.  Mobile,  the  last  part 
of  the  last  battle  in  which  his  regiment  wis 
eiK'aged.  IVoininently  in  hi-^  boyhood  recol 
li'Clions  are  the  hardships  endured  during  the 
lime  of  the  Civil  War.  at  which  time  then-  was 
not  left  an  able-bodied  man  in  the  township 
in    which   his   family  resided. 

.\t  the  close  of  the  Civil  War  his  p.irents 
removed  to  Dodge  county.  Wisconsin,  wliere 
his  father  engaged  in  mercantile  I>nsine>;s.  In 
IX7.T-  lii'^  father  having  in  the  meanlime  died. 
I  lie  family  removed  to  Madison.  Wisconsin 
Mr.  I'orler  was  educated  at  the  Wis<-onsin 
.Siiie  University.  Me  graduated  from  tiie  uni 
\ir>-ity  in  the  class  of  1881.  He  sin<iie(l  l.iw 
in  the  ortiees  of  Hon.  Jolui  M.  Olin  ami  Hon. 
J.  C.  (iregorw  at  M.idi>on.  and  was  gr.id- 
iviled    from    the    l.iw    dep.irtnienl    of    the    ,Statc 


916 


History  of  the  Bench  and  Bar  of  California. 


University  in  1883.  In  that  university  the 
great  college  entertainment  is  the  annua!  joint 
debate  between  the  literary  societies  of  the 
institution.  Mr.  Porter  was  one  of  the  debaters 
representing  his  society,  the  Athenian,  in  the 
contest  of  1881. 


He  served  an  apprenticeship  at  the  ma- 
chinists' trade  from  1869  to  1873,  in  the  Cen- 
tral Pacific  Railroad  shops  at  Sacramento.  He 
was  deputy  county  recorder  of  Yolo  county 
during  1876-7,  during  which  time  he  com- 
menced reading  law.  In  1878  he  returned  to 
Sacramento  and  entered  the  law  office  of  Col- 
onel Creed  Haymond.  as  a  law  student.  He 
was  admitted  to  practice  law  by  the  Supreme 
Court  in  November,   1879. 

In  politics  Judge  Post  has  always  been  an 
uncompromising  Republican,  and  has  been 
honored  by  his  party  with  many  positions  of 
public  trust.  He  served  as  deputy  clerk  of 
the  Supreme  Court  during  the  years  1880- 
1881  and  1882.  He  was  twice  elected  city 
justice  of  the  peace  of  Sacramento  city,  and 
served  both  terms,  to-wit :  from  1884  to  1889. 
He  was  appointed  by  Governor  Markham  to 
fill  a  vacancy  in  the  office  of  city  attorney  of 
Sacramento  city  in  1892,  and  served  one  year. 
He  was  first  deputy  attorney  general  for 
four  years  under  Attorney  General  W.  F. 
Fitzgerald,  during  the  years  1895-98.  In  1899 
he  was  appointed  assistant  attorney  general  by 
Attorney-General  Tirey  L.  Ford,  and  is  at 
present  filling  that  position. 

Judge  Post  is  a  sound  lawyer,  and  an  elo- 
quent advocate  and  public  speaker,  being  es- 
pecially strong  before  a  jury.  He  is  an  en- 
thusiastic  and   prominent    member   of   the   Be- 


Mr.  Porter  was  for  four  years  deputy  clerk 
of  the  Circuit  Court  of  Dane  county.  He  was 
a  member  of  the  Dane  county  bar  until  1887, 
when  he  removed  to  Los  Angeles,  California, 
taking  offices  in  the  California  Bank  Building, 
in  which  building  he  is  still  located. 

Politically,  since  1881,  he  has  been  a  voting 
Prohibitionist,  believing  in  total  abstinence  for 
the  individual  and  prohibition  for  the  State. 
He  was  the  secretary  of  the  Prohibition  state 
central  committee  of  Wisconsin,  and  has  been 
prominently  identified  with  the  organization  '"){ 
that  party  in  California.  He  has  been  their 
nominee  for  Superior  Judge,  presidential 
elector  at  large,  and  for  congress. 

In  1893  he  married  Suella  Billmeyer,  of 
Tecumseh,  Michigan. 

He  is  engaged  in  the  general  practice  of  law. 
His  practice  has  been  mainly  that  of  corpora- 
tion and  commercial  law,  and  he  has  among 
his  clients  some  of  the  heavy  business  men  and 
corporations  of  Los  Angeles. 


CHARLES  \.   POST. 

Charles  Nichols  Post  was  born  in  El  Dorado 
county,  California,  on  the  14th  day  of  March. 
1853.  His  father,  A.  V.  V.  Post,  a  native  of 
New  Jersey,  came  to  California  in  1849,  and 
his  mother,  Cornelia  M.  Post  (nee  Almy),  a 
native  of  New  York  state,  came  to  California 
in  1851.  Mr.  Post  first  attended  the  district 
school  at  Mormon  Island,  Sacramento  county, 
then  at  Folsom,  and  next  at  Sacramento  city, 
at  which  latter  place  he  took  up  his  residence 
in  1864. 


nevolent  and  Protective  Order  of  Elks,  and 
the  Native  Sons  of  the  Golden  West,  being  a 
past  president  of  Sacramento  Parlor  No.  3  of 
the  last  named  order. 

The  Judge  was  married  in  1880  to  Miss 
Nellie  M.  Shepherd,  of  Sacramento,  to  whose 
unfailing  amiability,  remarkably  fine  judg- 
ment and  constant  sympathy  and  support  he 
attributes  much   of  his   success  in  life. 


History  of  the  Bench  and  Bar  of  California. 


917 


HOWELL   A.    POWELL. 

Howell  A.  Powell  is  a  descendant  of  a 
Welsh  family  of  Breconshire.  His  father  was 
a  pioneer  settler  at  the  north  end  of  the 
Marysville  Buttes,  Sutter  county,  in  the  Sac- 
ramento valley,  where  the  son  was  reared 
through  infancy  and  boyhood  with  the  ordi- 
nary encompassment  of  an  early  California 
rancho.  He  received  an  academic  education  ; 
graduated  from  the  State  normal  school  at 
San  Francisco,  in  1867 ;  was  principal  of  the 
Brooklyn  grammar  school  in  Alameda  county 
in  1868 ;  received  a  special  course  in  law  in  the 
office  of  Judge  Blatchley,  of  San  Francisco; 
and  was  admitted  to  the  bar  in  1870,  at  the 
January  term  of  the  Supreme  Court.  He  im- 
mediateh'  established  an  office  in  San  Fran- 
ci.sco,  and  ever  since  has  been  actively  engaged 
in  law  practice,  having  for  many  years  enjoyed 
an  extensive  business  in  the  civil  line.  He  has 
been  emploved  in  some  of  the  most  noted  civil 
cases  of  the   State,   and  in   the   settlement  of 


many  large  and  complicated  estates  in  probate. 
Mr.  Powell  is  now  one  of  the  attorneys  of  the 
City  of  Oakland  in  the  water-front  litigation 
with  the  Southern  Pacific  Company,  which 
litigation  affects  property  of  greater  value  per- 
haps than  any  heretofore  involved  west  of  the 
Rocky  mountains.  He  was  a  member  of  the 
board  of  freeholders,  elected  in  1889,  which 
framed  the  present  charter  of  Oakland,  and 
was  the  author  of  that  provision  of  the  charter 
which  makes  it  compulsory  upon  the  city 
council  to  grant  franchises  within  certain  terri- 
tory contiguous  to  the  water  front,  to  any 
railroad  company  that  may  seek  to  enter  the 
city.  In  national  and  State  politics.  Mr. 
Powell  has  always  been  a  Republican.  In  the 
presidential  election  of  1896,  he  was  the 
McKinley  elector  representing  the  third  con- 
gressional district,  and  received  the  highest 
vote  of  his  party  in  thirteen  counties  of  the 
State.  His  speech  in  Oakland  during  the 
campaign  on  silver,  the  tariff  and  civil  service, 
before  the  National  Repul)lican  League,  which 
was  published  verbatim  in  the  Oakland  En- 
quirer, was  said  to  have  contributed  largely  in 


saving  the  State  for  his  party  in  that  cam- 
paign. Outside  of  Alameda  county,  the  State 
went  Democratic  in  the  neighborhood  of  3.000 
votes.  Alameda,  Mr.  Powell's  county,  gave 
the  McKinley  electoral  ticket  a  majority  of 
over  5,000.  He  is  now  serving  his  second 
term  as  a  member  of  the  Oakland  board  of 
education.  He  has  resided  in  Oakland  since 
i8f)8.  In  1876,  Mr.  Powell  was  married  to 
Miss  Mary  E.  King.  Four  children  have  been 
born  to  them,  two  daughters.  Eva  and  Helen, 
and  two  sons,  Alvin  and  Stanley. 


ISAAC  H.   PRESTON. 

Isaac  H.  Preston  was  born  in  Carroll 
county,  Illinois,  in  1859.  He  was  educated  in 
the  common  schools  and  at  Rock  River  Uni- 
versity, Dixon.  Illinois.  He  came  to  Califor- 
nia and  located  at  Los  Angeles  in  1882.  There 
he  studied  law  under  Judge  Waldo  M.  York, 
and  was  admitted  to  the  bar  in  1892  by  the 
Supreme  Court.  In  1893  he  undertook  the 
management  of  the  G.  W.  Morgan  estate, 
which  was  deeded  to  him  in  trust  for  the 
benefit  of  the  creditors,  and  two  years  later 
the  estate  of  Ralph  Rogers,  also  deeded  to  him 
for  the  benefit  of  certain  creditors.  These 
were  large  and  valuable  estates,  which  were  in 
an  embarrassed  condition,  and  which  he  suc- 
ceeded in  settling  in  a  satisfactory  manner. 

In  1900  Mr.  Preston  was  employed  in  the 
famous  Harris  litigation  in  the  state  of  Wash- 
ington, consisting  of  a  divorce  suit,  and  five 
civil  suits,  resulting  therefrom,  the  whole  in- 
volving over  three  hundred  thousand  dollars, 
and  which  he  succeeded  in  settling  out  of 
court  in  a  remarkably  short  period  of  time,  to 
the  satisiaction  of  his  client. 

Mr.  Preston  is  a  man  of  family,  having  a 
wife,  and  one  daughter,  twelve  years  of  age. 
He  has  a  large  office  practice,  and  gives  at- 
tention principally  to  probate  business  and 
complicated   land   matters. 


JOSEPH  D.  REDDING. 

This  gifted  and  versatile  "native  son."  who 
gave  up  a  valuable  clientage  in  San  Francisco 
io  follow  the  profession  in  New  York  City, 
comes  back  to  the  "Golden  West"  every  year 
foi  an  extended  stay."  His  heart  is  always 
here.  When,  in  1899,  wc  sent  him  a  copy  of 
Colonel  Baker's  famous  speeches,  he  wrote  to 
us.  .saying: 

"Thos.  Starr  King's  "Substance  and  Show  ' 
has  been  the  favorite  volume  on  my  shelf 
for  years.  .Mongside  of  it  I  now  place  this 
book,  with  an  intense  feeling  of  pride  and 
gratification  that  from  out  of  California  have 
come  some  of  the  purest  English  and  choicest 
oratory  to  be  foinid  in  liler.ittue." 

Mr.  Redding  was  born  at  Sacramento.  Cali- 
fornia, on  the  13th  day  of  September.  1S58, 
conn'ng  of  an  old  Massachusetts  family.  His 
grandfather  was  Ignited  Slates  consul  at  \:\\- 
mouth.  Nova  Scotia,  where  B.  B.  Redding, 
father  of  Joseph  D..  was  born  in  1824.  B.  B. 
Redding   early    developed    a    taste    for   natural 


918 


History  of  the  Bench  and  Bar  of  California. 


history.  He  came  to  California  from  Yar- 
mouth with  a  company  of  young  men  he  had 
oiganized,  and  who  served  as  crew  of  their 
own  sailing  vessel,  and  bringing  a  cargo  of 
lumber.  This  was  in  May,  1850.  B.  B.  Red- 
ding's  career  in  this  Slate  was  distinguished 
for  industry  and  public  spirit.  He  served  in 
the  legislature,  was  prominent  in  politics,  for 
many  years  a  leading  journalist,  mayor  of  Sac- 
ramento in  185O,  and  Secretary  of  State 
1863-1867.  From  1868  until  his  death  in  1882 
he  was  the  land  agent  of  the  Central  Pacific 
Railroad  Company.  He  was  a  regent  of  the 
State  University,  president  of  the  Board  of 
Trustees  of  the  San  Francisco  Academy  of 
Sciences,  and  was  the  controlling  spirit  of 
the  Board  of  State  Fish  Commissioners.  He 
was  devoted  to  science.  He  wrote,  among 
other  papers  in  that  line,  one  on  the  climate 
of  California,  for  the  State  Agricultural  So- 
ciety in  1877,  and  another  on  the  foothills  of 
the  Sierra,  read  before  the  San  Francisco 
Academy  of  Sciences,  in  January,  1879.  His 
father  survived  him  for  several  years,  dying 
at  a  great  age  at  Brighton,  Sacramento 
county. 

Joseph  D.  Redding,  after  attending  the  Sac- 
ramento public  schools,  entered,  in  187 1,  the 
California  Military  Academy  at  Oakland,  con- 
ducted by  Rev.  David  McClure.  He  remained 
there  for  two  years,  and  then  went  to  the 
Urban  Academy  in  San  Francisco,  and  pre- 
pared for  a  collegiate  course  under  Professor 
Nathan  W.  Moore.  This  accomplished,  he 
was  admitted  in  1876  into  the  Scientific  De- 
partment   of    Harvard    University. 

Mr.  Redding  was  twenty-one  years  of  age 
when  he  entered  the  law  office  of  Hall  Mc- 
Allister in  San  Francisco,  and  finished  his 
preparation  for  the  bar,  having  given  much 
previous  attention  to  the  study  of  law.  In 
August.  1880,  the  State  Supreme  Court  ad- 
mitted him,  after  examination,  to  practice. 
He  very  soon  gathered  a  good  clientage.  At 
the  age  of  twenty-three  he  became  one  of  the 
attorneys  for  the  Central  Pacific  and  South- 
ern Pacific  Railroad  Companies,  for  the  land 
departments    thereof. 

Mr.  Redding  had  in  charere  all  of  the  cases 
arising  out  of  the  overlapping  of  the  Atlantic 
and  Pacific  Railroad  grant  in  Southern  Cali- 
fornia. These  involved  possibly  seven  hun- 
dred and  fifty  thousand  acres  of  land.  He 
was  attorney  for  several  insurance  companies 
and  mercantile  houses,  and  also  for  most  of 
the  theatrical  managers  of  the  State,  and  those 
in  New  York  who  have  connections  with  this 
coast. 

Mr.  Redding  succeeded  to  his  father's  pre- 
dilection for  oisciculture.  For  some  years  he 
was  president  of  the  State  Fish  Commission 
and  special  agent  of  the  United  States  Fish 
Commission  for  the   Pacific  Coast. 

He  was  a  central  figure  in  circles  of  art. 
In  1886  he  became  president  of  the  San  Fran 
Cisco  Art  Association.  He  was  the  first  of 
chess  players  in  California,  having  held  the 
championship  for  i884-'85.  In  1884  he  won 
three  eames  from  the  world's  champion  in 
chess.  Dr.  Zuckertout.  In  aid  of  charity  he 
;ippcarcd    on    the    theatrical    stage    on    several 


occasions.  In  1878  he  won  the  cue  at  bil- 
liards in  the  tournament  at  Cambridge. 

Mr.  Redding  possesses  genius  in  the  line 
of  musical  composition.  Here  he  challenges 
special  attention.  Miss  Ella  Sterling  Cum- 
mins presented  this  side  of  his  mind,  in  a 
way  pleasing  to  the  musical  world,  in  a  very 
entertaininp^  contribution  to  the  San  Francis- 
can of  May  8,  1886.  Mr.  Redding  was  for 
a  long  time  president  of  the  Handel  and 
Haydn  Society  of  San  Francisco.  He  has 
written   several  comedies. 

Mr.  Redding  removed  to  New  York  City 
in  1895.  He  is  associated  in  a  large  practice 
with  Mr.  James  McNaught,  under  the  style 
of  McNaught  &  Redding.  He  has  a  family, 
and   a   moderate   fortune. 


D.  G.  REID. 


Daniel  Garrard  Reid  was  born  October 
24th,  i860,  near  Manchester,  Kentucky.  His 
maternal  ancestor.  Governor  James  Garrard, 
was  a  descendant  of  one  of  the  French  Hu- 
guenots. Governor  Garrard  was  largely  in- 
strumental in  the  passage  of  the  Toleration 
Act  in  the  House  of  Burgesses  of  Virginia, 
and  was  the  only  man  ever  elected  twice  as 
Governor  of  the  commonwealth  of  Kentucky. 
Through  his  grand-parents  on  both  sides,  Mr. 
Reid  traces  his  ancestry  to  the  old  New  York 
Dutch,  the  English,  the  French  Huguenots, 
and    Scotch-Irish.      Having   finished    his    edu- 


.^    'wv 


-^iir      -. 


cation  at  North  Georgia  Agricultural  College 
at  Dahloncga,  at  the  age  of  21,  he  started 
west.  He  lived  in  Nevada  for  tiirce  years, 
sixteen  months  of  the  time  being  spent  as  a 
guard  at  the  Nevada  state  prison,  his  uncle, 
Major  William  Garrard,  being  warden. 

While  in  Nevada  he  spent  all  of  liis  spare 
time  studying  law.  and  in  August.  1884,  he 
went  to  Eureka,  California,  where  he  entered 
the  law  office  of  John  A.  McQuaid  to  finish 
his  studies.  He  was  admitted  to  the  practice 
of  law  before  the  Superior  Court  of  Humboldt 
county,  by  Judge  John  J.  De  Haven,  on  June 
6th,  1885,  and  the  following  January,  while  en 


I 


Geo.    W.  Reed 


History  of  the  Bench  and  Bar  of  California. 


919 


route  to  Weavervillc  to  locate,  procured  by 
his  own  efforts  a  special  examination  and 
was  admitted  to  practice  before  the  State 
Supreme  Court.  It  was  a  noteworthy  fact  that 
only  four  special  examinations  were  given 
in  eight  years,  and  Mr.  Reid  often  wonders 
how  he  secured  his,  when  he  did  not  know 
any  of  the  judges  and  no  attorneys  in  San 
Francisco,  and  had  no  assistance,  not  even 
filing  his  certificate  of  examination,  as  re- 
quired by  the  rules,  until  after  his  license 
had    been    granted. 

He  continued  to  practice  at  Weaverville, 
until  May,  1897,  when  he  formed  a  partner- 
ship with  James  W.  Bartlett,  under  the  firm 
name  of  Reid  and  Bartlett,  with  offices  at  Red- 
ding and  Weaverville,  and  moved  to  the  for- 
mer place  where  he  still  resides.  On  May 
19th,  1887.  he  married  Miss  Mary  Elizabeth 
Allen,   of  Douglass   City,   California. 

Mr.  Reid  was  a  member  of  the  Board  of  Ed- 
ucation of  Trinity  county  in  1893  and  1804. 
and  was  elected  a  member  of  the  assembly 
from  Trinity  and  Tehama  counties  in  1894 
as  the  Democratic  nominee.  He  took  a  prom- 
inent part  during  the  session  of  1895,  being 
largely  instrumental  in  preparing  and  passing 
the  revenue  laws  of  that  session. 
S.  In  1896  he  ran  for  Superior  Judge  of  Trin- 

■"  ity  county,  but  was  defeated  by  seventeen 
x/otes.  He  has  had  quite  a  wide  experience 
in  the  practice  of  law,  and  in  two  cases  after 
the  acquittal  of  his  clients  for  murder,  he 
has  had  to  have  them  put  back  into  jail  until 
they  could  be  spirited  away  to.  prevent  them 
from  being  lynched  by  mobs.  He  was  en- 
gaged in  the  defense  of  the  Erickson  murder 
cases,    also    the    Littlefield    lynching    cases. 

The  case  of  Gibson  vs.  Board  of  Super- 
visors of  Trinity  County  was  instituted  and 
carried  through  by  Mr.  Reid  to  a  successful 
termination,  and  is  the  only  bond  election  con- 
test  case  on   record  in  the   reports. 

He  and  his  firm  enjoy  a  large  and  lucra- 
tive practice,  especially  in  mining  cases. 


GEORGE   WILLIAM   REED. 

George  William  Reed,  of  ibe  prominent  and 
active  law  firm  of  Reed  &  Nusbaumcr.  of  Oak- 
land, has  lived  in  that  progressive  city  from 
the  city's  infancy,  for  the  date  to  which  his 
residence  there  runs  back  is  November  14, 
1856.  We  knew  the  place  in  that  year  well, 
and  there  was  not  much  of  it,  but  it  was  more 
oak-land  then  than  ever  since.  The  now  pop- 
ulous and  delightful  place  was  a  grove  of  oaks, 
diversified  with  scattered  homes  and  a  dimin- 
utive business  center.  The  indigenous  forest 
has  been  subducted  to  its  last  shadow,  but 
the  si.ghtly  city  that  has  succeeded  is  still 
more  beautiful,  with  varied  flora  invited  by 
the  desire  of  man  and  kepi  green  by  his  im- 
tiring   hand. 

Mr.  Reed  was  born  in  Vassalbord,  Maine, 
on  June  14.  1852,  so  that  he  has  lived  in  Oak- 
land since  he  was  four  years  old.  He  there 
attended  the  public  schools,  and  prepared  for 
the  University  of  California  at  the  Oakland 
College.     In    1872.   at    the   age   of   twenty,   he 


was  graduated  from  the  univcrsuv,  with  the 
.  degree  of  A.   M. 

in  1876,  Mr.  Reed,  his  brother,  Mr.  Reed 
bemg  county  clerk,  became  a  deputy  in  the 
hitter's  otfce,  and  served  as  such  for  two 
terms,  or  four  years.  During  this  period  he 
studied  law  at  night  under  the  direction  of  that 
able  lawyer,  James  C.  Martin,  since  deceased, 
his  duties  as  a  deputy  clerk  affording  him  ex- 
cellent opportunity  to  become  acquainted  with 
the  details  of  law  practice.  He  was  admitted 
to  the  bar  by  the  State  Supreme  Court  in  1879. 
and  entering  the  office  of  another  of  Oakland's 
gifted  lawyers  (A.  A.  Moore),  he  l)egan 
practice  and  followed  it  for  nine  years.  He 
was  then,  in  the  fall  of  1888,  elected  on  the 
Republican  ticket,  to  the  office  of  District  At- 
torney of  Alameda  county.  He  was  re-elected 
in  1890,  his  incumbency  covering  four  years. 
His  was  a  faithful  and  able  administration  of 
that  important  office,  marked  by  the  wise  dis- 
position of  great  public  interests  and  the  suc- 
cessful prosecution  of  some  noted  criminals. 

Ex-Judge  Emil  Nusbaumer  was  assistant 
District  Attorney  under  Mr.  Reed,  and  at  the 
end  of  their  public  service  the  two  gentlemen 
resumed  law  practice  at  Oakland  in  partner- 
ship under  the  style  of  Reed  &  Nusbaumer. 
The  firm  has  ever  since  then  (1893)  been  fully 
occupied  with  a  general  practice  steadily  in- 
creasing in  volume  and  value. 

Mr.  Reed  is  a  man  always  true  to  duty, 
alert,  ready  and  sedulous,  "unhasting,  un- 
resting," and  is  one  of  the  strongest  men  at 
the  bar.  He  came  from  sturdy  and  industrious 
New  England  stwk.  He  is  now  in  the  prime 
of  life,  but  continues  the  steady  and  studious 
habits  of  his  younger  manhood.  He  is  a  very 
excellent  man  personally  and  socially,  pleas- 
ant in  address,  a  good,  prompt  speaker  and 
debater,  easy  in  conversation,  courteous  and 
punctual  in  his  professional  and  other  en- 
gagements. In  his  office  business  he  is  pains- 
taking, and  unflagging,  having  few  e(|uals  in 
drafting  papers  that  stand  judicial  test.  His 
skill  as  a  pleader  is  attested  hi  many  decisions 
of  the   Superior   and    Sunremc   Courts. 

Being  an  ardent  ReDublican.  he  has  always 
taken  an  active  jiart  in  j)oIitics.  frequently  as- 
sisting in  "stumiiing"  during  tlie  state  and 
national  camnai<nis.  He  was  a  delegate  from 
the  Third  Congressional  District  of  California 
to  the  national  convention  which  nominated 
McKinley  and  Roosevelt  for  president  and 
vice-i>resident. 

He  has  for  several  years  been  a  prominent 
member  of  the  Benevolent  and  Pnitective  Or- 
der of  Elks,  is  past  exalted  ruler  of  Oakland 
Lodge.  No.  171,  ami  in  the  year  kkx)  was 
a  delegate  to  tiie  grand  lodge  which  met  at 
.All.iiilic    Cilv.    New    Jersey.  He    is    a    past 

grand  of  I'liiversity  Lodge,  No.  144.  j.  ().  O. 
v..  and  a  member  of  the  Zeta  Psi  of  the  Uni- 
versity of   California. 


Ji)S.     ROTHSCHILD. 

Mr.  Rothschild  is  today  one  of  our  leaditig 
commercial  lawyers.  We  do  not  mean  by 
this   that    his   practice   is   entirely   commercial. 


920 


History  of  the  Bench  and  Bar  of  California. 


for  he  has  tried  cases  in  every  department 
of  civil  law,  but  that  the  drift  has  been  in 
the  direction  of  commercial  litigation,  and 
this  constitutes  a  large  part  of  his  practice. 
We  do  not  think  we  err  in  stating  that  this 
is  regarded  as  the  cream  of  legal  business, 
and  the  man  who  can  command  it  must  have 
given  proof  of  an  ability  of  the  first  order. 
It  is  the  practice  that  in  every  large  city  be- 
longs to  the  few.  Friends,  influence  or 
wealth  are  all  powerless  to  command  it.  It 
seeks  pure  merit,  and  merit  alone  can  win  the 
laurels.  In  great  emergencies  the  best  is 
called  for,  and  in  commercial  cases  where 
large  interests  are  at  stake  the  best  men 
are  sought  regardless  of  any  prior  afifiliations. 
It  is  to  the  credit  of  any  man  that  he  can  at- 
tain such  position  in  a  conmnmity.  It  evi- 
dences not  alone  natural  ability  but  hard  work 
and  close  study.  Natural  ability  alone  would 
not  count.  This  must  be  reinforced  by  in- 
tense diligence.  Mr.  Rothschild  has  worked 
his  way  upward  alone  and  unaided.  In  civil 
law  it  is  a  slow  process,  but  with  the  essentials 
to  success  it  is  a  sure  process.  .And  he  can 
now  regard  the  past  years  with   ail   ihe  more 


satisfaction  that  they  have  been  so  fruitful, 
and  that  by  his  ability  and  industry  he  is  the 
representative  of  .so  many  great  concerns, 
and,  when  we  take  the  aggregate  amount,  of 
vast  capital.  Joseph  Rothschild  is  a  native 
son.  He  is  a  Californian,  and  very  proud 
of  it.  His  learning  in  ordinary  topics,  as  well 
as  in  the  law,  came  from  our  schools.  He 
stands  as  a  fine  type  of  our  best  young  men 
therefore.  It  is  true  he  finished  at  Yale  and 
took  his  degree  there  in  1873  with  honors, 
but  the  basis  of  his  knowledge,  the  great 
Ix'tter  part  was  gained  here.  He  went 
through  all  the  grades  of  our  schools  up  to 
the  State  University  where  he  was  gradu- 
ated   before    going    to    Yale. 

In  his  school  days  he  was  as  popular  as 
he  has  been  since.  The  boy  is  father  to  the 
man.  indeed,  in  this,  as  in  other  things.  At 
Yale  he  well  represented  his  native  State, 
and    was    highly    esteemed    by    professors    and 


pupils  alike,  so  much  so,  indeed,  that  the 
Scales  of  Justice  was  awarded  him.  This 
unique  present  is  peculiar  to  Yale,  we  believe, 
and  is  given  at  the  close  of  the  term  to  the 
most   popular   man. 

On  his  return  to  this  State,  Mr.  Rothschild 
was  admitted  to  the  practice  of  his  profession 
by  the  Supreme  Court.  He  at  once  began, 
and  from  that  day  down  to  the  present  he  has 
known  but  little  idle  time.  As  we  stated  be- 
fore in  speaking  of  him,  he  has  devoted  him- 
self almost  entirely  to  a  commercial  practice, 
and  in  this  has  had  charge  of  some  of  the 
most  important  cases  tried  here.  Commercial 
law  he  has  thoroughly  mastered,  but  neverthe- 
less he  goes  exhaustively  into  the  details 
of  every  case  in  which  he  is  retained.  To  this 
he  adds  a  thorough  logical  power  before  a 
court  or  judge;  uses  terse  English,  and  di- 
vests his  language  of  all  flowers  of  oratory. 
He  in  fact  is  blunt  and  forcible,  and  in  this  is 
eloquent.  Hence  he  has  been  successful. 
He  is  now  the  advocate  for  some  of  the  most 
important  interests  and  mercantile  houses  in 
the    metropolis. 

Mr.  Rothschild  belongs  to  many  leading  or- 
ganizations.      He    is    past    president    of    the 
Independent  Order  Free  Sons  of  Israel;  past 
president    United    Lodge.    I.    O.    B.    B. ;    past 
president  Golden  Shore  Council  No.  5.  United 
Friends     of     the     Pacific ;     ex-vice     president 
Young     Men's     Hebrew     Association ;      past 
president    Board   of   Relief.    I.    O.    B.    B.      He 
is    also    past    grand    president    of    the    Inde- 
I)endent  Order  B'nai  B'rith ;  when  he  attended 
the    international    convention    as    a    delegate 
from    the    district    grand    lodge    here,    held    in 
Richmoiid,    Va.,    he    was    elected    there    Judge 
of  the  Court  of  Appeals  for  this  coast,  and  to 
this    important    position    he    was    afterwards 
re-elected  at  Cincinnati,   Ohio,  which  position 
he   still   holds.     This   body  is   certainly   repre- 
sentative  of   the   wealth   and   intellect   of   our 
Hebrew    citizens,    and    his    election    gives    evi- 
dence of  his  standing.     The  favor  with  which 
he  is  regarded  by  his  own  people  is  indeed  the 
very    best    test    of    his    integrity.         In    politics 
Mr.  Rothschild  has  always  been  a     Democrat. 
He    was    elected    school    director    some    years 
ago.   and   the   flattering  vote   he   then   received 
showed  his  popularity  with  the  whole  people. 
He  was  elected  president  of  the  Democratic 
central   committee  of  San   Franciscco  in   i8q6. 
He  is  a  member  of  the  Iroquois  Club  of  San 
Francisco.     He  is  a  director  of  the  the  Pacific 
Paving  Company;  president  of  the  Sa^i   Fran- 
cisco Diamond  House:  president  of  the  B'nai 
IVrilh    Hall    Association,    and    also    a    member 
of  the  Vale  and  Concordia  Clubs  of  San  Fran- 
cisco. 


HENRY  H.  RETD. 


Henry  H.  Ri-id  was  born  at  Babylon.  N.  Y., 
.March  !/<  1845,  a  farmer's  son,  of  Scotch- 
English  lineage.  He  was  graduated  from 
Columbia  College  Law  School  in  1868.  After 
a  short  practice  in  New  York  city,  he  removed 
in  the  fall  of  1871  to  Norfolk.  Virginia,  where 
he  soon  won  a  firm  place  in  the  esteem  of  the 
people   and   secured   a   valuable   clientage.     He 


History  of  the  Bench  and  Bar  of  California. 


921 


quickly  stegpcd  into  the  frt)nt  rank  of  the 
Norfolk  bar,  while,  apart  from  the  profes- 
sion, his  scholarsiiip  and  address  made  him  the 
soul  of  literary  and  social  circles.  It  was  in 
187^  that  he  commenced  practice  at  the  San 
Francisco  bar,  and  he  has  since  followed  it 
there   continuously. 

Mr.  Reid  has  the  impulses  and  intuition  of 
the  true  lawyer.  His  perception  is  fine,  his 
grasp  of  mind  broad  and  firm,  and  his  analysis 
thorough.  An  unassuming  gentleman,  he  yet 
has  great  professional  pride,  which  is  closely 
related  to  his  high  sense  of  personal  honor 
and  his  superior  legal  attainments.  His  mem- 
ory is  true,  he  has  remarkable  power  of  state- 
ment and  illustration,  and  rare  perspicacity ; 
'  is  persistent  in  inauiry;  and  confused  heaps  of 
facts  unfold  into  system  and  harmony  before 
his  searching  and  patient  survey.  Albeit  his 
temperament  is  one  of  reserve,  his  breadth 
of  knowledge  and  his  poise  of  judgment  have 
challenged  the  attention  of  the  bench  and  of 
the   profession   generally. 

A  mere  lawj'er  is  only  half  a  man,  says  high 
authority.  Mr.  Reid  is  not  a  lawyer  merely. 
His  mind  has  many  sides.  He  has  a  rich 
fund  of  general  knowledge.  Since  early  boy- 
hood he  has  been  a  great  reader  and  close 
student.  His  conversation  shows  his  famil- 
iarity with  the  best  writers  of  every  era,  re- 
vealing also  the  well-informed  man — wise  in 
thought,  full  of  happy  suggestion,  and  of  ever 
present  wit. 

"Reading  maketh  a  full  man,"  said  Bacon ; 
"conference  a  ready  man,  and  writing  an  ex- 
act man.  Histories  make  men  wise ;  poets 
witty ;  the  mathematics,  subtle ;  natural  phil- 
osophy, deep ;  morals,  grave ;  logic  and  rhet- 
oric, able  to  contend."  In  Mr.  Reid  these  ef- 
fects all  stand  out  prominently. 

Mr.  Reid  indulged  his  literary  taste  to  a 
limited  extent  in  New  York  and  Norfolk, 
contributing  to  the  columns  of  leading  jour- 
nals ;  but  in  California,  while  still  pursuing 
a  wide  range  of  reading,  he  has  seldom  turned 
his  gen  to  themes  other  than  the  law.  How- 
ever, in  our  book,  "California  Anthology," 
(1880),  are  selections  from  his  writings  here, 
one  being  a  tribute  to  the  genius  of  Oliver 
Wendell  Holmes.  In  Bench  and  Bar  (1889) 
are  some  observations  of  his  upon  Judge  ,Mc- 
Kinstry;  and  the  valuable  Introductory  article 
of  the  present  History  is  from  his  pen. 

In  person  Mr.  Reid  is  of  large  and  compact 
build,  and  of  striking  personal  appearance. 
He  is  a  strong  man  physically,  as  well  as  men- 
tally and  while  of  gentle  disposition  and  tem- 
perate habits,  is  full  of  grit  and  stands  by 
his  convictions. 


J.    C.   RUDDOCK. 

J.  C.  Ruddock  came  to  California  from  New 
York  City  in  the  year  1853,  when  he  was  about 
one  year  old.  His  whole  life  since  has  been 
spent  in  California.  He  was  raised  in  Tuo- 
lumne county,  at  Jamestown,  or.  as  it  was  bet- 
ter known  among  miners,  "Jimtown."  His 
father    was   one   of   the    early    miners   of   that 


section,  having  owned  and  mined  in  several 
rich  placer  claims  on  Wood's  Creek,  a  large 
tributary   of   the   Tuolumne   River. 

Mr.  Ruddock  was  educated  in  the  public 
schools,  and  at  the  age  of  fifteen  obtained  a 
certificate  to  teach,  and  began  at  that  early 
age  at  Green  Springs,  near  Chinese  Camp, 
in  1  uolumne  county.  This  was  his  first  school 
Fmishmg  his  term  there,  he  went  to  the  State 
Normal  School— the  San  Jose  Normal  then 
bemg  the  only  one  in  the  State— from  which 
he  graduated.  After  graduating,  he  taught 
a  term  at  Onisbo  district  (.Courlland),  Sacra- 
mento county,  about  fifteen  miles  down  the 
river   from   Sacramento. 

After  finishing  there  he  went  to  Mendocino 
City,  on  the  coast  of  Mendocino  county,  and 
took  charge  of  the  public  school.  While  at 
this  place  he  was  elected  to  the  office  of  su- 
perintendent of  schools  of  Mendocino  county, 
which  office  he  filled  two  terms,  and  then  be- 
came principal  of  the  Ukiah  Grammar  School. 
In  1882  he  was  again  elected  to  the  office  of 
superintendent  of  schools  for  a  four  years' 
term,  which  position  he  resigned  after  three 
years  and  four  months  to  accept  the  position 
of  chief  clerk  of  the  United  States  surveyor 
general's  office  at  San  Francisco,  under  Presi- 
dent Cleveland's  first  administration.  At  the 
close,  of  this  administration  he  accepted  a  po- 
sition in  civil  life,  as  cashier  of  the  Mercan- 
tile Bank  in  San  Francisco. 

Mr.  Ruddock  early  had  taste  for  law.  and 
while  he  was  superintendent  of  schools  had 
spent  much  of  his  time  reading  on  his  fa- 
vorite subject. 

He  picked  it  up  again,  and  went  before  the 
Supreme  Court,  for  examination,  and  was  ad- 
mitted to  practice,  January   12,   1892. 

In  1890  he  was  the  Democratic  candidate  for 
superintendent  of  schools  of  San  Francisco, 
but  suflfered  defeat,  with  the  rest  of  his  ticket, 
in  the  landslide  of  that  year. 

He  has  remained  continuously  at  the  prac- 
tice of  law  in  Ukiah  since  his  admission,  and 
is,  at  this  writing  (July,  1900)  city  attorney 
of  Ukiah  city. 

Mr.  Ruddock  was  appointed,  by  Governor 
Budd,  one  of  the  board  of  managers  of  the 
Mendocino  State  Hospital,  in  March.  1896.  and 
held  the  same  until  removed  by  Governor 
Gage,  March   i,  1900. 

Mr.  Ruddock  is  a  pronounced  Democrat,  .ind 
has  labored  for  many  years  in  perfecting  the 
organization  of  that  party  in  California,  under 
the  direction  and  auspices  of  the  State  League 
of  Inxiuois  Clubs,  of  which  he  is  Past  Grand 
Sachem,  and  of  which  he  is  at  preseiU  Grand 
Organizer. 

At  the  death  of  Senator  John  Boggs.  of 
Colu.sa.  he  received  a  tie  vote  for  the  nomina- 
tion of  joint  senator  from  the  district  com- 
prising Colusa,  (ilenn  and  Mendocino  counties. 
After  the  tenth  ballot  he  withdrew  in  favor  of 
James  W.  Goad,  of  Colusa. 

In  1880  he  was  married  to  Miss  Kate  Sid- 
dons  of  I'kiah.  who  left  him  a  widower,  in 
July.  1884.  with  a  surviving  child  of  a  family 
of  two.  a  boy  having  died  before  the  mother. 

In    i8go    lie    was    married    to    Miss    Mary 


922 


History  of  the  Bench  and  Bar  of  California. 


Hildreth.  daughter  of  William  J.  Hildreth, 
one  of  the  pioneers  of  Ukiah  Valley  and  Men- 
docino county.  His  family  now  consists  of 
five,  including  himself.  In  politics,  Mr.  Rud- 
dock is  a  hard,  but  fair  fighter.  He  is  radical, 
but  consistent  and  sincere.  His  politics  have 
been  shaped  because  he  is  a  bitter  and  life- 
long opponent  to  the  protective  tariff.  He  was 
opposed  to  the  Spanish  war  :  he  is  against  ex- 
pansion, in  the  ocean,  and  believes  our  mission 
was  ended  in  the  Philippines  when  Spain  was 
driven  out ;  he  believes  the  Constitution  fol- 
lows the  flag,  and  is  opposed  to  anything  that 
savors   of   militarism   and   imperialism. 

In  the  war  in  South  Africa  he  was  a  strong 
sympathizer   with   the   Boers. 

Mr.  Ruddock  is  a  fine  elocutionist,  and  a 
public   speaker   of   force   and  eloquence. 


A.  K.  ROBINSON. 


Alexander  Kelley  Robinson  was  born  July 
26th,  1850,  in  Gallatin  County,  Illinois,  of  a 
Virginia  family,  and  is  a  descendant  of  Speaker 


He  attended  Vale  Colleee,  academical  depart- 
ment, graduating  with  the  class  of  1870.  He 
prepared  for  the  legal  profession  in  the  office 
of  Hamilton  Pope,  and  in  the  law  department 
of  the  University  of  Kentucky,  and  was  ad- 
mitted to  the  bar  in  1872.  Coming  to  Cali- 
fornia in  that  year,  he  entered  the  office  of 
Haggin  &  Tevis,  San  Francisco.  These  gen- 
tlemen were  lawyers,  but  not  engaged  in  prac- 
tice, being  capitalists  of  unlimited  resources, 
and  engaged  in  financial,  mining  and  other  en- 
terprises on  a  grand  scale.  After  passing  a 
year  with  that  firm,  Mr.  Rothchild  removed  to 
Los  Angeles,  and  formed  a  partnership  with 
John  R.  McConnell  and  John  D.  Bicknell, 
which  continued  a  few  years,  under  the  style 
of  McConnell,  Bicknell  &  Rothchild.  He  re- 
turned to  San  Francisco  in  1877,  and  practiced 
alone  until  1887,  when  he  united  with  Mr. 
Henry  Ach,  to  form  the  still  existing  firm  of 
Rothchild  &  Ach.  These  gentlemen  have  al- 
ways   had    a    valuable    practice,    general,    cor- 


Robinson,  of  the  House  of  Burgesses  of  Vir- 
ginia. He  received  a  thorough  education  in  the 
schools  of  Shawneetown,  Illinois.  He  mi- 
grated to  Placer  County,  California,  in  1870; 
studied  law.  and  was  admitted  to  practice  in  all 
the  Courts  or  the  State.  He  has  attained  success 
in  the  profession.  He  was  District  Attorney  of 
Placer  County  in  1890-92,  and  filled  that  office 
with  distinction  and  integrity.  He  has  a 
lucrative  practice  in  Auburn,  and  takes  an  ac- 
tive part  in  the  affairs  of  his  City,  County  and 
State.  He  is  a  member  of  various  fraternal 
orders;  and  has  held  numerous  public  positions 
of  trust.  It  is  said  that  he  combines  the  ur- 
banity and  suavity  of  his  ancestor  with  the 
business  courtesy  and  affability  of  the  West- 
erner. 


J.  M.  ROTHCHILD. 

Joseph  M.  Rothchild,  of  the  prominent  San 
Francisco  law  firm  of  Rothchild  &  Ach,  was 
born  in  Louisville,  Kentucky,  in  January,  1852. 


porate  and  commercial,  whicii  of  late  years  has 
grown  to  very  large  proportions. 

Mr.  Rothchild  married,  at  San  Francisco,  in 
1875,  Miss  Adelaide  E.  Marx,  and  has  three 
children. 

JOHN  E.  RICHARDS. 

Among  the  Native  Sons  of  California  who 
have  achieved  success  in  more  lines  than  one. 
and  exhibited  not  only  a  broad  catholicity  of 
taste  and  .sympathy,  Init  a  versatility  of  talent 
and  an  industry  directed  to  varied  accomp- 
lishments, none  ranks  higher  in  merit  or  in 
repute  among  competent  judges  than  John  E. 
Richards  of  the  San  Jose  bar. 

The  temptation  toward  change  which  besets 
men  of  many  talents,  which  has  led  so  many 
gifted  minds  to  turn  capriciously  from  one 
profession  to  another,  and  to  take  up  a  dif- 
ferent pursuit  at  each  different  epoch  in  life, 
becoming  all  things  by  turn  and  nothing  long, 
has  never  affected  the  course  of  Mr.  Richards. 


History  of  the  Bench  and  Bar  of  California. 


923 


He  has  had  a  mind  sufficiently  strong  to  dom- 
inate his  talents,  instead  of  being  dominated 
by  them.  All  his  faculties  have  been  devel- 
oped continuously,  as  parts  of  a  complete  self- 
education,  and  not  as  diverse  incidents  in  a 
changeful  career.  Consequently,  while  he  has 
achieved  distinction  as  a  lawyer,  writer,  orator, 
poet,  lecturer,  and  professor,  his  career  has 
been  directed  always  toward  eminence  at  the 
bar,  and  all  his  studies  and  his  work  have  been 
made  subservient  to  the  one  object  of  achiev- 
ing that  intellectual  fullness  which  is  essential 
to  the  comprehension  of  law  as  a  philosophy 
of  justice,  as  well  as  a  code  of  procedure. 

Born  in  Santa  Clara  Valley  in  1856,  and 
descended,  on  his  mother's  side,  from  that 
strong  North  of  Ireland  stock  that  has  given 
so  many  illustrious  men  to  American  history, 
and,  on  his  father's  side,  from  the  sterling 
Welsh  race,  Mr.  Richards  passed  from  the 
public  schools  of  San  Jose  to  the  University 
of  the  Pacific,  from  which  he  graduated  with 
the  degree  of  B.  A.  in  1877.  Choosing  the  law 
as  his  profession,  he  entered  the  law  depart- 
ment of  the  University  of  Michigan,  and  tak- 
ing the  full  course,  received  the  degree  of 
LL.  B.  in  1879.  He  then  returned  to  San 
Jose  and  began  the  active  work  of  an  attor- 
ney. A  young  lawyer  in  beginning  practice 
has  always  much  'leisure.  Mr.  Richards  em- 
ployed his  in  studies,  not  only  of  the  law,  but 
of  the  allied  subjects  of  logic,  politics  and  eco- 
nomics. For  three  years  he  served  as  trustee 
of  the  University  of  the  Pacific,  and  as  lecturer 
on  political  economy,  modern  history  and  con- 
stitutional law.  His  incessant  activity  found 
time,  also,  for  literary  work,  and  through  the 
columns  of  the  local  press  he  made  himself 
known  as  a  forceful  writer  of  editorials,  as 
well  as  a  graceful  essayist  and  a  poet  with  a 
true  inspiration  for  melody  and  sentiment.  He 
is  one  of  the  most  logical  rcasoners  at  the 
bar,  and  being  able  to  apply  the  fundamental 
principles  of  law  to  cases  that  come  before 
him.  is  one  of  the  safest  counselors  in  the 
State.  Being  still  a  young  man,  the  better 
part  of  Mr.  Richards'  career  is  in  the  future, 
as  he  has  taken  a  rank  among  the  leaders,  not 
only  at  the  bar,  but  in  the  wider  fields  of  liter- 
ature and  politics. 

Among  the  most  important  cases  with  which 
Mr.  Richards  has  been  associated  during  his 
twenty  years  of  practice  may  be  mentioned 
the  case  of  Richards  vs.  Donner.  in  72  Cal. 
207,  in  which  he  was  plaintiff  as  well  as  advo- 
cate, and  which  is  the  leading  California  case 
upon  the  validity  of  conveyances  made  without 
consideration  by  persons  of  weak  rnind  sub- 
jected to  undue  influence.  The  cases  of  Ed- 
wards vs.  San  Jose  Printing  and  Publishing 
Company,  in  09  Cal.  4.^1.  and  Childers  vs.  The 
^an  Jose  Mcrcitry.  105  Cal.  284,  with  which 
also  Mr.  Richards  was  connected,  are  leading 
cases  upon  the  law  of  libel.  Tn  the  case  of 
Ex  Parte  Flaherty,  in  105  Cal.  S5^.  ^Tr.  Rich- 
ards ably  defended  the  right  of  the  citizen  to 
freedom  of  rclieious  worship;  while  in  the 
case  of  In  Re  Shortridg,e.  in  00  Cal..  52^1.  be 
stood   strongly  and   successfully   for   liberty   r>f 


speech  and  of  the  press.  These  cases  indicate 
the  line  and  character  of  Mr.  Richards'  thought 
and  work  as  a  member  of  the  California  bar. 


JOHN    H.    RUSSKLL, 


John  H.  Russell  was  born  in  Cook  county. 
Illinois,  on  July  16,  1843.  receiving  his  pri- 
mary education  by  working  on  his  father's 
farm  during  sunnner  and  attending  public 
school  in  winter,  until  he  arrived  at  the  age 
of  si.xteen,  when  he  became  a  student  at  the 
Northwestern  University  at  Evanston.  Illi- 
nois. There  he  remained  until  the  breaking 
out  of  the  Civil  War,  at  which  time,  he.  like 
many  others  of  his  fellow-students,  offered 
his  services  to  his  country.  He  became  a  mem- 
ber of  the  Thirty-ninth  Regiment  of  Illinois 
Volunteers,  known  as  the  "Yates  Phalanx," 
so  named  by  the  famous  war  Governor  of  that 
state,  and  shared  with  the  other  members  of 
his  regiment  in  its  first  baptism  of  blood  at 
Alpine  Station,  West  Virginia,  when  they  so 
effectually  repulsed  the  advance  of  Stonewall 
Jackson's  division,  on  January  5.  1862;  but, 
being  vastly  outnumbered  by  the  enemy,  they 
withdrew  across  the  Potomac  River  and  suc- 
cessfully defended  Hancock.  Maryland,  after 
a  terrific  bombardment  by  the  Confederate 
forces.  The  Confederates  then  turned  their 
attention  toward  Romney  and  the  innnense 
government  stores  at  Cumberland,  Maryland, 
to  relieve  which  our  subject  marched  to  Cum- 
l)eriand  with  his  regiment  the  distance  of  forty 
miles  in  twenty  hours.  His  regiment  then  be- 
came a  part  of  the  diyision  of  the  lamented 
General  Lander,  who  was  succeeded  by  Gen- 
eral Shields.  Ihe  skirmishes,  battles,  marches 
and  countermarches  that  followed  during  the 
succeeding  campaign  up  and  down  the  Shen- 
andoah Valley  would  be  tedious  to  the  reader, 
l)ut  suffice  it  to  say  that  this  intrepid  western 
division  administered  to  Stonewall  Jackson  his 
first  and  only  substantial  defeat  at  Kernstown, 
near  Winchester,  on  March  23.  iS()2.  At  the 
close  of  Snields"  o])erati(>ns  in  this  portion  of 
the  Old  Dominion,  the  brigade  to  which  our 
subject  was  attached  was  sent  by  transport 
down  the  Potomac  River  and  up  the  James 
River,  for  the  purpose  of  reinforcing  the  .Xriuy 
of  the  Potomac,  then  about  to  "change  base.' 
It  arrived  in  time  to  take  part  in  the  battle  of 
Malvern  Hill,  and  covered  the  final  retreat  of 
the  army  of  McClellan  down  the  Peninsula; 
garrisoned  Suffolk  for  several  months,  pro- 
ceeded to  Newberne.  N.  C. ;  Hilton  Head.  S. 
C. ;  took  part  in  the  storming  of  Morris  Isl- 
and. I'^orts  Wagner  and  (Jregg.  anti  the  other 
operations  of  the  arniy  in  (ieneral  (iilmore's 
department  in  iW^.  Mr.  Russell  then  re-en- 
listed in  his  old  organi/alion.  which  was  .sent 
lo  the  Department  of  the  James,  and  t<»ok 
p.irl  in  the  sieges  of  Petersburg  and  the  battles 
i)efore  Richmond. 

During  the  winter  of  1864-65  Mr  Russell 
anpeared  before  a  board  of  officers,  convened 
for  that  purpose,  and  was  reconnnended  for 
I)romotion  and  commissioned  a  second  lieuten- 
;ini  in  Ihe  Thirty-eighlh  I'niled  Slates  Colored 


924 


History  of  the  Bench  and  Bar  of  California. 


Troops.  He  was  given  the  command  of  a 
company,  and  when  the  forward  movement 
was  begnn,  led  his  company  over  the  works 
and  into  Richmond,  being  among  the  first  Fed- 
eral infantry  to  enter  that  city,  except  as  pris- 
oners of  war.  After  the  close  of  the  war,  Mr. 
Russell  was  promoted  to  first  lieutenant,  and 
with  the  corps  commanded  by  General  God- 
frey Weitzcl,  was  sent  to  Texas.  The  corps 
performed  duty  along  the  Rio  Grande,  watch- 
ing the  progress  of  reconstruction,  and  more 
especially  observing  the  movements  of  Maxi- 
millian  and  his  "imperial"  army,  and  in  readi- 
ness, if  necessary,  to  enforce  the  Monroe  doc- 
trine. The  weakness  of  the  new  empire  in 
Mexico,  however,  rendered  any  direct  action 
unnecessary.  Lieutenant  Russell  served  suc- 
cessively as  company  commander,  regimental 
and  post  quartermaster  and  aide-de-camp  lo 
the  commanding  general,  and  was  finally  mus- 
tered out  of  the  service  March  i.  1867.  He 
had  served  in  the  armv  more  than  five  and  a 
half  years  continuously. 


seek  office.  He  is  a  member  of  the  Odd  Fel- 
lows, Loyal  Legion,  Grand  Army  of  the  Re- 
public, and  other  organizations. 


FRANK  D.  RYAN. 


This  well-known  lawyer  and  honored  native 
son  was  born  in  Sacramento,  May  11,  1859.  He 
read  law  in  the  office  of  Hon.  Robert  C.  Clark, 
who  was  afterwards  County  Judge  for  a  long 
period.  He  was  admitted  to  practice  by  the 
Supreme  Court,  in  November.  1880.  He  was 
elected  a  member  of  the  assembly  in  1882,  and 
served  as  such  during  the  session  of  1883  and 
the  extra  session  of  1884.  He  was  chief  clerk 
of  that  body  during  the  sessions  of  1885  and 
1887. 

Mr.  Ryan  was  district  attorney  of  Sacra- 
mento county  from  1891  to  1899.  In  that  of- 
fice he  participated  in  the  trial  of  many  im- 
portant cases,  among  the  number  which  at- 
tracted   attention    being    the    cases    of    People 


.-^-^iffiliStef,^ 


Once  home  again,  our  subject  renewed  his 
collegiate  studies,  and  graduated  in  the  year 
1868,  from  the  law  department  of  the  Chicago 
University,  with  the  degree  of  Bachelor  of 
Laws.  He  then  studied  law  in  the  office  of 
D.  G.  Hamilton,  Esq.,  in  Chicago.  He  re- 
moved to  San  Jose,  California,  in  1869.  For 
two  years  he  was  deputy  city  clerk  in  San 
Jose,  and  for  three  years  deputy  county  clerk. 
Since  1880  he  has  been  actively  practicing  his 
profession,  with  what  he  modestly  terms  rca- 
sonaijie  success.  He  has  been  engaged  in  the 
trial  of  many  important  cases. 

Mr.  Russell  is  married  and  the  father  of  a 
promising  son  and  daughter,  both  grown  and 
of  whom  he  is  justly  proud.  He  has  a  happy 
home  in  the  suburbs  of  the  Garden  City.  He 
has  for  many  years  been  a  church  member,  and 
thoroughly  believes  in  love  to  God  and  to 
mankind  as  a  religion.  He  holds  that  it  is 
the  bounden  duty  of  every  citizen  to  give  at- 
tention to  politics  as  the  safeguard  of  the 
country.      He   is   a    Republican,    but   does    not 


vs.  Dolan.  People  vs.  Gardner,  People  vs. 
Jeffries  and  People  vs.  Palmer.  His  career  as 
district  attorney  was  highly  successful,  and  he 
retired  from  the  office  with  the  highest  com- 
mendations of  the  people  of  his  county.  Mr. 
Ryan  has  also  participated  in  the  trial  of  many 
important  civil  actions,  among  which  may  be 
noted  Gillespie  vs.  Winn  and  Miller  vs. 
Mayo. 

Mr.  Ryan  has  been  prominently  identified 
with  the  organization  and  growth  of  the  order 
of  Native  Sons  of  the  Golden  West.  He  was 
one  of  the  incorporators  of  the  Grand  Par- 
lor and  is  a  past  grand  president  of  the  order. 


THOS.  HENRY  SELVAGE. 

Thomas  Henry  Selvage  was  born  on  the 
22nd  of  .'\pril,  1857,  in  Orient,  Aroostook 
county,  Maine.  His  father  was  a  lumberman 
operating  on  the  head  waters  of  the  St.  Croix 
river,  the  dividing  line  between  Maine  and 
New    Brunswick.      During    the    early    life    of 


T/^05.  Henry  Set'vage 


History  of  the  Bench  and  Bar  of  California. 


927 


young  Selvage,  he  followed  the  occupation  of 
his  father,  attending  the  public  schools  when- 
ever the  opportunity  offered.  In  1874  he  came 
with  his  parents  to  California  and  located 
in  Humboldt  county.  He  attended  the  public 
schools  at  Areata,  and  afterwards  spent  a 
year  in  St.  Louis  College  in  British  Columbia. 

Returning  to  Humboldt  county  in  1883,  he 
commenced  the  study  of  law  while  working 
in  the  redwoods.  He  thus  pursued  his  studies 
until  the  spring  of  1887,  when  he  went  into 
the  law  office  of  J.  D.  H.  Chambcrlin,  where 
he  remained  until  the  spring  of  1888,  when  he 
was  admitted  to  the  bar.  He  then  commenced 
the  practice  of  law  at  Eureka.  He  taught 
commercial  law  in  the  academy  at  Eureka  for 
three  years.  In  1892  he  was  elected  district 
attorney  of  Humboldt  county,  and  served 
in  that  office  for  one  term.  He  was  one  of 
the  leaders  in  organizing  the  Humboldt  cham- 
ber of  commerce,  and  was  elected  its  first  sec- 
retary. 

Mr.  Selvage  is  a  Republican  and  has  for 
years  past  taken  an  active  part  as  a  cam- 
paign speaker.  He  is  a  man  of  great  en- 
ergy, an  eloquent  and  forceful  speaker,  and  a 
trial  lawyer  of  superior  ability.  He  has  since 
youth  been  a  great  reader,  his  favorite  studies 
being  history,  biography  and  current  literature. 
He  is  married  and  has  two  children,  a  girl 
and  a  boy. 

T.  H.  Selvage  received  the  Republican  nomi- 
nation for  State  senator,  September,  igoo,  for 
the  First  Senatorial  district  of  California. 

During  the  campaign  of  1900  The  Califor- 
nian  in  its  editorial  columns,  spoke  of  Mr. 
Selvage  and  his  candidacy  for  State  senator 
as  follows : 

"Mr.  Selvage  is  a  lawyer  of  excellent  stand- 
ing and  practice  here,  a  former  district  attor- 
ney, a  cheerful,  tireless  and  able  worker  in  the 
cause  of  the  party,  a  prominent  candidate,  two 
years  ago,  for  the  Republican  nomination  for 
Lieutenant  Governor,  and  a  gentleman  in  every 
way  worthy  of  the  honor  conferred  upon  him. 

"To  the  best  impulses  of  every  workingman 
in  this  senatorial  district,  we  apprehend,  will 
the  candidacy  of  Mr.  Selvage  powerfully  ap- 
peal. It  will  appeal  to  the  best  impulses  of 
all  men  who  admire  decision  in  resolution,  per- 
severance in  performance,  inflexibility  in  the 
convictions  and  fearlessness  in  the  inevitable 
conflicts. 

"By  sheer  force  of  character  has  Mr.  Sal- 
vage risen  from  the  ranks.  Can  we  not  in 
memory  go  back  to  the  time  when  he  was  a 
laborer  and  worked  in  the  woods  ?  Can  vye  not 
recall  his  battles  with  adversity?  How,  in  the 
face  of  discouragements  sufficient  to  appall 
one  less  resolute,  he  studied  law,  was  admitted 
to  practice,  and  in  his  chosen  profession  speed- 
ily achieved  success?  Than  Tom  Selvage  there 
was  never  in  the  history  of  the  First  Sena- 
torial district  a  candidate  more  deserving.  Pos- 
sessor of  a  pleasing  personality.  poi)ular.  an 
indefatigable  worker,  an  attractive,  able  and 
efi"cctive  speaker,  a  irood  lawyer,  he  could  and 
would  as  State  senator  .serve  the  people  of  this 
district  faithfully  and  well.  The  First  district 
is   Republican,   but   in   this   instance   the   party 


ought  to  be  satisfied  with  no  ordinary  ma- 
jority; we  should  strive  to  render  it  over- 
whelming." 

In  tile  election  which  fi>ll<)wed  on  the  8th 
day  of  November,  igoo,  he  was  elected  by  an 
overwhelming  majority.  His  own  county  gave 
him  a  majority  of  2.341,  this  being  the  largest 
vote  ever  cast  for  any  person  in  Humboldt 
county. 

During  the  session  of  January-March,  IQOI, 
he  took  prominent  part  in  all  the  matters  com- 
ing before  the  legislature. 

The  San  Francisco  Call  correspondent  thus 
refers  to  the  Senator's  first  speech  in  the  sen- 
ate, on   January  30,   1901  : 

"Senator  Selvage  made  his  first  speech  be- 
fore the  senate  this  morning,  and  so  seductive 
was  his  eloquence  that  the  senate  added  $1000 
to  his  appropriation  to  welcome  President  ^Fc- 
Kinley,  and  passed  his  resolution  with  a  rush. 
The  resolution  provided  for  a  reception  com- 
mittee composed  of  the  President.  President 
pro  tem.,  secretary,  sergeant-at-arms  and  five 
members  of  the  senate  and  the  speaker,  speaker 
pro  tem..  chief  clerk,  sergeant-at-arms  and  nine 
members  of  the  assembly,  and  appropriated 
$1000  for  the  committee's  expenses.  This  was 
amended  to  make  the  committee  first  provided 
a  committee  of  arrangements  and  to  make  a 
reception  committee  of  the  whole  legislature, 
with   $2000   for   expenses." 

Mr.  Selvage  assisted  in  the  prosecution  of 
Charles  W.  Bowden  for  the  murder  of  Lillie 
M.  Price,  at  Eureka,  the  accused  being  con- 
victed, and  the  last  person  to  be  hanged  out- 
side of  the  State  prison.  Mr.  Selvage  was 
district  attornej'  at  the  time  of  the  execution. 

The  senator  took  the  stump  for  Governor 
Gage  in  the  State  campaign  of  1898.  and  for 
President   McKinley   in    igoo. 


M.  E.   SANBORN 


Miles  Edward  Sanborn  was  born  at  Polo, 
Illinois,  November  ist.  1852.  and  was  edu- 
cated in  the  public  schools  and  at  Rock  River 
Seminary,  Mount  Morris,  in  that  State.  He 
read  law  at  Polo  with  Hon.  James  C.  Luckey, 
afterwards  attending  the  I'liion  College  of 
Law  at  Chicago,  graduating  therefrom  with 
the  degree  of  bachelor  of  laws.  June  J.sth. 
1874.  and  on  the  loth  of  September  in  the  same 
year  was  admitted  by  the  Sui)reme  Court  of 
Illinois  to  practice  in  all  the  courts  of  the 
State.  In  the  sjiring  of  1875  he  establi^^lud  an 
office  at  Dunlap.  Iowa,  and  soon  after  was 
elected  city  attorney  of  that  place  In  th« 
summer  of  1878  he  came  to  Californi.i  and 
in  January.  18S1.  located  permanently  at 
^'uba  City.  For  two  years  lie  acted  as  assist- 
ant to  the  district  attorney  of  .Sutter  county, 
and  was  then  hiiii>ielf  eh'cted  to  that  oftice. 
which  he  filled  with  ability  and  zeal,  giving; 
such  general  •■ati'^faclion  that  he  wa>^  twice 
re-elected.  In  1884  he  revisited  I'oio  and 
there  married  I'ranccs  M.  Lurkey.  the 
daughter  of  his  former  law  preceptor.  The 
marriage  was  a  happy  one  and  two  bright 
children,  daughter  and  son.  ble>-<  the  union. 
I'pon    the    completion    of    his    third    term    a.s 


928 


History  of  the  Bench  and  Bar  of  California. 


district  attorney  in  January,  1889,  Mr.  San- 
born built  and  removed  into  the  commodious 
offices  which  he  still  occupies  at  Yuba  City, 
and  furnished  them  with  one  of  the  most  com- 
plete  libraries   in   that  section  of  the  state. 

Quiet  and  unassuming  in  manner,  Mr.  San- 
born vet  possesses  in  a  marked  degree  those 
elements   of   unswerving    integrity,    unflagging 


tice.  Mr.  Scheeline  has  acquired  some  repu- 
tation as  an  expert  on  the  question  of  bonds 
of  municipal  and  private  corporations.  His 
other  specialties  are  probate  and  real  estate 
matters.  He  has  never  held  public  office.  His 
father  was  for  two  years  a  member  of  the  San 
Francisco  board  of  education.  He  is  a  mem- 
ber of  a  large  number  of  fraternal  and  benevo- 


^^ 


energy,  and  thorough  knowledge  of  .the  law, 
that  bespeak  the  successful  attorney.  These 
qualities  have  earned  for  him  a  large  clientage 
and  the  well  deserved  reputation  of  being  a 
safe  counsellor  and  a  case-winner.  In  private 
life,  as  in  public,  he  has  always  avoided  dis- 
play, but  has  ever  been  ready,  with  voice  and 
purse,  to  assist  in  any  deserving  public  enter- 
prise or  private  charity. 


S.    C.    SCHEELINE. 

Simon  Cleophis  Scheeline  is  the  son  of  N. 
Scheeline,  and  nephew  of  the  banker,  Daniel 
Meyer,  of  San  Francisco.  He  was  born  De- 
cember 31,  1853,  in  Woodbury,  Bedford  county, 
Pennsylvania.  He  came  to  California  with  his 
parents  in  the  latter  part  of  1856,  and  lived 
until  July,  1859,  in  Gibsonville.  Sierra  county, 
where  his  father  was  engaged  in  mercantile 
business.  He  came  to  San  Francisco,  where  he 
has  since  resided,  in  the  same  year.  He  at- 
tended private  schools  for  four  years :  then 
entered  Union  gramtnar  school,  where  he  grad- 
uated at  the  end  of  two  years,  and  then  entered 
San  Francisco  high  school.  He  graduated  in 
1869  from  that  institution  in  the  English 
course.  He  then  took  the  post  graduate  course 
for  one  vear  in  Latin  and  Greek.  He  entered 
the  State  University  in  1870,  and  graduated 
therefrom  in  1874.  This  was  followed  by  a 
two  years'  course  in  the  Columbia  Law  school. 
New  York  city,  from  which  school  he  grad- 
uated in  1876,  in  the  same  class  with  Delaney 
Nichols,  U.  S.  Grant,  Jr.,  and  Perry  Belmont. 

Mr.  Scheeline  returned  to  San  Francisco  in 
1878,  and  formed  a  law  partnership  with  Judge 
Simon  Rosenbaum,  which  partnership  still  con- 
tinues.    The  firm  has  an  exclusively  civil  prac- 


lent  associations,  notably  I.  O.  O.  F.,  A.  O. 
U.  W.,  National  Union,  General  German  Ben- 
evolent Society,  Altenheim,  Eureka  Society, 
and  the  San  Francisco  Verein.  ■! 

DENVER  SEVIER. 

Denver  Sevier  was  born  February  19,  i860, 
the  son  of  one  of  the  early  pioneers,  who 
was  elected  sheriff  of  Humboldt  county  for 
two    terms.      He    commenced    the    practice    of 


the  law  in  1889.  being  thoroughly  prepared 
therefor  by  study  and  a  four-years'  service 
as  chief  deputy  in  the  county  clerk's  office  of 
Humboldt  county.  He  belongs  to  the  Odd 
Fellows  and  to  the  Native  Sons.     He  conceived 


History  of  the  Bench  and  Bar  of  California. 


929 


the  idea  of  having  the  grand  parlor  of  Native 
Sons  meet  in  Eureka.  This  grand  body  of 
young  men  numbers  nearly  350  members,  con- 
taining some  of  the  brightest  minds  in  the 
State.  Mr.  Sevier  went  to  Sacramento  and 
presented  the  claims  of  Eureka  to  the  grand 
parlor,  and  that  body  voted  two  to  one  in 
favor  of  Eureka  as  against  San  Jose.  The 
meeting  of  the  grand  parlor  was  one  of  the 
best  attended  and  most  enjoyable  ever  held 
in  the  history  of  the  order. 

Mr.  Sevier  is  a  hard  student  and  believes 
in  keeping  well  to  the  front  in  the  profes- 
sion. He  has  a  large,  up-to-date  law  library.  Of 
marked  success  at  the  bar.  and  known  gener- 
ally as  a  hard  worker,  it  is  often  said  that  if 
anybody  can  dig  out  the  law,  he  can.  He  is 
retained  in  some  of  the  most  intricate  liti- 
gation in  his  county.  He  and  his  law  partner, 
T.  H.  Selvage,  Esq.,  recovered  the  largest 
verdict  ever  obtained  from  a  jury  in  Humboldt 
countj',   namely,  $22,632. 

Mr.  Sevier  is  retained  by  the  Eel  River  and 
Eureka  Railroad  Company  in  its  present  liti- 
gation in  regard  to  the  route  along  the  water 
front  of  the  city  of  Eureka. 


ERNEST  SEVIER. 


Ernest  Sevier  was  born  in  Humboldt  county, 
California,  on  the  ist  day  of  June,  1856.  He 
was  admitted  to  practice  before  the  Supreme 
Court  of  this  State  on  January  4th,  1884,  and 
has  since  been  actively  engaged  in  the  pro- 
fession at  Eureka.  He  has  also  been  admitted 
to  practice  before  the  different  Federal  Courts. 


Our  subject  is  an  active  and  energetic 
attorney,  who  makes  the  cause  of  his  clients 
his  own,  and  who  never  loses  a  case  through 
his  own  fault.  His  practice  lias  been  gen- 
eral, though  he  is  considered  specially  strong 
before  a  jury. 

He  is  married  and  has  an  interesting  family 
of  children— five  boys  and  one  girl,  ranging 
m  age  from  one  to  ten  years.  He  is  a  Repub- 
lican   in    politics. 

Some  of  our  readers  will  doubtless  recall 
the  interesting  exploit  of  this  gentleman  in 
causing  a  large  and  elegant  house  to  be 
removed  from  Areata  across  Humlx)ldt  bay 
to  Eureka,  a  distance  of  twelve  miles.  This 
was  accomplished  by  lashing  together  two 
large  jetty  lighters,  which  were  used  in  con- 
veying rock  to  supply  a  government  contractor 
on  the  jetty  at  the  entrance  to  Humboldt 
bay.  The  removal  was  accomplished  without 
accident,  and  our  advocate  and  his  family 
have  ever  since  occupied  the  house  as  their 
permanent    home. 


GEORGE  D.  SH.\DBURNE. 

George  David  Shadburnc  was  born  in  Brcn- 
ham,   Texas,  June    13.    1842. 

He  comes  of  old  English  and  French  ances- 
try. The  town  of  "Shadburne."  in  Essex. 
England,  was  named  after  some  of  his  paternal 
ancestors.  His  great  grandfather.  .\mos  Shad- 
burne, settled  in  Louisville.  Kentucky,  early  in 
the  eighteenth  century.  His  grandfather.  Wil- 
liam Shadburne,  settled  in  Bardstown.  Ken- 
tucky,  about   the   beginning  of   the   nineteenth 


He  claims  relationship  with  the  Sevier 
family  of  Tennessee,  whose  ancestor.  Gen. 
John  Sevier,  was  the  American  General  at  the 
battle  of  King's  Mountain  during  the  latter  , 
days  of  the  Revolution,  and  was  afterwards 
the  first  Governor  of  Tennessee. 

Mr.    Sevier's    father    was    one    of    the    first  . 
settlers  in  Humboldt  county,  where  his  widow 
and  three  sons  still  reside. 


ceiUury.  and  llun-  niarriid  .Mi>s  Friulenci- 
Merrimoe,  whose  fannly  had  just  arrivi-d  frnm 
France. 

His  fatluT,  William  llriuy  llariisnn  Shad- 
burne, at  the  agi-  (if  cighUHii.  wont  to  Texas 
and  joined  in  the  Texas  KcvoliitiMii.  in  which 
he  had  numerous  hairbreadth  escapes,  anil  was 
eng.iged  in  many  battles,  being  in  at  the  close, 
at  the  battle  of  .S.m  Jacinto.  He  married  Miss 
Eliza   Miranda    Wheeler,   from   Mi>;><issippi.  of 


930 


History  of  the  Bench  and  Bar  of  Califor)ua. 


which    marriage    our    present    Mr.    Shadbiirnc 
was   the   issue. 

Born,  as  it  were,  on  the  battlefield  in  the 
stirring  times  of  the  Texan  Republic,  Mr. 
Shadburne  at  an  early  age  imbibed  a  love  of 
independence,  which  has  followed  him  through 
life.  He  was  educated  at  St.  Mary's  College, 
Kentucky.  At  the  age  of  nineteen  he  entered 
the  Confederate  Army  to  fight  for  the  integ- 
rity of  his  native  state.  By  his  skill,  bravery 
and  dash  he  was  soon  the  leader  of  scouts  of 
the  army  of  Lee  in  northern  Virginia,  and  as 
chief  of  General  Wade  Hampton's  Scouts,  he 
made  much  of  the  history  of  the  ill-starred 
Confederacy. 

For  over  two  years,  in  the  position  of  leader 
of  scouts  of  the  Army  of  Northern  Virginia, 
he  rendered  valuable  service  to  his  beloved 
Southland,  and  was  loved  and  esteemed  by  all 
his  comrades  and  commanders.  When  the  sun 
of  the  Confederacy  had  gone  down  in  blood 
and  disaster,  and  nothing  but  charred  ruins 
and  desolation  were  to  be  seen  in  the  South, 
Mr.  Shadburne  attempted  to  leave  this  country 
for  Brazil,  failing  in  which,  he  sought  retire- 
ment, seclusion  and  reflection  near  Bardstown, 
Kentucky,  where  he  pursued  the  study  of  law. 
In  the  spring  of  1867  fie  was  admitted  to  the 
bar  at  New  Orleans,  Louisiana,  and  practiced 
his  profession  for  a  short  time  thereafter  at 
Milliken's  Bend,  in  that  state.  There,  on  June 
13.  1867.  he  married  Miss  Ada  M.  Grivot.  a 
young  lady  of  great  beauty,  education  and  re- 
finement, and  a  member  of  one  of  the  oldest 
and  best  French  families  of  Louisiana. 

On  June  13.  1868.  Mr.  Shadburne  and  his 
young  wife  arrived  in  San  Francisco,  where  he 
has  since  resided. 

In  California  he  has  been  constantly,  ardu- 
ously, and  assiduously  engaged  in  the  prac- 
tice of  his  professsion,  which  he  esteems,  in  its 
integrity.  There  is  no  fee  great  enough,  and 
no  influence  persuasive  enough,  to  induce  him 
to  take  a  dishonest  case. 

He  is  unflinchable  and  desperately  in  earnest 
in  pushing  his  cases,  and  never  knows  defeat 
as  long  as  there  is  a  court  to  which  he  may 
appeal.  He  has  had  much  conspicuous  litiga- 
tion, and  his  success  has  been  proverbial.  He 
has  acquired  a  fine  home  on  California  Street 
Hill,  San  Francisco,  and  also  owns  the  sub- 
stantial brick  building  on  Sacramento  street, 
in  which  his  law  offices  are  located.  He  is  a 
man  of  most  positive  character,  but  he  has 
most  engaging  manners  and  manifests  a  per- 
sonal interest  in  everybody,  and  everybody 
seems  to  be  his  friend.  Mr.  Shadburne  has 
been  an  ardent  advocate  of  all  the  great  im- 
provements in  San  Francisco  since  his  settle- 
ment there,  and  has  done  much  for  the  growth 
and  development  of  the  State.  He  will  be 
greatly  regretted  wdien  he  goes  to  his  fathers. 


J.    S.    SLAUSON. 


This  gentleman,  who  left  the  legal  profession 
many  years  ago.  held  a  high  place  at  the  bar. 

Jonathan  Sayre  Slauson  w-as  born  in  Orange 
county.    New    York.    December    11,    1829,    of 


English  ancestry.  He  grew  up  on  a  farm,  and 
was  educated  in  the  district  school  and  at 
Poughkeepsie.  He  was  graduated  from  the 
State  Law  School,  at  Poughkeepsie,  in  1854. 
He  began  the  practice  of  law  in  New  York 
City  in  x8  =  =  and  followed  it  there  until  1864. 
In  the  latter  year  he  came  to  California,  but 
very  soon  pushed  on  to  Austin,  Nevada,  the 
center  of  great  mining  activity.  He  engaged 
in  mining  there  for  four  years,  also  practic- 
ing law  in  partnership  with  Hon.  Charles  E. 
De  Long.  During  this  period  he  was  twice 
elected  mayor  of  Austin,  serving  four  years, 
w-hich  about  covered  the  time  of  his  residence 
there.  The  law  firm  was  dissolved  in  1868, 
Mr.  De  Long  becoming  United  States  Minis- 
ter to  Japan,  and  Mr.  Slauson  removing  to  San 
Francisco,   California. 

Mr.  Slauson  settled  at  Los  Angeles  in  1874. 
He  was  called  immediately  to  be  president 
and  manager  of  the  Los  Angeles  County  Bank. 
He  held  that  position  until  1883,  and  has  not, 
since  he  assumed  it,  been  at  the  bar.  He  is 
now  a  canitalist,  engaged  in  banking  and  finan- 
cial  operations,   and   business   enterprises. 

Mr.  Slauson  is  possessed  both  of  fine  legal 
ability  and  business  sagacity.  He  is  a  man  of 
high  education,  and  well  informed  on  general 
subjects.  His  temperament  is  quiet,  and  his 
manner  dignified.  He  has  been  influential  in 
the  councils  of  the  Republican  party,  and  ac- 
tive in  church  and  charitable  work.  His 
church  is  the  First  Presbyterian.  He  has  am- 
ple means,  is  married,  and  has  a  grown  son 
and  two  married  daughters.  He  has  been  a 
member  of  the  Chamber  of  Commerce  since 
1894-  

T.   M.   STEWART. 

Thomas  Meff'ord  Stewart  was  born  in  Day- 
ton, Ohio,  in  i8d7.  He  was  liberally  educated. 
He  was  graduated  from  the  Dayton  High 
School  in  1863.  after  which  he  lived  for  some 
years  on  a  farm.  He  was  graduated  from 
Shurtleff  College,  in  Upper  Alton.  Illinois,  in 
1873.  He  then  taught  mathematics  in  that  col- 
lege for  two  years.  He  graduated  from  New- 
ton Theological  Institute,  in  Massachusetts,  in 
1876.  Coming  to  California  in  that  year,  he 
taught  three  years  in  California  College  at 
Vacaville.  1876-1879.  From  1880  to  1885  he 
was  president  of  Ottawa  University,  Ottawa, 
Kansas.  He  studied  law  in  Idaho,  and  was 
admitted  to  the  bar  there,  in  1887.  His  oflice 
was  at  Blackfoot,  and  his  practice  embraced 
many  cases  involving  water  rights  and  consti- 
tutional questions.  In  1892  Mr.  Stewart  was 
the  candidate  of  the  Prohibition  party  for 
Supreme   Judge. 

It  will  be  seen  that  he  has  been  a  great 
traveler  over  the  wide  West,  but  he  seems  to 
be  permanently  and  agreeably  established  in 
law  practice  now  at  Los  Angeles,  where  he  lo- 
cated in  1893.  He  is  a  good,  clean  man,  a 
sterling  character,  an  able  lawyer,  with  a  pay- 
ing business.  In  1896  he  was  a  candidate  for 
Supreme  Judge  on  the  Prohibition  ticket,  and 
was  the  nominee  of  the  same  party  for  Su- 
perior Judge   in    1900. 


Charles  Silent 


History  of  the  Bench  and  Bar  of  California. 


933 


CHARLES  SlLRX'l'. 

This  gentleman  has  been  distinguislicd  at 
the  bars  of  the  two  beautiful  and  opulent  cities 
of  San  Jose  and  Los  Angeles.  (We  had  oc- 
casion to  say.  in  effect,  the  same  thing  of  Col- 
onel S.  O.  Houghton,  j  When  we  say  that 
he  is  of  German  birth,  it  will  create  as  general 
surprise  as  when  we  recorded  that  Reuben  H. 
Lloyd  first  saw  the  light  in   Ireland. 

The  ex-United  States  Judge  was  born  in 
Baden,  in  1843.  His  father,  who  had  taken 
pari  in  the  Revolution  of  1848,  came  to  this 
country,  bringing  him  and  the  family,  in  that 
year,  and  settled  at  Columbus,  Ohio.  The  son 
began  to  provide  for  himself  in  his  twelfth 
year.  Like  M.  M.  Estee  (q.  v.),  he  came 
to  California  on  borrowed  money.  He  was 
young  enough,  surely.  He  sailed  from  New 
York,  arriving  in  San  Francisco,  by  way  of 
Panama,  in  August,  1856,  at  the  age  of  thir- 
teen. After  a  stay  of  a  few  weeks,  he  went 
to  Drj-town,  Amador  county,  and  worked  at 
divers  employments.  He  had,  even  earlier,  de- 
termined to  become  a  lawyer,  and  kept  the 
goal  in  view  through  his  boyhood  struggles. 
He  gave  his  spare  hours  to  study.  For  a  term 
of  three  months  he  attended  the  public  school. 
In  his  seventeenth  year  he  was  granted,  of 
course  after  proper  examination,  a  teacher's 
certificate  of  the  first  class.  His  first  school, 
soon  obtained,  was  in  a  country  district.  After 
one  term  he  was  transferred  to  the  public 
school  in  Drytown.  The  pupils  were  but  re- 
cently his  schoolfellows,  and  the  boy-teacher 
probably  had  no  eas}^  yoke.  But  he  had  marked 
success  with  this  school,  and  continued  teach- 
ing, the  while  saving  his  money,  with  a  view 
to  going  to  college  before  finishing  his  law 
studies. 

In  the  summer  of  1862  the  young  man  en- 
tered the  sophomore  class  of  the  University 
of  the  Pacific  at  Santa  Clara,  having  pursued 
advanced  studies  while  teaching.  At  this  early 
stage  in  his  young  career  he  had  become  a 
money-lender  on  a  small  scale.  His  debtor,  a 
business  firm,  apparently  prosperous,  had,  as  a 
consideration,  given  him  an  interest  in  their 
house,  but  failed  within  a  month  after  he  had 
entered  college,  and  left  him  without  means. 
However,  he  finished  the  first  term  of  six 
months.  In  the  same  year.  1862,  while  in  col- 
lege. Governor  Stanford  commissioned  him 
second  lieutenant  of  a  military  company,  which 
tendered  its  services  to  the  general  govern- 
ment for  the  Civil  War.  They  asked  to  be  sent 
east,  but  this  was  not  granted,  and  they  de- 
clined to  enlist  in  California,  because  of  the 
chance  of  being  sent  to  guard  Indians. 

Upon  leaving  college,  our  friend  became 
principal  of  the  Santa  Clara  public  schools,  and 
held  the  position  until  i8«).  During  this  period 
he  kept  to  his  college  course  of  study  at  night, 
and  secured  later  on  the  degree  of  A.  M.  He 
then,  while  still  at  the  head  of  the  schools,  took 
up  the  study  of  law.  A  year  passing,  he  ob- 
tained a  leave  of  absence  for  six  months,  and 
went  to  San  Francisco,  where  he  entered  the 
law  office  of  S.  F.  and  J.  Reynolds,  t.i  learn 
the  practical  work  of  the  profession.  In  \S6(i 
his  course  of  law  reading  was  finished,  and  he 


gave  up  teaching  and  secured  an  appointment 
as  a  deputy  in  the  county  clerk's  office  at  San 
Jose,  his  purpose  now  being  lo  familiarize 
himself  with  practice  and  pleading  He  was 
admitted  to  the  bar  of  the  Supreme  Court 
in  1868,  and  immediately  became  a  partner  in 
the  leading  San  Jose  law  firm  of  Moore  & 
Laine,  the  name  of  which  was  thenceforth 
Moore,  Laine  &  Silent. 

Mr.  Silent  had  been  enjoying  a  large  prac- 
tice in  San  Jose  for  ten  years,  when,  in  1S7S, 
he  was  appointed  one  of  the  judges  of  the 
Supreme  Court  of  Arizona.  Not  long  after 
assumintr  that  office,  at  Prescott,  he  became  as- 
sured that  practice  at  the  bar  of  Arizona  prom- 
ised better  remuneration  than  his  place  on 
the  bench,  and  he  determined  to  resign.  The 
legislature,  understanding  his  purpose,  in- 
creased his  salary  in  the  sum  of  $2,000  over 
that  of  his  two  associate  justices.  He  retained 
the  position,  but  resigned  in  1880.  Removing 
to  Tucson,  he  was  at  the  bar  there  for  three 
years,  doing  a  business  that  kept  him  fully 
occupied  and  yielding  him  large  reward.  His 
health  failed  then,  and  he  returned  to  San 
Jose. 

He  passed  a  good,  long  period  in  rest  and 
recreation,  and,  in  1885.  removed  to  Los  An- 
geles. In  that  city  he  has  always  since  resided, 
and  at  the  bar  thereof  has  always  been  an  hon- 
ored leader.  For  more  than  ten  years  he  was 
associated  in  practice  with  the  veterans,  S.  O. 
Houghton  and  Alexander  Campbell  (whose 
interesting  careers  are  set  forth  in  this  His- 
tor-<-'>  under  the  firm  name  of  Houghton.  Si- 
lent  &   Campbell. 

Judge  Silent's  life  has  been  one  of  eminen- 
success.  Not  only  from  his  law  practice  has 
he  always  gathered  rich  returns,  but  he  has 
made  many  business  ventures  which  resulted 
very  differently  from  that  little  loan  of  1.862. 
While  a  law  student  in  San  Francisco,  and 
later  while  a  teacher  in  Santa  Clara,  he  sup- 
plied the  general  government  with  cavalry 
horses.  In  1868  he  procured  from  the  legisla- 
ture a  franchise  to  construct  the  first  street 
railroad  in  Santa  Clara  county,  running  be- 
tween San  Jose  and  Santa  Clara.  He  and  his 
associates  completed  the  road  in  the  followim: 
year.  The  franchise  was  for  twenty  year.s. 
The  cars  run  along  (he  famous  ".Mameda" 
through  trees  planted  by  the  Fathers  a  hundred 
years  ago.  Governor  Haigbt.  in  considering 
this  proposed  franchise,  was  himself  silent,  and 
it  btcame  a  law  without  his  action,  .\ccording 
lo  an  act  passed  at  a  later  .session,  the  ".Ma- 
meda" would  seem  to  be  115  feet  wide.  (Laws 
of  1871-72.  page  367.) 

In  1S74  Judge  Silent  was  made  the  presi- 
dent of  the  comiiany  which  started  the  narrow- 
gauge  railroad  which  runs  from  Santa  Cruz 
•icross  the  mountains  to  Oakland:  and  the  first 
section  from  Santa  Cruz  \o  Fellon.  inchwling 
the  wharf  and  street  railroads  at  Santa  Cm/, 
were  built  muler  his  superintendence.  This  is 
one  of  the  most  instructive  lives  to  consider 
in  all  this  history,  if  we  duly  observe  its  free- 
dom from  fever'  and  its  calm,  healthful  and 
nnfiagging  purpose  from  its  very  childhood 
l)ud.  .  .  ,, 

Judge    Silent    is    a    ili.>^tinguished   citizen,    all 


934 


History  of  the  Bench  and  Bar  of  California. 


apart  from  liis  profession  and  his  varied  busi- 
ness interests.  He  has  great  pubhc  spirit.  While 
living  at  San  Jose  he  was  one  of  the  first  act- 
ors in  the  good  roads  movement,  which  gave 
to  that  locality  its  beautiful  ways,  including 
the  drive  to  Alum  Rock  Park  and  the  road  to 
Mount   Hamilton. 

Since  removing  to  Los  Angeles  he  has  been 
identified  with  all  enterprises  for  the  public 
good  or  the  advancement  of  the  city.  He  has 
been  a  member  of  the  Chamber  of  Commerce 
since  i8go.  In  1897,  when  unemployed  men, 
in  large  numbers,  were  parading  the  streets, 
without  food  and  unable  to  obtain  work,  he 
started  the  movement,  through  the  Merchants 
and  Manufacturers'  Association,  to  relieve  the 
distress.  L'nder  his  direction  a  fund  of  $27,- 
000  was  raised,  which  was  expended  in  con- 
structing the  beautiful  entrance  to  Elysian 
Park,  thus  providing  employment  for  the  needy. 
The  labor  was  done  under  his  personal  su- 
pervision. They  say  in  his  city  that  in  this  un- 
selfish service  he  neglected  his  private  business 
for  two  months,  and  often  arose  from  bed  be- 
fore daybreak  to  visit  the  spot  where  work  was 
going  on. 

1  he  Merchants'  and  Manufacturers'  Asso- 
ciation, in  recognition  of  his  good  work  in  this 
matter,  made  him  an  honorary  life  member,  and 
presented  him  with  complimentary  resolutions, 
beautifully  engrossed. 

The  Los  Angeles  Exp>-rss,  at  the  time  this 
undertaking  was  being  carried  out,  had  these 
remarks   in    its   editorial   column : 

"Judge  Charle^  Silent  has  endeared  himself 
to  the  workingmen  of  Los  Angeles  by  his  acts 
within  the  last  few  weeks  to  an  extent  that 
will  make  his  name  to  be  honored  with  new 
light  for  many  years.  Others  have  been  equally 
active  in  the  relief  of  the  deserving  poor  by 
providing  them  honest  employment,  but  it  does 
not  detract  from  their  efforts  in  the  least  to 
refer  to  the  dignified  and  helpful  course  that 
Judge  Silent  has  been  pursuing  in  the  cause 
of  humanity  with  such  marked  results.  It 
does  not  tickle  the  vanity  of  men  of  the  Silent 
stamn  to  say  a  word  of  grateful  appreciation, 
for  he  has  shown  a  spirit  broad  and  unwav- 
ering toward  those  in  need,  and  so  free  from 
self  that  there  must  be  but  little  in  his  nature 
that  we  could  touch  with  flattery.  Wealth 
often  sweetens  and  mellows  human  nature, 
and  those  who  have  enough  and  more  of  this 
world's  goods  than  they  need  are  in  many 
cases  the  possessors  of  big  hearts,  and  intellects 
to  direct  charities  so  that  the  recipients  do  not 
feel  the  burden  of  unrequited  favors,  or  the  dis- 
pensers the  burden  attendant  upon  misdirected 
assistance." 

In  the  general  judgement  of  the  bar.  Judge 
Silent  is  a  sound,  safe,  conservative  lawyer  of 
a  high  order  of  ability.  The  present  excellent 
judges  of  the  Sunerior  Court  of  Los  Angeles 
concur  in  this  estimate.  In  argument  he  never 
declaims,  hut  is  always  pointed  and  sensible, 
successful  before  juries,  but  more  effective  and 
more  at  home  before  and  addressing  the 
bencn. 

The  Judge  has  been  twice  married.  His  first 
wife  was  the  daughter  of  Rev.  John  Daniel  of 
Santa  Clara,  whom  he  married  in    1864.     She 


died  in  1870.  In  1872  he  married  the  daughter 
of  M.  Tantau,  an  old  citizen  of  Santa  Clara 
county.  There  is  a  large  family  of  sons  and 
daughters,  a  number  of  them  grown,  some  of 
the  daughters  married  and  some  of  the  sons  in 
business. 

The  Judge's  home  in  Los  Angeles  is  one  of 
the  finest  in  the  State,  and  with  most  attractive 
surroundings.  He  has  accumulated  a  large 
fortune,  as  the  reader  has  already  inferred. 


C    M.    SIMPSON. 


Hon.  C.  M.  Simpson.  State  Senator  for  Los 
Angeles  county,  was  born  in  Rockville.  Ind.. 
on  December  9,  1844.  He  went  with  his  par- 
ents to  Kansas  in  1857.  In  June,  1861,  he  en- 
listed in  the  Union  army,  serving  as  a  scout 
and  on  all  kinds  of  independent  duty  until 
September,  when  he  enlisted  regularly  in  the 
Ninth  Kansas  volunteer  cavalry.  He  served 
tmtil  April  12,  1865,  when  he  was  mustered  out 
and  returned  home,  having  given  four  years 
in  all  to  his  country's  service.  He  then  went 
upon  the  farm  and  worked  until  1868.  In  that 
year  he  married.  In  1869  he  moved  into  lola,. 
the  county  seat  of  Allen  county,  and  entered 
mercantile  business,  which  he  very  soon  aban- 
doned  on    account   of   failing   health. 

From  1870  to  1878  inclusive,  Mr.  Simpson 
held  the  office  of  clerk  of  the  District  Court 
of  Allen  county,  being  elected  by  the  Repub- 
licans for  four  successive  terms.  He  was  also 
a  member  of  the  City  Council  of  lola  for  four 
terms,  was  mayor  for  one  year,  and  school 
district  treasurer  three  years. 

In  1877  he  was  appointed  postmaster  at  lola, 
and  held  the  office  for  nearly  ten  years. 

Senator  Simpson  was  admitted  to  the  bar 
in  1877,  and  afterwards  served  two  terms  as 
city  attorney  of  lola.  He  came  to  California 
in  1886,  and  has  always  since  lived  and  fol- 
lowed law  practice  in  Pasadena.  In  this  State 
he  has  been  as  active  and  conspicuous  not  only 
in  the  profession  of  law,  but  also  in  public 
life  as  he  was  in  Kansas.  He  was  president 
of  the  Republican  Club  of  Pasadena  in  1888. 
and  a  member  of  the  City  Council  in  1889.  He 
was  a  member  of  the  assembly  in  1893,  and  in 
1894  was  elected  a  State  senator  and  re-elected 
in  i8g8.  his  present  term  running  to  January, 
1903.  At  the  session  of  1897  he  was  chairman 
of  the  senate  judiciary  committee.  At  the  ses- 
sion of  1893,  in  the  assembly  he  opposed  the 
resolution  that  favored  the  free  and  unlimited 
coinage  of  silver.  In  this  State,  Senator  Simp- 
son was  first  admitted  to  practice  law  in  the 
Superior  Court  of  Los  .Angeles  county,  and 
afterwards  was  admitted  in  the  Supreme  Court 
upon  his  certificate  of  admission  to  the  Su- 
preme Court  of  Kansas.  The  senator's  record, 
as  thus  briefly  written,  shows  him  to  be  a 
lawyer  and  legislator  of  exceptional  ability  and 
experience. 

WILLIAM  1).  STEPHENS. 

This  gentleman  is  a  I)r(ither  of  ex-Judge  A. 
M.  Stephens,  a  notice  of  whom  is  on  another 
page.     He  was  born  in  Jackson.  Tennessee,  in 


C.   N.   Sterry 


History  of  the  Bench  and  Bar  of  California. 


937 


1843,  and  came  to  California,  settling  at  Los 
Angeles,  in  June,  1875.  He  has  always  since 
been  engaged  in  law  practice  in  that  city.  He 
was  admitted  to  the  bar  in  Memphis.  Tennes- 
see, in  1868.  His  residence  since  1878  has  been 
in   San  Gabriel,  near  Los  Angeles. 

Mr.  Stephens  is  a  commissioner  in  bank- 
ruptcy. He  married,  in  1890,  Miss  Antoinette 
Washington  Dorsey.  daughter  of  Dr.  Fred- 
erick Dorsey,  of  Hagerstown,  Maryland. 


C.    N.    STERRY. 


Clinton  Norman  Sterry  was  born  near  Ash- 
tabula, Ohio,  April  8th,  1843.  He  was  the  son 
of  DeWitt  Clinton  and  Elvira  Miller  Sterry, 
and  was  taken  by  them  in  infancy  to  Norwich, 
Conn.,  where  he  lived  till  he  reached  his  thir- 
teenth year,  when  the  family  moved  to  Lake 
City,  Minn.  Here  he  grew  into  young  man- 
hood. He  went  to  Oberlin  to  school,  in  1860- 
61. 

He  had  been  in  school  less  than  a  year 
when  that  shot  from  Fort  Sumter  fired  the 
land,  and  he  marched  out  with  that  "tooth- 
brush brigade"  which  belonged  to  the  Seventh 
Ohio,  to  take  his  part  in  the  titanic  struggle 
coming  on. 

He  served  for  one  year  and  a  half,  and 
was  sent  home  to  die,  but  even  at  this  age  was 
a  hard  man  to  beat.  In  a  few  months  he  had 
reversed  the  decision,  and,  gaining  a  new  trial 
organized  a  company,  and  re-entered  the  army 
as  Captain  of  heavy  artillery  of  the  First  Min- 
nesota, serving  until  mustered  out  in  '65. 

He  subsequently  studied  law  at  Ann  Arbor, 
Michigan,  and  was  admitted  to  the  bar  in 
Lake  City,  Minn.,  in  1868.  For  five  years  he 
divided  his  time  between  the  practice  of  law- 
went  to  Cotton\vood  FaIls,_Xajisa.'i,  avhen  he' 
and  his  dog  and  gun,  discriminating  largely 
in  favor  of  the  last  two.  In  March,  1873,  he 
began  earnest  work  that  took  him. in  the  June 
following,  to  Emporia,  Kansas.  He  was  soon 
made  a  partner  of  the  firm  of  Ruggles  & 
Plumb,  perhaps  the  strongest  firm  in  the  State. 
From  this  time  Captain  Sterry  rose  rapidly 
in  public  notice  and  estimation.  He  was  rec- 
ognized by  the  public  as  a  strong,  keen,  tireless 
worker,  and  in  private,  by  all  who  knew  him, 
as  an  honorable,  generous,  loyal  friend. 

The  Captain  was  appointed  as  a  Santa  Fc 
attorney  in  1882,  and  has  been  acting  in  that 
capacity  up  to  the  present  date.  He  was 
appointed  general  attorney  for  that  road  for 
New  Mexico  in  January,  1892,  and  became  so- 
licitor for  the  road  west  of  Albuquerque  in 
the  summer  of  1896.  It  was  in  October,  1896, 
that  Captain  Sterry  went  to  Los  Angeles,  to 
make  his  headciuarters  and  home  in  that  peer- 
less city,  where  he  has  since  become  so  promi- 
nent  at   the  bar. 

In  September,  1899,  he  was  appointed  gen- 
eral attorney  for  the  Valley  road.  He  has 
won  for  himself  in  California  the  same  "golden 
opinion  from  all  .sorts  of  men"  that  he  won 
in  Kansas.  All  who  know  him  speak  of  him  as 
honest,  able  and  leal. 

A  lawyer  who  has  had  thirty-three  years'  ex- 
perience at  the  bar  and  on  the  bench,  and  who 


during  the  greater  part  of  that  time  has  been 
acquainted  with  Captain  Sterry,  says  this  of 
him : 

"Captain  Sterry  received  his  title  of  captain 
in  the  Civil  War,  in  which  he  commanded  a 
battery  with  distinguished  ability.  After  the 
war  he  practiced  law  in  Emporia.  Kansas,  with 
a  prominent  lawyer  named  Ruggles,  under  the 
firm  name  of  Ruggles  &  Sterry,  The  partnership 
became  a  celebrated  one  owing  to  the  abil- 
ity of  both  members,  but  Sterry  was  essen- 
tially the  lawyer  of  the'  firm.  His  opinions 
on  questions  of  law  were  trusted  on  any  sub- 
ject he  investigated.  He  became  particularly 
skillful  in  the  trial  of  cases,  and  was  success- 
ful before  court  or  jury  where  success  was 
possible : — so  much  so,  that  his  services  as  a 
trial  lawyer  were  in  demand  throughout  a  great 
part  of  the  state,  and  to  a  considerable  extent 
in  important  cases  in  adjoining  states.  His  suc- 
cess at  the  bar  was  extraordinary,  and  called 
the  attention  of  the  officials  of  the  Atchison, 
Topeka  &  Santa  Fe  Railway  Company  to  him 
and  his  career  as  an  advocate,  and  he  became 
the  counsel  of  that  corporation  through  merit 
alone.  His  strength  as  a  trial  lawyer  lies  first 
in  his  great  ability  to  get  at  the  very  meat  of 
the  matter  in  controversy;  next  in  his  untiring 
industry  in  the  preparation  of  his  cases,  both  as 
to  the  investigation  and  presentation  of  his  facts 
and  law  ;  third,  in  his  imperturbability  of  con- 
duct during  a  trial,  and  his  direct,  forceful  and 
logical  presentation  of  the  pivotal  facts  and 
turning  points  of  the  law,  either  to  court  or 
jury.  His  tone  of  voice  is  never  harsh  or  dis- 
agreeable, but  pleasing  and  impressive.  In 
the  conduct  of  the  trial  his  opponent  may  quar- 
rel with  the  judge,  but  Sterry,  never.  Polite, 
insistent  and  shrewd,  he  yet  invariably  main- 
tains his  dignity,  and  secures  the  good  will 
and  respect  of  the  court. 

"Having  had  but  one  line  of  legal  work  for 
many  years,  he  is  not  known  to  the  bar  gen- 
erally, but  he  is,  in  fact,  one  of  the  ablest 
and  strongest  trial  lawyers  of  the  entire  .\nier- 
ican  bar.  perhaps  having  no  superior  anywhere 
as  an  advocate.  His  probity  and  uprightness 
of  character,  both  as  a  lawyer  and  citizen,  are 
beyond  all  (piestion." 


JOIIX   P.   STRO'lHER. 

This  gentleman  was  born  in  Kentucky  on 
February  i().  1837.  Me  was  educated  in  the 
common  schools,  and  was  graduated  from  the 
law  department  of  Louisville  University  in 
185S.  He  began  the  practice  of  law  in  Saline 
county,  Missouri.  He  was  very  successful  at 
the  bar.  and  also  held  many  public  offices.  He 
was  county  attorney  for  many  years,  and  in 
1872  was  elected  stale  senator.  At  the  second 
session  of  that  body  in  which  he  served,  he  was 
chairman  of  the  judiciary  committee.  Later 
he  was  elected  Judge  of  the  Sixth  Circuit  of 
Mis.souri.  and  served  tlie  full  term  of  six 
years,  ending  in  January.  1SS7.  He  declined 
re-election.  Just  before  he  left  the  bench,  the 
bar  of  Lexington  met  and  passed  resolutions 
expressing   hearty   appreciation   of  his   inipar- 


938 


History  of  the  Bench  and  Bar  of  California. 


tiality  as  a  Jiido-c.  his  thoroughness  of  in- 
vestigation,  and   his   eminent   abiHty. 

Judge  Strother  removed  with  his  family,  in 
1892,  to  Fresno,  CaHfornia,  being  charmed  by 
the  cHmate  and  the  great  raisin  industry  there, 
having  spent  the  previous  winter  at  Fresno 
himself,  where  his  son,  Sidney  L.  Strother,  re- 
sided. Since  then  he  has  been  engaged  in  the 
practice  of  law.  He  was  chosen  the  first  pres- 
ident of  the  Fresno  Bar  Association  a  few 
years  since.  He  and  his  son  before-mentioned 
were  partners  of  Mr.  J.  R.  Webb,  until  that 
gentleman  became  a  Judge  of  the  Fresno  Su- 
perior Court. 

Judge  Strother  is  an  influential  member  of 
the  Methodist  Church,  South.  He  has  filled 
many  important  places  of  trust,  both  in  the 
local  church  and  the  general  church.  He  has 
been  three  times  a  member  of  the  General  Con- 
ference, the  law-making  body  of  the  church — 
at  Louisville  in  187'.  at  Memphis  in  1894.  and 
at  Baltimore  in  1898.  At  the  latter  session  he 
was  chairman  of  the  committee  on  "publishing 
interests." 

FRANK  M.   STONE. 

The  story  of  Mr.  Stone's  nfe  possesses  ex- 
ceptional interest ;  there  is  much  that  is  strange 
and  much  that  is  picturesque,  in  both  his  per- 
sonal and  his  professional  career.  It  will  add 
a  pleasant  chapter  to  our  History. 

Frank  M.  Stone  was  born  March  12.  1847, 
at  a  small  town  near  Concord,  in  New  Hamp- 
shire. In  his  infancy  his  parents  removed  to 
Boston.  Mass.,  where  his  father  acted  as  a 
fiduciary  agent  for  heirs  of  estates  in  probate, 
and  was  elected  to  the  legislature.  He,  the 
father,  at  the  time  of  his  death,  which  occurred 
in  1881,  was  chairman  of  the  joint  legislative 
committee  on  corporations.  Among  his  close 
personal  friends  was  Hon.  John  D.  Long,  now 
Secretary  of  the  Navy,  who  was  then  Governor 
of  Massachusetts. 

Mr.  Stone's  early  education  was  obtained  at 
the  academy  in  Royalton,  Vermont.  He  there- 
after was  graduated  from  the  Boston  English 
and  Classical  Schools,  and  finished  his  educa- 
tion under  private  tutors.  He  commenced  the 
study  of  law  under  the  directions  of  his  father 
in  the  early  seventies.  His  health  becoming 
impaired,  he  shipped  as  supercargo  of  a  sailing 
vessel,  making  several  voyages  to  the  Azore 
Islands,  also  to  the  West  Indies  and  to  Europe. 

ills  life  at  sea  was  full  of  adventure,  includ- 
ing the  wrecking  of  his  vessel  and  his  drifting 
alone  in  mid-ocean  for  an  entire  night  off  the 
Island  of  St.  Michaels.  It  was  followed  by  a 
most  exciting  trip  from  Petersburg.  Virginia, 
to  Mobile  Bay,  Alabama,  while  negotiations 
for  peace  were  in  progress  in  1865.  and  before 
transportation  by  rail  had  been  resumed.  He 
took  up  his  studies  again  in  the  backwoods  of 
Alabama,  and  m  the  uplands  of  Georgia,  liv- 
ing on  what  he  could  obtain  by  foraging. 

Mr.  Stone  came  to  California  in  1874,  and 
finished  his  course  of  study  in  the  office  of 
Colonel  Joseph  P.  Hoge.  the  Dean  of  the  Cali- 
fornia bar — spending  the  years  1878-79  in  his 
office.      "A    particularly    pleasant    period    was 


that,"  he  unce  said  to  us.  He  was  admitted  to 
the  bar  by  the  Supreme  Court  of  this  State  in 
the  spring  of  1880.  He  was  deputy  district  at- 
torney of  the  city  and  county  under  Hon.  Leon- 
idas  E.  Pratt,  in  1882,  and  •  continued  to  act 
in  that  capacity  until  December,  1882,  when 
he  resigned.  He  thereafter  formed  a  law  part- 
nership with  Hon.  A.  A.  Sargent,  ex-Minister 
to  Germany,  and  ex-United  States  Senator,  and 
such  partnership  continued  until  Mr.  Sargent's 
death  in  August,   1887. 

While  Mr.  Stone  held  the  office  of  deputy 
district  attorney,  he  prosecuted  many  notable 
cases,  among  which  was  that  of  Maroney  for 
shooting  Judge  D.  J.  Murphy  in  open  court. 
Judge  Murphy,  who  had  not  yet  become  Supe- 
rior Judge,  had,  in  defending  a  man  in  the 
Police  Court,  awakened  the  wrath  of  Maroney 
by  his  cross-examination  of  the  latter,  who  was 
a  police  officer,  and  the  prosecuting  witness. 
Judge  Murphy's  life  hung  in  the  balance  for 
some  days.  During  the  progress  of  the  Ma- 
roney trial  a  peculiar  incident  occurred.  The 
case  had  taken  several  months  to  try,  and,  at 
its  conclusion,  was  submitted  without  argu- 
ment. The  jury  retired  and,  after  being  out 
two  nights  and  a  day,  came  into  court  and  re- 
quested counsel  to  argue  the  case.  Henry  E. 
Highton  represented  the  defense.  Court  and 
counsel  being  content,  the  jury  was  brought 
in  and  the  case  was  argued  for  three  days. 
The  jury  again  retired — the  result  of  their  bal- 
loting for  something  like  four  days,  being 
seven  for  conviction  and  five  for  acquittal,  the 
vote  never  having  changed  for  one  ballot. 

The  case  of  the  People  v.  Carl  Johansen  was 
one  of  peculiar  private  and  public  concern. 
The  defendant  was  a  sailor,  and,  while  being 
shipped  by  his  boarding-house  master,  one 
Sanders,  both  being  Swedes,  Johansen  shot 
Sanders,  killing  him  instantly.  Throwing  his 
pistol  into  the  bay,  he  shouted,  "I  have  killed 
a  shark."  Upon  being  placed  upon  trial  his 
counsel  interposed  the  plea  of  insanity.  The 
defendant  was  adjudged  guilty  and  sentenced 
to  death.  His  peculiar  appearance  during  the 
trial  so  affected  Mr.  Stone  that  he  went  to  see 
him  personally  at  the  county  jail,  after  his  con- 
viction, particularly  inquiring  about  a  scar 
upon  his  temple.  The  man  replied  through  an 
interpreter  that  the  scar  was  from  a  pistol 
ball  and  that  the  bullet  was  then  in  his  brain. 
Inquiring  regarding  his  family,  Mr.  Stone  be- 
came satisfied  that  the  history  of  his  life  had 
not  been  brought  out  upon  his  trial,  and  that, 
possibly,  the  defense  of  insanity  should  have 
prevailed  to  the  extent  that  the  punishment 
should  have  been  imprisonment,  rather  than 
death.  Not  being  able  to  obtain  the  address 
of  any  of  his  people,  but  only  the  fact  that  he 
was  raised  in  the  province  of  Kalma.  Sweden, 
the  attorney  wrote  a  history  of  his  trial  and 
directed  it  "To  any  friend  or  relative  of  Carl 
Johansen.  Kalma.  Sweden."  It  brought  a  reply 
from  the  Governor  of  the  province,  praying 
to  have  the  execution  delayed  until  the  story 
of  Joliansen's  life  should  be  laid  before  the 
court.  Judge  Freelon.  the  then  presiding 
Judge,  granted  the  request   for  delay,  and  the 


Frank  cM.  Stone 


Histoiy  of  the  Bencli  and  Bar  of  California. 


941 


facts  as  appeared  from  the  evidence  taken  by 
the  Government  of  Sweden,  showed  that  the 
defendant  had  in  his  native  land,  attempted 
suicide  by  shooting  himself  in  the  head,  that 
it  was  true  that  the  bullet  still  remained  in  his 
brain,  that  he  had  escaped  in  the  dead  of  win- 
ter from  an  insane  asylum,  clothed  only  in 
such  material  as  he  could  obtain  by  cutting 
up  and  using  fur  rugs.  He  jumped  from  a  two- 
story  window,  gathered  clothing  in  one  place 
and  another,  and  shipped  before  the  mast  for 
San  Francisco.  His  mother  and  two  sisters 
were  in  an  insane  asylum,  and  the  father  was 
a  subject  of  epilepsy.  Mr.  Stone  was  still  in 
office,  and  with  these  facts  before  him,  he 
called  the  jury  together,  re-submitted  the  facts, 
and  by  unanimous  vote  they  requested  the 
Governor  to  commute  the  sentence  to  life  im- 
prisonment. Governor  Stoneman  acceded  to 
the  request.  Johansen  was  sent  to  San  Quentin 
and  within  three  months  was  removed,  a  rav- 
ing maniac,  to  the  asylum  in  Napa,  whence  he 
shortly  escaped,  and  it  is  supposed  that  he 
perished  in  the  mountains,  as  remains  of  a  per- 
son answering  nis  description  were  found  some 
months  afterwards. 

The  Swedish  Society  of  San  Francisco,  and 
the  Government  of  Sweden  took  action,  extend 
ing  their  thanks  to  Mr.  Stone,  both  personally 
and  in  his  official  capacity. 

The  peculiar  Chinese  case  of  People  v.  Tarm 
Poy,  is  known  in  the  criminal  annals  of  the 
State  as  the  "Hatchet  Case."  The  facts  are 
as  follows :  On  the  corner  of  Dupont  and 
Jackson  streets,  the  most  brilliantly  lighted  cor- 
ner in  L,..inatown,  San  Francisco,  one  night 
at  about  ii  o'clock,  a  Chinaman  was  assailed 
by  a  "hatchet  man"  and  the  autopsy  showed 
seventeen  frightful  wounds  made  by  a  hatchet, 
any  one  of  which  would  have  proved  fatal. 
The  assailant  fled,  leaving  behind  him  on  the 
scene  of  the  tragedy,  a  hat.  The  present  Police 
Captain  Wittman  was  then  a  sergeant  and  in 
charge  of  the  Chinatown  squad.  He  ascer- 
tained that  the  murderer  had  fled  along  Du- 
pont street  for  about  twenty-five  yards,  dis- 
appeared up  a  stairway  and  no  trace  of  him 
was  thereafter  discovered,  nor  was  any  one 
found  in  the  building  who  could  be  in  any  way 
implicated  in  the  perpetration  of  the  crime. 
At  the  head  of  the  first  flight  of  stairs,  the 
sergeant  found  an  open  window.  At  this  point 
of  his  investigation  he  was  informed  that  the 
relatives  of  the  deceased  suspected  one  "Tarm 
Poy,"  who  lived  in  Washington  alley,  as  being 
the  criminal.  The  sergeant  within  two  hours 
of  the  killing  visited  the  dwelling  place  of 
Tarm  Pay  and  arrested  him.  Asked  to  produce 
his  hat,  he  could  not  do  so,  and  upon  the  hat. 
which  was  found  upon  the  scene,  being  placed 
upon  his  head,  it  fitted  perfectly.  Sergeant 
Wittman.  placing  the  hat  and  Tarm  Poy  in 
charge  of  an  officer,  retitrned  to  the  stairway 
before  referred  to,  and  getting  out  of  the  win- 
dow, proceeded  over  the  various  intervening 
houses  and  finally  ascended  a  ladder  and 
reached  a  sky-light,  which  being  open,  he  de- 
scended through  it  to  the  room  in  which  Tarm 
Poy  had  been  found  when  arrested. 

The  fight  between  the  friends  and  relatives 


of  the  deceased  and  of  Tarm  Poy  became  most 
intense.  The  deceased  was  of  the  "Fong  fam- 
ily." Books  were  circulated  over  the  State. 
It  was  found  that  4000  of  the  family  resided 
here;  and  the  entire  number  subscribed  to 
defray  the  expense  of  prosecution.  At  this 
point  Mr.  Stone  was  specially  retained,  hav- 
ing long  since  ceased  to  hold  official  position, 
to  prosecute  the  accused.  A  dramatic  inci- 
dent occurred  during  the  trial.  The  Chinese 
vice-consul  having  been  subpoenaed  to  testify, 
the  Chinese  interpreter  for  the  Fong  family 
suggested  that,  as  sometimes  a  Chinaman 
printed  hs  name  on  the  inside  band  of  the 
hat,  the  consul  be  requested  to  turn  down  the 
band  of  the  hat,  which  was  found  on  the  scene 
of  the  tragedy,  to  ascertain  if  any  identifying 
mark  could  be  found  thereon.  After  an  exam- 
ination, the  witness  testified  that  he  found  the 
name  of  Tarm  Poy  in  Chinese  characters  writ- 
ten on  the  band  of  the  hat.  It  was  shown  that 
the  hat  had  never  left  the  possession  of  the 
police  from  the  time  it  was  picked  up  on  the 
street.  With  this  chain  of  circumstantial  evi- 
dence, the  defendant  was  promptly  convicted 
and  sentenced  to  death.  The  case  w'as  ap- 
pealed by  the  eminent  counsel,  D.  M.  Delmas, 
who.  raised  many  and  most  interesting  ques- 
tions of  law.  The  appeal  was  unavailing;  the 
judgment  was  affirmed. 

.\t  this  point  of  the  proceedings  the  Fong 
family  was  so  grateful  to  Mr.  Stone  for  the 
outcome  of  the  case,  that  each  member  of  the 
family  then  known  to  reside  in  California,  was 
appealed  to;  and  by  contributions  in  sums 
rane-ing  from  five  cents  to  twenty  dollars,  gave 
him.  in  addition  to  a  large  money  fee,  a 
solitaire  diamond  for  which  they  paid  one 
thousand  dollars,  and  which  our  friend  still 
wears  triumphantly,  notwithstanding  the  se- 
quel. 

At  this  point  Hon.  S.  M.  Shortridge  ap- 
pealed to  the  Governor  for  clemency.  After 
various  kinds  of  arguments,  at  which,  however, 
Mr.  Stone  was  not  present.  Governor  Water- 
tnan  pardoned  Tarm  Poy  "upon  the  condition 
that  he  leave  the  State."  The  records  show 
that  Tarm  Poy  lost  no  time  in  availing  him- 
self of  the  privilege. 

The  strangest  part  of  the  story  remains  to 
be  told.  Something  like  a  year  afterward,  the 
chief  man  in  charee  of  the  prosecution  as  rep- 
resenting the  Chinese,  and  who  furnished  the 
testimony  and  produced  the  witnesses  at  the 
trial,  confided  to  Mr.  Stone  that  "it  did  not 
make  much  difference,  because  Tarm  Poy  was 
not  the  man  who  committed  the  murder."  He 
said  that  it  was  a  part  of  the  Chinese  religion 
that  when  a  man  of  a  particular  family  was 
murdered,  a  member  of  .some  antagonistic 
fanuly  must  answer  therefor  with  his  life.  In 
this  instance,  they  had  seized  upon  the  infor- 
mation gained  from  Sergeant  Wittman  and 
had  concluded  that  Tarm  Poy  came  nearer 
filling  the  hill  of  a  victim  than  any  one  of  whom 
thev  had  knowledge,  and  they  had  woven 
arotmd  him  a  mass  of  circumstantial  evidence 
almost  unparalleled  in  criminal  jurisprudence. 
He  then  and  there  told  Mr.  Stone  that  while 
the  coroner's  inquest  was  in  progress  and  the 


942 


History  of  the  Bench  and  Bar  of  California. 


hat  was  lying  upon  the  table  at  the  morgue, 
he  having  deftly  secured  a  Chinese  printing 
brush  in  his  sleeve,  had  printed  the  name  of 
1  arm  Poy  in  the  band  of  the  hat  under  the 
very  nose  and  eyes  of  the  police,  and  had  not 
been  detected  therein ;  that  he  was  satisfied 
that  another  man  had  committed  the  murder, 
but  having  no  evidence  to  substantiate  the  be- 
lief, had  determined  upon  the  sacrifice  of  Tarni 
Poy. 

In  narrating  these  facts  to  us  in  conversa- 
tion some  years  afterwards.  Mr.  Stone  said, 
"I  have  never  taken  a  Chinese  case  since  that 
trial." 

This  history  is  given  for  the  first  time,  and 
will  be  a  matter  of  considerable  astonishment 
to  the  other  learned  counsel,  who  practically 
agreed  that  the  defendant  was  guilty. 

Among  the  civil  cases  of  marked  interest  and 
which  have  been  cases  personally  conducted 
by  Mr.  Stone,  was  that  of  Cook  v.  Pendergast, 
(6i  Cal.,  at  page  72),  which  we  believe  is 
accepted  as  settling  the  law  and  practice  as  to 
change  of  venue,  fhe  point  raised  never  hav- 
ing been  before  advanced,  the  case  stands  as 
the  leading  one  upon  the  question  therein  in- 
volved. 

The  Estate  of  Flint,  100  Cal.,  page  391,  has 
been  much  cited  in  the  matter  of  contests  of 
will,  wherein  the  questions  of  undue  influence 
and  incompetency  are  raised.  The  case  must 
be  particularly  pleasant  to  him  on  account  of 
the  express  compliment  therein  given  him  by 
the  court  as  to  the  manner  of  the  preparation 
of  the  bill  of  exceptions. 

The  case  of  Humphries  v.  Hopkins  calls  for 
mention,  because  it  lays  down  the  law  as  far 
as  this  State  is  concerned,  regarding  the  rights 
of  a  local  creditor  as  against  those  of  a  re- 
ceiver of  a  foreign  court,  who  has  taken  pos- 
session of  property  within  the  jurisdiction  of 
the  court  appointing  him  receiver.  It  is  re- 
ported in  81  Cal.,  551. 

The  estate  of  William  H.  Moore,  deceased, 
wherein  for  the  last  sixteen  years  Mr.  Stone 
has  represented  the  children  of  Moore  as 
against  the  claims  of  his  second  wife,  the  step- 
mother of  the  children,  probably  covers  a 
longer  period  of  time  in  the  matter  of  litiga- 
tion than  any  other  reported  in  our  State. 
William  H.  Moore  died  in  1870.  leaving  a 
lar«e  estate,  which  has  now  been  in  litigation 
thirty  years ;  it  has  been  before  the  Supreme 
Court  in  its  various  branches  between  fifteen 
and  twenty  times,  and  can  be  cited  as  authority 
upon  more  points  of  probate  law  than  any 
other.  Judges  from  all  parts  of  the  State  have 
passed  upon  various  questions  raised.  Two  of 
the  original  counsel  in  the  case  have  become 
Superior  Judges,  and  died.  At  least  five  of 
the  several  judges  who  have  participated  in  the 
various  branches  of  the  case  have  died.  Chil- 
dren and  grand-children  of  William  H.  Moore 
have  been  born  and  reared  since  1870.  Some- 
thing like  sixty  oi"  seventy  thousand  dollars 
has  been  spent  in  litigation,  yet  .strange  to  say 
the  estate  today  remains  intact  and  of  greater 
value  than  when  Mr.  Moore  died.  Taken  as  a 
whole,  it  is  a  remarkable  probate  case — the 
strangest  part  of  which  story  was  its  culmina- 


tion in  the  year  i8gg.  Then,  after  twenty-nine 
years  of  litigation,  it  was  decided  that  the  most 
valuable  part  of  the  estate  never  belonged  to 
William  H.  Moore,  but  was  the  property  of  his 
first  wife,  who  died  one  year  before  Moore, 
and  by  the  decree  of  the  court  the  children  of 
the  first  wife  now  receive  in  value  after  thirty 
years  of  litigation,  more  than  the  amount  for 
which  the  entire  estate  was  originallj-  appraised 
in  1870. 

We  have  no  space  left  to  speak  of  the  polit- 
ical events  with  which  our  subject  has  been 
connected,  during  his  partnership  with  Senator 
Sargent,  and  the  well-remembered  Stanford- 
Sargent  contest,  nor  to  his  traits  of  personal 
character,  except  to  say  that  he  is  a  man  of 
intense  loyalty  to  friends  and  unwavering 
fidelity  to  purpose.  He  is  in  full  practice,  with 
elegant  offices  in  the  towering  Claus  Spreckels 
building.  He  is  married,  but  has  no  children. 
He  joined  the  Free  and  Accepted  Masons  in 
1868  on  becoming  of  age,  taking  during  that 
year  the  various  degrees  up  to  and  including 
thr.t  r':  Ilnight    Templar. 


FRED.  H.  TAFT. 


Fred  ti.  Taft  was  born  in  Picrrepont  Manor. 
JefTerson  county.  New  York.  April  4,  1857. 
With  his  parents  he  removed  to  Iowa  in  the 
spring  of  1863,  where  his  father.  Rev.  S.  H. 
Taft.  founded  the  town  of  Humboldt,  Hum- 
boldt county,  and  also  established  Humboldt 
College,  from  which  institution  the  son  grad- 
uated in  1878.  From  June.  1874,  while  pursu- 
ing his  studies,  he  conducted  the  Humboldt 
Kosiiius,  the  official  county  paper,  which  he 
continued  to  edit  until  he  sold  the  plant  in 
the  fall  of  1882.  The  next  spring  he  became 
one  of  the  founders  of  the  Hardin  County 
Citizen,  at  Iowa  Falls,  Iowa,  which  paper  he 
disposed  of  early  in  1884  to  accept  the  manage- 
ment of  the  Fort  Dodge,  Iowa,  Messenger. 
This  employment  he  relinquished  in  1887,  and 
in  the  next  spring  he  located  in  Siou.x  City, 
Iowa,  where  for  more  than  four  years  he  was 
with  the  Sioux  City  Newspaper  Union.  It 
was  during  the  latter  part  of  this  period  that 
he  reverted  to  his  original  intention  of  studying 
law.  and  took  up  the  work,  being  admitted  to 
practice  by  the  Supreme  Court  of  Iowa  in 
May,  1892.  He  thereupon  formed  a  law  part- 
nership with  P.  A.  Sawyer,  which  was  dis- 
solved on  Mr.  Taft's  removal  to  California  in 
the  following  January.  In  the  fall  of  1893 
Mr.  Taft  located  in  Santa  Monica,  and  soon 
resumed  his  practice,  on  forming  a  partner- 
shin  with  R.  R.  Tanner,  city  attorney,  under 
the  firm  name  of  Tanner  &  Taft.  This  firm  is 
now  one  of  those  enjoying  a  wide  acquaintance 
and  practice,  whose  demands  rendered  the  es- 
tablishment of  a  Los  Angeles  office  a  neces- 
sity late  in  1897,  and  the  two  offices  are  now 
maintained. 

Air.  Taft  was  married  in  1881  to  Frankie 
M.  Welch,  at  Humboldt.  Iowa,  and  a  son  and 
daughter  share  the  comforts  of  their  seaside 
home. 


History  of  the  Bench  and  Bar  of  California. 


943 


EDAIL'ND   TAUSZKV. 

Mr.  Tauszky  came  with  his  i)arents  to  the 
United  States  from  Hungary,  in  i8()6,  being 
but  a  child  at  the  time.  His  eldest  brother. 
Dr.  Rudolph  Tauszky.  had  preceded  tlie  rest  of 
the  family,  and  was  well  settled  in  New  York 
City  as  a  physician.  He  was  resident  phy- 
sician at  Mt.  Sinai  Hospital,  and  had  been  a 
surgeon  in  the  United  States  Army.  He  was 
also  a  medical  author  of  repute.  He  died  com- 
paratively young,  but  lived  to  see  his  brother, 
our  subject,  establislicd  in  law  practice  in  San 
Francisco,  and  to  make  him  a  l)rotlK-rly  visit 
there. 

Mr.  Tauszky  attended  school  in  New  York 
for  some  years,  until  his  mother's  death,  which 
occurred  in  1869.  He  then  went  to  St.  Louis, 
where  he  had  a  married  sister,  and  where  he 
finished  his  education.  Thereafter,  to  perfect 
himself  in  commercial  studies,  he  attended  the 
Jones  Commercial  College  of  St.  Louis,  which 
awarded   him  a  diploma. 

Mr.  Tauszky  came  to  California  in  1876. 
Locating  at  San  Francisco,  he  became  clerk  in 
the  law  firm  of  Wallace,  Greathouse  &  Hland- 
ing,  which  was  sticceeded  by  Pillsbury,  Bland- 
ing  &  Hayne.  He  was  in  that  ofiice  from 
July,  1879,  until  his  admission  to  the  bar,  in 
1885.  He  had  during  this  period  been  a  dili- 
gent student  in  the  Hastings  College  of  the 
Law.  He  has  been  industriously  occupied  at 
the  bar  of  San  Francisco  ever  since  his  ad- 
mission. In  the  years  1887-88-89  he  was  also 
a  court  commissioner  of  the  Superior  Court. 

Mr.  Tauszky  and  Mr.  T.  J.  Lyons  are  the 
reporters  of  the  decisions  of  Hon.  James  V. 
Coffey,  the  honored  and  distinguished  Superior 
Judge  of  San  Francisco.  The  first  volume 
of  these  reports  appeared  in  1888.  In  1893  he 
formed  a  partnership  with  Hon,  W.  E.  F.  Deal 
and  George  R.  Wells,  under  the  firm  name  of 
Deal,  Tauszky  &  Wells.  This  association  still 
exists,  and  has  always  done  a  large  and  general 
law  business.  A  sketch  of  Hon.  W.  F.  F. 
Deal   is   on   another   page. 


CAMERON  E.  THOM. 

Captain  Cameron  \\.  ilium,  relired  patri- 
arch of  the  bar  of  Los  Angeles,  is  a  native  of 
Virginia,  born  in  Culpeper  county,  in  18J3. 
He  came  to  this  State  in  1849,  in  the  service 
of  the  Federal  government,  for  the  juirpose 
of  taking  testimony  in  land  cases  before  lion. 
George  Burrell,  United  States  commissione'- 
for  the  Los  Angeles  district.  His  oflicial  w'>rk- 
being  accomplished,  he  remained  in  Los  .\ii 
geles,  which  has  always  since  been  his  home. 
He  followed  the  practice  of  law  for  more  than 
a  quarter  of  a  century,  with  continued  suc- 
cess, invested  in  lands,  and  long  ago  becam.' 
possessed  of  considerable  wealth.  Tn  the  early 
days  he  was  city  attorney  of  Los  Angeles,  aiil 
district  attorney  of  the  county.  He  was  Stale 
sen.i.tor  for  the  district  comprising  Los  .\n- 
geles,  San  Diego  and  other  counties,  at  the 
ninth  and  tenth  sessif)ns  of  the  legislature, 
when  that  body  met  annually,  in  1858  and 
1859.     His  politics  were,  and  still  arc.   neiim- 


cratic.     He  has  also  been  mayor  of  Los  An- 
geles. 

This  venerable  and  respected  citizen,  who  i.- 
further  referred  to  in  the  sketch  of  Judge  E. 
AL  Ross,  long  ago  retired  from  the  bar.  He 
was  one  of  our  ablest  lawyers,  and  is  a  man 
of  fine  attainments  in  general  scholarship. 


CHARLES   W.   THOMAS. 

Charles  W.  Thomas  was  born  near  Vana- 
l)urgh.  Kentucky.  October  29.  1852.  When  a 
child  of  five  his  parents  removed  to  Missouri, 
where  he  spent  the  years  of  his  childhood, 
youth  and  early  manhood.  He  was  brought  up 
cfn  the  farm,  where  his  contact  with  nature 
developed  and  matured  a  naturally  strong  and 
vigorous  body. 

The  country  at  that  time  offered  very  in- 
ferior opportunities  for  education ;  a  few 
months  in  the  year  for  a  very  few  years,  con- 
stituted the  sum  total  of  his  school  life  until 
he  was  seventeen  years  of  age.  Ambitious. 
I)lucky    and    precocious,    he    was    not    daunted 


liy  lliese  (liscouragements.  When  ;i  mere  child 
he  overheard  his  father  say  to  one  of  the  neigh- 
bors one  day  that  "Charlie  was  a  bright  boy. 
:in<l  he  intended  to  give  him  an  education,  and 
make  a  l.iwyer  out  of  him."  From  that  nui- 
menl  lie  d.ites  his  faith  in  himself,  and  de- 
termined to  make  good  his  father's  e.xpecta- 
tiiMi  (if  him.  The  father  was  a  poor  man  with 
a  large  f.imilv  ;  was  niily  getting  comfortable 
when  the  war  and  the  evils  (if  border  war- 
fare swept  away  his  jirosnerous  beginning.  The 
boy.  allhough  young,  contributed  l.irgely  In  the 
siipimrl  of  the  f.imily.  which  had  In  become 
refiigi'e>  in  ;i  neighboring  state.  Il  was  not 
iiniil  the  lad  was  a  man  in  stalme  that  peace- 
ful i)ursuits  after  the  war  made  it  possible  tn 
allempi  to  realize  his  ambition,  lie  earned 
what  he  could  on  the  f.irm.  aside  from  the 
ser\  ice  which  he  owed  his  father,  ami  with  this 
scanty  stock,  went  forth  into  the  world  to 
procure  an  education.     He  itii.trd   ilu-  Kirk* 


944 


History  of  the  Bench  and  Bar  of  California. 


ville,  Missouri.  Normal  School.  After  spend- 
ing in  one  brief  term  of  ten  weeks  his  slender 
means,  he  returned  to  the  farm  to  replenish 
his  store.  And  thus,  alternating  labor,  physical 
and  mental,  he  reached  a  degree  of  equipment 
which  enabled  him  to  conduct  successfully 
a  graded  school  at  White  Cloud,  Kansas,  as 
principal.  He  completed  the  four  years'  course 
of  the  normal,  in  two  and  one-half  years,  a 
feat  of  labor  never  before  performed  in  the 
history  of  the  school,  and  prol)ab]y  never 
equalled  since. 

The  two  years  succeeding  his  graduation 
were  spent  in  teaching,  as  principal,  at  Shel- 
Dina,  Missouri,  always  with  the  cherished  ex- 
pectation of  qualifying  himself  for  the  law.  He 
read  a  number  of  legal  treatises  during  the 
time :  and  in  the  short  space  of  six  months 
after  goin?  from  the  school  room,  was  ad- 
milled  to  the  bar  in  St.  Joseph.  Missouri,  in 
1878.  He  practiced  law  five  years  in  Oregon, 
Missouri,  when,  his  health  failing,  he  came 
to  Woodland.  California,  in  1885.  where  he  has 
been  actively  engaged  in  practicing  law  ever 
since. 

Mr.  Thomas'  life  is  a  monument  of  what 
industry,  frugality  and  perseverance  can 
achieve  over  the  most  unyielding  obstacles.  His 
marked  success  should  be  an  inspiration  to 
every  young  man  of  right  principles  and  char- 
acter. Never  having  spent  a  day  reading  law 
in  any  man's  office,  or  under  any  man's  direc- 
tion, or  in  any  law  school,  he  can  be  said  to 
be  self-made  in  the  fullest  sense.  During  his 
twenty  years'  practice  no  less  than  thirteen 
young  men  have  been  admitted  to  the  bar, 
exclusively  through  his  office,  and  under  his 
direction   and   training. 

He  finds  time  in  the  midst  of  unusual  pro- 
fessional activitv  to  devote  to  all  public  in- 
terests and  enterprises,  whether  as  president  of 
the  Chamber  of  Commerce,  or  on  the  executive 
committee  of  the  Sacramento  Valley  Develop- 
ment   .\ssociation. 

While  never  seeking  political  preferment, 
and  never  having  stood  for  office,  he  has  not 
been  indifferent  to  political  issues  and  meas- 
ures, and  has  discharged  the  duties  of  citizen- 
ship with  the  same  faithfulness  and  capa- 
bility which  characterize  every  effort  he  makes 
in  whatever  field.  He  has  been  instrumental 
in  building  up  public  libraries,  establishing  lit- 
erary soci'cties,  and  in  the  most  marked  way 
advancing  the  literary  and  intellectual  tone 
of  the  community  where  he  lives.  He  is  a 
married  man ;  has  two  children,  the  eldest,  a 
son.   in   Stanford  University. 


J.  W.  TURNER. 


This  gentleman  was  born  on  September  8, 
1848.  at  Merigomish.  Pictou  county.  Province 
of  Nova  Scotia.  He  spent  his  boyhood  days 
on  the  farm.  His  parents  were  Scotch  Pres- 
bvterians.  whose  strict  teachings  left  a  lasting 
impression  on  his  mind.  He  received  his  earlv 
educational  training  in  the  Merigomish  High 
School,  to  attend  which  he  had  to  travel  two 
miles,  and  in  the  winter  facing  the  northern 
blast  with  the  thermometer  frequently  down  to 


twenty  degrees  below  zero.  At  the  aee  of 
sixteen  he  passed  the  examination  held  for 
teachers  in  the  common  public  schools,  and 
taught  for  two  years.  In  the  winter  of  1866-7 
he  attended  the  Pictou  Academy  and  took  the 
full  classical  and  philosophical  course,  under 
Professors  Bavne  and  Jacks.  Again  he  taught 
school  in  order  to  obtain  money  to  prosecute 
his  studies,  and  thereafter,  in  1868-9,  he  at- 
tended the  medical  department  of  Dalhousie 
College  and  University  at  Halifax  City.  The 
practical  knowledge  there  acquired  in  the  dis- 
secting-room and  laboratory-  became  of  use  in 
after  years  in  the  trial  of  cases  involving  inju- 
ries to  the  person,  suits  for  malpractice  and 
where  death  resulted  from  poi,son.  In  1870  he 
read  law  under  the  directions  of  Hon.  Martin 
Isaac  Wilkins.  Queen's  Coimsellor,  and  thus 
became  acquainted  with  the  elementary  prin- 
ciples of  the  common  law.  In  December.  1870, 
he  visited  friends  in  California  and  concluded 
to  remain.  He  engaged  in  mining  in  Sierra  and 
Plumas  counties,  but,  like  many  others,  failed 


to  find  the  "blue  lead."  In  1877,  he  received  se- 
rious injuries  in  a  cave  at  Potosi.  and  while  re- 
covering entered  the  law  office  of  Clough  &  Kel- 
logg at  Quincy,  Pliunas  county.  By  close  ap- 
plication and  the  aid  of  a  most  remarkable 
memory,  he  made  rapid  progress  in  his  studies, 
and  on  December  8th.  1878.  was  admitted  to 
practice  before  Hon.  G.  G.  Clough,  Judge  of 
the  Twenty-first  Judicial  District.  Shortly 
after  this  he  opened  an  office  at  the  mining 
town  of  LaPorte.  in  southern  Plumas. 

Tlie  adoption  of  the  new  constitution  affected 
the  attorneys  throughout  the  State,  and  Judge 
Sawyer's  injunction  in  the  case  of  the  farmers 
against  the  miners  shut  down  many  mines  in 
the  northern  section,  thus  seriously  interfer- 
ing with  the  practice  of  the  mining  lawyers. 
Having  little  to  do  except  to  read  text-books, 
many  of  which  he  borrowed  from  Jud^e 
Clough,  he  mustered  up  courage,  and  UDon  a 
certificate  signed  by  Creed  Haymond  and  Geo. 
A.  Rlanchard.  presented  himself  for  examina- 
tion before  the  Supreme  Court  "with  fear  and 
trembling."  On  May  nth.  1880.  he  was  ad- 
mitted to  practice  in  all  the  courts  of  the 
State.     On  July  i6th.  1883.  on  motion  of  Judge 


History  of  the  Bench  and  Bar  of  California. 


045 


Waldo  M.  York,  he  was  enrolled  as  an  attor- 
ney in  the  Circuit  Court  of  the  United  States 
for  the  Ninth  District  of  California.  In  No- 
vember, 1880,  he  moved  to  Oroville,  Butte 
county,  and  shortly  after  entered  into  partner- 
ship with  the  late  Judge  Burt  and  ex-Attor- 
ney-General Joe  Hamilton.  The  death  of 
Judge    Burt    dissolved    the    partnership. 

Mr.  Turner's  fiery  denunciation  of  an  act 
of  the  presiding  judge  led  to  strained  rela- 
tions, and  he  burlesqued  a  decision  of  the 
judge  on  a  question  of  title  to  mining  ground 
by  pretending  to  locate  the  townsite  as  a  min- 
ing claim.  The  judge  reversed  his  ruling 
but  Mr.  Turner  refused  to  further  practice 
before  him,  and  in  1884  settled  in  Weaver- 
ville,  in  Trinity  county.  There  he  acquired 
a  lucrative  practice.  The  marriage  of  Hon. 
T.  E.  Jones,  Superior  Judge,  to  his  wife's 
sister  in  1888,  disqualified  the  court  from  try- 
ing cases  in  which  Mr.  Turner  appeared,  by 
reason  of  the  Campbell  Act.  It  operated  such 
a  hardship  on  Mr.  Turner  that  he  gave  up 
his  practice  and  located  in  1889  at  Eureka, 
Humboldt  county.  He  found  it  slow  work 
to  get  a  foothold  there,  owing  to  the  fact  that 
business  was  crystallized,  but  he  has  frequently 
been  called  into  adjoining  counties  to  try  im- 
portant cases. 

Mr.  Turner  takes  but  little  part  in  politics. 
He  is  a  tireless  worker,  patient  in  investigat- 
ing facts,  fearless  and  aggressive,  and  hav- 
ing once  undertaken  a  case,  cannot  be  swerved 
from  the  path  of  duty  as  he  sees  it.  He  is  a 
master  of  irony  and  sarcasm,  detests  treachery, 
and  denounces  the  dishonest  practices  too 
often  indulged  in  by  some  of  the  profession 
to  get  business.  He  has  not  been  successful 
in  acquiring  this  world's  goods,  but  points 
with  pride  to  the  records  of  the  Supreme 
Court  of  this  State  in  his  suit  for  libel  against 
The  Examiner  (115  Cal.  Rep.),  where  it  was 
alleged  under  oath  and  admitted  on  the  trial, 
"that  during  all  his  years  of  practice  he  de- 
meaned himself  in  the  practice  of  his  pro- 
fession with  honesty,  integrity  and  strict  fidel- 
ity to  the  interests  of  his  clients." 

He  was  married  in  1879,  and  his  family  con- 
sists of  his. wife,  two  sons  and  three  (laugh- 
ters. He  is  an  active  member  of  the  Masonic 
fraternity,  and  regards  Freemasonry  as  the 
strong  bulwark  of  liberty,  the  "light  of  the 
world,"  and  one  of  the  surest  safeguards 
against  ignorance  and  superstition.  For 
many  years,  through  the  legal  publications,  he 
has  advocated  the  abolishment  n\  trial  liy  jury, 
and  the  trial  of  all  cases  Ijcfore  three  judges; 
and  has  urged  that  our  system  of  ple;i(ling. 
mode  of  trial  and  of  appeals,  be  reformed  and 
siinplified.  He  believes  that  our  judges  should 
be  appointed  solely  on  account  of  their  ability 
and  integrity,  holding  ofifice  during  good  be- 
havior and  while  physically  able  to  discharge 
their  duties,  and  that  their  salaries  should  be 
doubled,  thus  securing  the  best  order  of  mind 
for  the  bench;  that  our  circumambulating 
Appellate  Court  should  be  abolished,  .ind  the 
court  permanently  cstal>lished  at  San  l-Vaii- 
cisco;  that  the  custom  of  writing  long  decis- 
ions should  be  changed,  and  the  decisions  he 
rendered  briefly,  orally,  from  the  bench  at  the 
conclusion    of    the    argument,    and    that    re- 


hearings  siiould  be  had  only  in  capital  cases, 
with  a  view  to  end  tiie  law's  delays  and  lessen 
the   expense  of   litigation. 


F.   P.  TUTTLE. 


Fred  P.  Tuttle  was  born  at  Auburn,  Placer 
county,  California,  September  28,  1857.  He 
attended  Yale  College,  and  the  University  of 
California,  and  was  graduated  at  Hastings 
College  of  the  Law  in  1881.  He  practiced  for 
some  two  years  at  Oakland,  and  in  188.^  opened 
an  office  with  his  father.  Chas.  A.  Tuttle,  at 
Auburn.  He  was  elected  district  attorney  of 
Placer  county  in  1886,  and  again  in  18S8.  He 
has  served  one  term  as  city  attorney  of  Au- 
burn,  and    has   been    connected   with   most   erf 


the  important  litigatit)n  in  Placer  county  since 
he  entered  on  the  practice.  In  the  course  of 
a  large  and  successful  business  he  has  made 
somewhat  a  specialty  of  mining  law,  and  is 
now  a  participant  at  the  bar  in  all  contro- 
versies of  that  character.  Mr.  Tuttle  early 
interested  himself  in  politics,  and  has  on  the 
stump  and  in  conventions  done  much  for  the 
success  of  the   Republican   party. 


WALDEMAR   J.   TUSKA. 

Mr.  Tuska  was  l)orn  in  New  York  city  in 
1850.  and  was  graduated  from  the  Columbia 
Law  School  in  M.iy,  \X(n).  with  the  degree  of 
LL.  H..  which  entitled  him  to  admission  to 
the  bar  of  the  State  Su])renK'  Court.  He  had 
not  yet  reached  his  majority,  however,  and 
the  intervening  period  of  over  two  years  was 
])assed  in  iuiropean  travel,  and  in  courses  of 
study  at  the  great  universities  of  Paris.  Ber- 
lin, and  \'ieima.  .At  the  age  of  Ji  he  re- 
turned home,  and  was  at  once  admittej]  to 
practice  in  all  the  courts  of  New  N'ork  State. 
lie  was  at  the  metropolitan  bar  lor  alxiut 
>ix  years,  when,  becoming  interested  in  min- 
ing business,  he,  in  187S,  removed  to  \'ir- 
ginia  City.  Nevada.  He  very  soon  secured 
a    good   practice   there. 

In  i87cj-'8o  Mr.  Tuska  was  assi-^tant  dis- 
trict  attorney  of   Storey   county.   Nevada,   nn- 


946 


History  of  the  Bench  and  Bar  of  California. 


der  John  H.  Harris,  by  the  latter's  appoint- 
ment, although  the  two  gentlemen  were  of 
different  politics.  In  1880,  he  was  president 
of  the  only  Hancock  (Democratic)  club  in 
Virginia  City.  He  stumi)ed  the  State  in  the 
Presidential  campaign  of  that  year,  in  com- 
pany with  Colonel  George  Flournoy,  of  San 
Francisco.  Nevada  went  Democratic  that 
year,  and  Mr.  Tuska  was  elected  to  the 
assembly.  He  was  made  chairman  of  the 
judiciary  and  corporations  connnittee.  In 
1882.  he  .settled  in  San  Francisco,  and  has  ever 
since  been  very  active  at  that  bar. 

In  1899  he  was  retained  by  the  widow  of 
Colonel  Reinhold  Richter,  of  the  First  Cali- 
fornia Volunteer  Regiment  (who  was  killed  in 
action  at  Manila,  August  4,  i8g8)  in  a  suit 
to    recover    fnmi    the    Knights    of    Pythias    the 


siuu  of  $3,000  on  a  beneficiary  certificate.  The 
Supreme  Lodge  had  refused  to  pay  the  benefit 
because  Colonel  Richter  died  in  battle.  After 
an  arduous  trial,  the  widow  recovered  judg- 
ment. Mr.  Tuska  was  one  of  the  counsel  for 
Tax  Collector  Jos.  H.  Scott,  of  San  Fran- 
cisco, in  the  contest  inaugurated  by  ex-Tax 
Collector  Ed  F.  Sheehan,  who  claimed  that, 
under  the  charter  of  1898,  Scott  was  not  eligi- 
ble.   

CHARLES  UDELL. 

Charles  Udell,  a  successful  and  prominent 
lawyer  of  Los  Angeles,  whose  office  is  in  the 
Homer  Laughlin  building,  was  born  in  Wau- 
.shara  county.  Wisconsin,  March  i,  1858,  a  son 
of  Jared  and  Paulina  (Stevens)  Udell,  who 
died  during  his  childhood.  His  father  be- 
longed to  an  old  historic  family,  which  in- 
cluded Nicholas  Udall  (as  the  name  was  then 
spelled),  the  founder  of  the  English  drama, 
who  was  born  in  1505  and  died  in  1556.  Our 
subject's  ancestors  were  among  those  who 
came  to  this  country   in   ihe  Mayflower. 

To  a  limited  extent  Mr.  Udell  attended  the 
public  .schools  during  his  boyhood,  but  the 
greater  part  of  his  education  has  been  acquired 
by  self-culture.  .\t  the  age  of  thirteen  years, 
after  the  death  of  his  parents,  he  started  out  to 


make  his  own  way  in  the  world,  working  in 
the  summer  at  whatever  he  could  find  to  do 
and  attending  school  through  the  winter 
months  as  he  found  opportunity.  Before  lo- 
cating permanently  in  California  he  had  trav- 
eled all  over  the  United  States  and  made  a 
trip  around  the  world.  In  1877  he  assisted  in 
the  construction  of  a  railroad  in  Mexico;  later 
engaged  in  mining  in  the  Black  Hills;  and  in 
its  early  davs  visited  Leadville.  Col.,  where 
he  also  engaged  in  mining.  He  was  on  the 
frontier  of  Texas  for  a  time  and  subsequently 
followed  the  sea  for  a  number  of  years. 

In  1884  Mr.  Udell  located  in  San  Fran- 
cisco. During  all  his  years  of  travel  he  had 
read  extensively,  and  he  determined  to  make 
the  practice  of  law  his  profession.  Accord- 
inelv.  in  1887  he  settled  at  Los  Angeles  and 
entered  the  law  office  of  Graves,  O'Melveny 
&  Shankland,  with  whom  he  studied  for  three 
years,  being  admitted  to  the  bar  in  1890. 
Opening  an  offfce,  he  engaged  in  practice  with 
marked  success. 

In  1890  Mr.  Udell  married  Miss  Elizabeth 
C.  Bewley,  of  Jenny  Lind,  California,  and  to 
them  have  been  born  three  children,  namely, 
Mildred,  Kenneth  and  Dorothy.  Mr.  Udell 
is  a  member  of  the  Masonic  fraternity.  An- 
cient Order  of  LTnited  Workmen,  Woodmen 
of  the  W^orld,  Maccabees,  and  the  Fraternal 
Brotherhood,  and  politically  is  a  staunch  sup- 
porter of  the  Republican  party.  In  the  fall 
of  1898  he  was  elected  a  member  of  the  board 
of  education  of  the  city  of  Los  Angeles,  which 
position  he  held  until  business  called  him  to 
Nome,  Alaska,  in  April,  igoo.  Previous  to 
his  departure  for  Alaska,  he  formed  a  par- 
nership  with  L.  L.  Shelton,  an  attorney-at-law, 
formerly  of  Galesburg,  111.,  under  the  firm 
name  of  LMell  &  Shelton.  Leaving  his  Los 
.•\ngeles  practice  in  the  hands  of  his  partner, 
he  left  Los  .\ngeles  on  the  Thrasher  (the  first 
vessel  leaving  for  Alaska),  April  21st.  1900. 
.■\fter  spending  about  three  months'  time  in 
Nome,  he  removed  to  Teller,  Alaska,  where  he 
is  now  established  in  the  practice  of  his  pro- 
fession. 

R.   H.   F.   VARIEL. ' 

The  president  of  the  Bar  Association  of  the 
city  of  Los  Angeles,  as  might  be  said,  no 
doubt,  of  the  president  of  any  bar  association 
in  a  large  city,  represents  the  intelligence  and 
honor  of  the  profession,  and  has  the  unqual- 
ified respect  not  only  of  the  bar  but  of  the 
general    community. 

Robert  Henry  Fauntleroy  Variel  was  born  in 
Indiana  on  November  22.  1849.  He  comes  of 
Revolutionary  stock  on  both  sides,  his  re- 
mote ancestors  uniting  Scotch-Irish  and 
Scotch-English  blood  with  a  dash  of  Nor- 
man. The  name  Variel  is  French,  and  is 
not  pronounced  Vay-re-el,  but  as  if  spelled 
with  two  r'.s — Vair-re-el,  with  accent  on  first 
syllable.  Mr.  Variel's  father.  Joshua  H.,  was 
a  native  of  Maine.  He  went  west  before  he 
was  of  age  and  settled  in  Indiana.  There  he 
^>-as  niprried  to  Miss  Marv  A.  Casey,  in  1S48. 
R.  H.  F.  Variel  is  the  oldest  of  five  children 
— two   son'^   and   three   daughters.      TTie    father 


^.   H.   F.    Variel 


History  of  the  Bench  and  Bar  of  California. 


949 


brought  his  family  across  the  plains  in  1852, 
arrivnig  in  this  State  in  September,  and  pass- 
ing the  winter  of  1852-3 — said  to  have  been 
the  severest  ever  known  here — in  a  log  cabin 
on  a  branch  of  the  north  fork  of  Yuba  river, 
far  removed  from  any  other  habitation.  When 
spring  came,  they  located  at  the  mining  camp 
of  Caniptonville,  forty-eight  miles  northeast 
of   Alarj-sville. 

The  children  received  some  instruction  in  a 
school  that  was,  after  a  few  j'ears,  opened  in 
an  old  log  house.  For  six  months,  during 
1865-66,  the  oldest  son,  was  placed  in  a  better 
school.  He  returned  home  with  a  thirst  for 
reading,  and  it  happened  that  there  were  many 
good  books  in  the  settlement,  including  some 
standard  works.  These  stimulated  and  fed 
the  young  man's  mind  and  his  appreciation  of 
them  influenced  the  parents  to  determine  upon 
a   professional   career   for   him. 

It  happened,  too,  at  that  juncture,  that  there 
was  in  camp  first,  A.  G.  Drake,  and  then  E. 
A.  Davis,  teachers  of  the  local  school.  They 
were  observant  men  and  saw  young  Variel's 
natural  qualities.  A.  G.  Drake  was  especially 
a  capable  instructor  and  became  principal  of 
the  Marysville  High  School,  which  position  he 
held  until  his  death.  E.  A.  Davis  was  his 
teacher  only  for  a  short  time.  He  is  now  the 
Superior  Judge  of  Yuba  and  Sutter  counties. 
These  men  gave  him  attentive  instruction. 
At  the  age  of  eighteen  the  young  student  after 
examination,  was  given  a  second-grade  school 
certificate  entitling  him  to  teach  in  Yuba 
county.  He  secured  a  school  at  once,  and 
continued  to  teach,  in  various  mining  districts, 
for  five  years.  The  last  two  years  of  this 
time  he  taught  in  Plumas  county,  at  Crescent 
Mills,  under  a  first-grade  State  certificate 
granted  him  in   1S70. 

Mr.  Variel  presents  to  us  next  the  tmique 
instance  of  a  man  entering  on  the  practice  of 
law  and  the  study  of  law  at  the  same  time. 
In  1873,  he  was  elected  district  attorney  of 
Plumas  county,  on  the  Republican  ticket.  He 
had  never  studied  law.  And  he  was  the  only 
man  on  the  ticket  who  was  elected.  He  took 
the  ofifice  with  the  opening  of  the  year  1874. 
How  did  he  come  out?  Well,  he  was  elected 
again  at  the  end  of  his  term  ;  and  again,  and 
again,  imtil  five  terms  had  passed,  and  he  posi- 
tively refused  to   stand   again   for  the  place. 

Does  this  read  like  fiction?  Well,  there  is 
the  record,  all  oj)en  for  examination,  in  the 
courthouse  at  Quincy. 

He  diligently  studied  law  from  the  time  he 
took  the  ofifice;  indeed,  from  the  time  Ik-  was 
nominated  for  it,  and  left  the  place  after  his 
long  tenure,  a  well-informed  and  experienced 
lawyer. 

That  is  the  man  who  is  nnw  i)ri-si(K'nt  nf  tin- 
Bar  Association    in    the   metr(lI)()li'^   nf   tin-   'M, 
posite  end  of  the  State. 

Before  making  his  long  reniuve  from  nortii 
to  .south,  Mr.  Variel  represented  I'hunas  and 
Sierra  counties  in  the  assemlily.  It  was  at 
the  session  of  1887.  wlun  Hon.  Stephen  M. 
White  was  president  pro  tern  of  the  senate, 
and  Hon.  W.  11.  Jordan  was  sneaker  of  the 
assembly.  Did  we  say  that  he  left  the  office  of 
district    attorney    a    well-infornud    and    exjier- 


ienced  lawyer?  This  was  the  sentiment  at  the 
capital,  when  he  took  his  seat  in  the  assembly. 
He  was  given  the  chairmanship  that  of  right 
belongs  only  to  the  best  lawyer  in  the  body 
— that  of  the  judiciary  committee. 

When  the  legislature  adjourned,  Mr.  Va- 
riel removed  to  Oakland,  and  opened  a  law 
office  in  San  Francisco.  His  name  is  in  only- 
one  San  Francisco  city  directorv,  that  for 
the  year  1888.  In  January  of  that  year,  before 
that  directory  was  issued,  he  had  settled  per- 
manently in  Los  Angeles,  as  being  not  only  a 
fine  business  center,  but  a  place  far  more  agree- 
able to  his  health.  He  soon  formed  a  partner- 
.ship  with  Stephen  M.White,  and  became  prom- 
inent at  the  bar  of  his  new  home  city.  He  has 
an  interesting  family.  His  wife  was  Miss 
Caroline  Vogel,  to  whom  he  was  united  in 
1876.  Mr.  Variel  has  been  practicing  alone 
now  for  many  years,  except  that  his  only 
brother,  who  is  also  a  lawyer  of  fine  ability, 
is  associated  with  him  informally.  A  suite 
of  large  and  pleasant  rooms  close  to  the  court- 
house, and  a  great  law  library,  occasion  re- 
mark by  all  visitors. 

In  the  History  of  the  Los  Angeles  Chamber 
of  Commerce  (1900),  of  which  body  Mr.  Va- 
riel has  been  a  member  since  1896.  is  a  no- 
tice of  him,  from  which  we  have  not  taken 
any  of  our  facts  set  forth  above,  but  the 
closing  passages  may  fitly  conclude  our  own 
sketch,    as    follows : 

"Mr.  Variel  gives  much  time  to  public  in- 
terests. In  framing  a  city  charter,  as  presi- 
dent of  the  Bar  Association,  as  trustee  of  the 
State  Normal  School,  as  trustee  of  the  law 
library,  as  a  member  of  the  Chamber  of  Com- 
merce, and  in  many  other  ways,  he  shows  his 
public  spirit.  He  is  of  a  marked  social  turn. 
He  is  a  member  of  the  Jonathan  Club,  of  the 
Repul)lican  League,  of  the  highest  orders  of 
Masonry,  including  the  Mystic  Shrine,  of 
which  he  is  high  i)riesl  and  prophet.  He  is  an 
enthusiastic  sportsman,  a  member  of  the  Creel 
Club,  of  the  Cerritos  Gun  Club,  the  Los  .An- 
geles Gun  Club,  and  the  Los  .Angeles  Sharp- 
shooters. He  is  an  excellent  reconteur.  an 
interesting  public  speaker,  and  not  infrequently 
he  'drops  into  poetry.'  to  the  delight  of  liis  au- 
ditors."   

.\.  I".  \A.\  i)iv.i:u. 

riiis  well-known  citi/en  of  Calif«.)rnia  was 
born  in  Delaware  county.  Ohio.  He  conies  of 
good  Knickerbocker  stock,  the  Van  Duzer 
family  iieing  one  of  the  original  colony  from 
Holland  wJM  founded  the  city  of  New  York. 
In  the  early  part  of  the  present  century,  .\bra- 
h.im  \'an  Duzer,  grandfather  of  .\.  P.  \'an 
I  )ii/er,  removed  to  Ohio,  and  from  there  the 
l\iv.  J.icob  \'an  Duzer.  his  father,  removed  to 
Iowa  in  1839.  He  was  educated  in  the  com- 
mon .scIumjIs  of  tiiat  slate,  and  was  one  of  the 
first  students  to  enter  Cornell  College,  at  Mt. 
\'ernon.  Iowa,  then  known  .is  the  Iowa  Con- 
ference Academy.  .At  the  age  of  twenty-one 
Ik-  came  to  California.  locating  in  Siskiyou 
countv.  where  he  was  elected  district  attorney 
in  1863.  At  the  close  <if  his  term  he  went  to 
Xew  S'ork  city  and  graduated  at  the  Cohmibia 


950 


History  of  the  Bench  and  Bar  of  California. 


Law  College,  and  then  returned  to  California. 
In  1868  Mr.  Van  Duzer  removed  from  North- 
ern California  to  San  Francisco,  where  he  has 
since  lived.  For  eisrht  years  he  had  charge  of 
the  office  of  the  United  States  attorney  for 
California,  as  first  assistant,  being  most  of  the 
time  acting  United  States  attorney.  He  re- 
signed this  position  in  1882.  and  entered  upon 
th'e  general  practice  of  the  law  in  San  Fran- 
cisco.     Mr.    Van   Duzer's   first   vote    was   cast 


for  Stephen  A.  Douglas  for  President.  At 
the  commencement  of  the  Civil  War  he  helped 
to  organize  the  Republican  party  in  Northern 
California,  and  always  has  been  a  prominent 
leader  in  that  organization.  At  the  bar  and 
on  the  public  platform  he  is  always  regarded 
as  one  of  the  leading  orators  of  California. 


L.  H.  VALENTINE. 


the  city,  and  equally  as  popular  with  the  voters 
— especially  Republicans — as  either  of  the 
other  gentlemen  who  were  candidates ;  but 
his  name  was  so  placed  upon  the  ticket  as  to 
be  misleading  to  a  very  large  number  of 
voters,  who  thought  that  only  one  judge  was 
to  be  elected ;  and  at  the  count  it  was  dis- 
covered that  in  nearly  every  precinct  there 
were  many  straight  Republican  tickets  upon 
wliich  the  first  name  alone  was  stamped  for 
Supreme  Judge,  full  term.  Mr.  Valentine's 
name  was  thus  overlooked  on  enough  straight 
Republican  ballots  to  have  elected  him. 

When  Mr.  Valentine  received  his  nomination 
for  Superior  Judge,  a  leading  Los  Angeles 
daily,  in  a  notice  of  his  life,  dwelt  upon  his 
course   in   the   legislature,  as   follows : 

"In  the  session  of  1857  he  soon  came  to  be 
recognized  as  one  of  the  leaders  of  the  Re- 
publican majority  in  the  assembly.  Prior  to 
the  session  of  1899  he  was  prominently  men- 
tioned for  speaker  of  the  assembly,  and  had 
most  encouraging  assurances  of  election,  but 
withdrew  his  name  as  a  candidate  for  that  po- 
sition, fearing  that  his  candidacy  would  miti- 
gate against  the  chances  of  his  friend  and 
fellow-townsman.  Hon.  R.  N.  Bulla,  for  elec- 
tion to  the  United  States  senate.  Mr.  Valen- 
tine felt  that  the  people  at  this  end  of  the 
State  were  more  interested  in  securing  a 
United  States  senator  from  the  south  than  in 
his   election  as   speaker. 

"In  the  session  of  1899.  when  Speaker 
Wright  was  deposed,  Mr.  Valentine  was  ten- 
dered the  position  of  speaker  almost  unani- 
mously by  the  Republican  majority,  but  de- 
clined for  the  reason  that  he  was  then  chair- 
man   of   the    wavs    and    means    committee,    by 


Mr.  Valentine,  a  prominent  member  of  the 
bar  of  Los  Angeles,  and  one  of  the  Republican 
nominees  for  Superior  Judge  in  the  fall  of 
1900,  is,  like  Mr.  White  and  Mr.  Hunsaker. 
bar  leaders  of  that  city,  a  native  of  California. 
He  was  born  at  historic  Coloma,  in  Novem- 
ber. 1859.  He  was  educated  in  the  public 
schools,  and  taught  school  himself  from  1878 
to  1884.  For  the  last  two  years  of  this  period 
he  was  principal  of  the  public  schools  of  Plac- 
erville,  and  also  a  member  of  the  county  board 
of  education.  He  resigned  both  of  these  po- 
sitions to  enter  Hastings  College  of  the  Law. 
Graduating  from  that  college  in  1887.  with  the 
honors  of  his  class,  he  immediately  located  at 
Los  Angeles,  and  has  always  since  resided 
there,  engaged  in  the  practice  of  law. 

Mr.  Valentine  has  made,  in  addition  to  a 
high  reputation  as  a  lawyer,  an  excellent  rec- 
ord as  a  legislator.  He  has  lately  served  in 
the  assembly  for  two  sessions.  He  was.  as 
first  stated,  one  of  the  Republican  candidates 
for  Superior  Judge  in  1900.  His  defeat  was 
it  is  generally  conceded,  due  to  the  unfortunate 
position  "of  his  name  on  the  ballot  used  in 
the  election.     Mr.  Valentine  is  well  known  in 


far  the  most  important  committee  of  the  house, 
and  which  gave  him  a  position  of  greater 
power  and  pjestige  than  he  could  gain  at  the 
time  as  speaker;  he  had  the  work  of  his  com- 
mittee well  in  hand  and  to  leave  it  at  that 
time  for  the  speakership  would  probably  have 
resulted  in  the  failure  of  some  very  important 
measures  affecting  the  finances  of  the  State, 
which    he    was   anxious    to   complete,    notably. 


History  of  the  Bench  and  Bar  of  California. 


9nl 


a  bill  imrnduced  by  liiin  regulating  the  State 
printing  and  the  expenses  of  the  State  print- 
ing office.  He  secured  the  passage  of  this  bill 
and  it  has  resulted  in  a  saving  of  over  $150,000 
to  the  State  for  the  two  fiscal  years  of  1899 
to  1901.  As  chairman  of  the  ways  and  means 
committee  it  devolved  upon  him  to  prepare  the 
general  appropriation  bill,  which  provides  for 
the  support  of  the  Stale  government  and  State 
institutions  for  the  next  ensuing  two  fiscal 
years.  The  general  appropriation  bill  pre- 
pared and  introduced  by  Mr.  Valentine  was 
for  $286,000  less  than  that  providing  for  the 
last  two  years  of  Governor  Budd's  adminis- 
tration, and  was  a  direct  saving  to  the  people 
of  the  State  of  that  amount.  The  bill  passed 
both  houses  of  the  legislature  with  changes 
amounting  to  less  than  $10,000,  and  was  signed 
by  the  Governor  on  the  day  it  reached  him, 
without  the  veto  of  a  single  item,  a  record  that 
has  never  been  equaled,  so  we  are  informed, 
by  any  other  appropriation  bill. 

"Mr.  Valentine  also  was  the  author  and  se- 
cured the  passage  of  a  bill  requiring  con- 
tractors for  street  improvements  to  furnish 
a  bond  in  half  the  amount  of  their  con- 
tract, for  the  benefit  of  the  laborers  and 
material  men  who  furnish  labor  and  ma- 
terial in  the  construction  of  such  improve- 
ments. Prior  to  the  passage  of  this  bill  la- 
borers and  material  men  had  no  security  what- 
ever for  the  payment  of  their  labor  and  ma- 
terial, and  it  very  often  happened  that  the  poor 
laborer  was  beaten  out  of  his  honest  wages 
by  unscrupulous  contractors.  This  bill  practi- 
cally guarantees  them  their  pay. 

"Mr.  Valentine  is  an  able  and  industrious 
lawyer,  and  stands  well  at  the  bar  of  this 
county."  

M.   S.  WAHRHAFTIG. 

Mr.  Wahrhaftig  came  to  the  United  States 
in  1882  from  the  land  of  the  Czar.  He  was 
one  of  many  thousands  who  left  that  country 
in  that  year  to  escape  intolerable  race  pre- 
judice and  oppression.  He  had  been  well 
educated,  but  had  no  acquaintance  with  the 
English  tongue.  Some  years  after  his  arrival 
in  America  he  located  in  Tulare  county,  and 
engaged  in  farming.  Thence  he  removed  to 
a  small  fruit  tract  near  Sacramento  city.  The 
agricultural  depression  of  the  early  nineties 
drove  him  into  the  capital  city  in  search  of 
manual  employments.  He  found  work  of  dif- 
ferent kinds  and  was  usually  occupied.  It  was 
during  this  period  that,  by  a  course  of  read- 
ing, on  which  his  earnest  mind  and  memory 
took  a  firm  hold,  he  ac(|uired  su«.-h  legal 
knowledge  as  qualified  him  for  an  examina- 
tion before  the  Supreme  Ci)urt  of  the  State. 
That  tribunal  admitted  him  to  the  bar,  in 
August,  1897 — the  first  Russian  Jew  ( it  was  so 
announced  by  a  Jewish  paper  at  the  time) 
honored  with  the  title  of  attorney  and  coun- 
sellor at  law  on  the  Pacific  coast. 

Mr.  Wahrhaftig  is  now  about  forty-one 
years  old  and  speaks  English  fluently.  He 
began  the  practice  at  Sacramento  and  has  re- 
mained there,  quite  gratified  with  tlie  encour- 


agement he  has  met  and  the  Lumuc^^  ui.ii  has 
come  to  him.  He  is  a  public-spirited  man. 
and  IS  active  in  the  Masonic,  Odd  Fellows! 
L  O.  B.  B.,  and  several  other  fraternal  orders! 
He  IS  single,  but  has  the  company  of  his 
mother,  who  is  in  excellent  health  and'  strength 
at  the  age  of  eighty-two  years. 

J.  F.  WAIEKMAX. 

Jesse  F.  Waterman  was  born  in  Maine,  in 
1858.  His  early  life  was  spent  on  a  farm.  He 
attended  the  district  school  and  was  graduated 
from  Bowdoin  College,  at  Brunswick.  Maine 
in  1885,  with  the  degree  of  .\.  B.  He  received 
the  degree  of  LL.  B.  from  B(Jston  L'niversity 
Law  School  in  1887.  He  was  admitted  to  the 
SuflFolk  bar  in  the  same  year.  He  came  to 
California  and  settled  at  Los  Angeles  in  the 
latter  part  of  that  year:  also,  has  pr.icticed 
there  since  that  time.  His  practice  is  gen- 
eral— he    has    no    specialty. 

Mr.  Waterman  is  a  married  man.  but  has  no 
children. 


RUSSELL  J.  WATERS. 

Russell  Judson  Waters,  who  was  rei)resen- 
tative  in  the  Fifty-sixth  congress  from  the 
Sixth  district,  comprising  Los  Angeles.  Monte- 
rey. San  Luis  Obispo.  Santa  Barbara.  Santa 
Cruz,  and  Ventura  counties,  was  born  at  Hali- 
fax, Vermont,  June  6.  1843.  He  was  taken  at 
the  age  of  four  years  to  Franklin  county.  Mas- 
sachusetts, where  his  early  life  was  spent 
partly  on  a  farm  and  partly  in  a  factory.  He 
attended  the  district  schools  at  intervals  be- 
tween his  work.  He  learned  the  machinist's 
trade  at  Sherburne  Falls.  Massachusetts:  aft- 
erwards taught  school  at  Charlemont  Center. 
Massachusetts.  Entering  Franklin  Institute  in 
the  same  state,  he  was  duly  grailuated  and 
was  later  there  engaged  as  professor  of  Latin 
and  mathematics.  Removing  to  Chicago,  he 
studied  law  in  the  office  of  Rich  &  Water- 
man, and  was  admitted  to  the  bar  in  1863. 
He  practiced  in  Chicago  until  i88<).  when  lie 
came  to  California  for  his  health  but  his 
stay  ran  into  a  permaiunt  residence.  an<l  he 
found  congenial  em|)liiyinenl  in  m.iierially  aid- 
ing to  develiip  the  southern  p.irl  of  the  .State. 
At  first  locating  at  Redlands.  he  removed  to 
Los  Angeles  in  i8()4.  Since  thai  time  he  has 
been  a  director  of  the  Columbia  Savings 
Bank,  president  of  the  I'asadeiia  Coiisoli<iated 
(ias  Company,  president  of  the  Los  .'\ngeles 
Directory  Company,  treasurer  of  the  Los  .'\n- 
geles  Chamber  of  Commerce,  vice-president  of 
the  Citizens'  Bank,  and  connected  with  many 
ollur   public   iiisiiiutions. 

In  i8ij8  .Mr.  Waters  w.is  unanimously  n<»nii- 
nated  by  the  Republican  convenli«Mi  of  his  <!is- 
trict  for  congress.  an<I  was  elected,  receiving 
24.050  voles,  to  20.508  for  C.  H.  Barlow.  I-'u- 
sionisl.  and  i.i.u*  f'^r  J.  T.  Van  Rensselaer. 
Prohibitionisi.  He  declined  to  run  for  the 
ofiice  in  1900.  or  to  let  his  name  go  before  the 
convention  of  his  party. 

Mr.  W'alers  was  united  in  marriage  in  i86q 
with  Mary  .Adelaide  Mallard,  daughter  of  Hon. 


952 


History  of  the  Bench  and  Bar  of  California. 


jDiiathan    Ballard,    of    Charlcimint,    Massachu- 
setts, and  has  four  children. 

This  sketch  is  taken   substantially   from  the 
Official  Directory  of  the  Fifty-sixth  congress. 


JAMES  A.  WAYMTRE. 

James  A.  Waymire,  Judge  of  the  Superior 
Court,  San  Francisco,  in  1882,  was  born  on 
December  9,  1842,  in  Buchanan  county,  Mis- 
souri. His  father.  Stephen  K.  Waymire,  was 
a  carpenter  and  a  farmer,  owning  160  acres  of 
land  on  the  Missouri  River,  near  a  small  vil- 
lage. In  1843  the  village  was  laid  out  into 
the  town  of  St.  Joseph,  which  now  has  be- 
come a  flourishing  city.  Stately  buildings 
cover  the  old  Waymire  farm.  Judge  Way- 
mire's  paternal  ancestors  came  from  Germany, 
near  Saxe- Weimar,  about  the  year  17,32,  and 
settled  in  Pennsylvania.  Subsequently  a  por- 
tion of  them  removed  to  North  Carolina,  and 
afterwards,  in  obedience  to  the  law  of  emigra- 
tion, drifted  westward  by  way  of  Indiana  and 
Ohio  to  Missouri.  His  mother,  Mahala  E. 
Gilmore,  was  of  Irish  origin.  His  maternal 
grandfather,  James  Gilmore,  was  a  Virginian 
by  birth,  but  became  a  pioneer  of  Kentucky 
and  Missouri.  On  both  sides  there  were  rep- 
resentatives of  the  family  in  the  wars  of  the 
Revolution  and  of  1812,  and  also  in  the  In- 
dian wars.  In  1808  one  branch  of  the  Waymire 
family  established  a  settlement,  near  Dayton, 
Ohio,  where  their  descendants  still  live,  num- 
bering several  hundred. 

In  1845  Stephen  K.  Waymire  started  over- 
land to  Oregon  with  his  family  in  a  company 
of  which  his  brothers,  Frederick  and  John, 
with  their  families,  were  members.  Oregon 
was  then  an  almost  unknown  land,,  and  there 
was  not  even  an  established  wagon 'road  con- 
necting it  with  the  inhabited  portion  of  the 
states.  After  crossing  the  Missouri  River. 
Stephen  K.  was  thrown  from  his  horse  and 
died  from  injuiies  caused  by  the  fall.  His 
widow,  with  her  boy,  James,  returned  to  her 
father,  who  resided  in  Buchanan  county,  Mis- 
souri. Frederick  and  John  became  successful 
as  pioneer  farmers  and  business  men  in  Ore- 
gon. The  former  was  an  active  member  of 
several  sessions  of  the  legislature  and  of  the 
convention  that  framed  the  State  constitution 
in  1857.  He  died  in  1872.  John  built  the  first 
wharf  at  Portland,  and  became  a  merchant  at 
Dallas,  Polk  county. 

In  1852  James  Gilmore  with  his  family  in- 
cluding his  daughter,  the  widow  Waymire,  and 
her  son  James,  our  subject,  went  overland  to 
Oregon.  The  inmiigrants  formed  a  settlement 
near  Roseburg,  in  what  afterwards  became 
Douglas  county,  Oregon.  Schools  and 
churches  were  established  as  necessary  accom- 
paniments of  the  colony. 

At  fourteen  years  of  age  James  was  quite 
clever  as  a  writer  of  l)oth  prose  and  verse. 
At  seventeen  he  had  acquired  a  fair  knowledge 
of  mathematics  and  Latin  with  the  rudiments 
of  Greek,  and  had  learned  phonography.  After 
reaching  fourteen  years  of  age  he  began  mak- 
ing his  own  way  in  the  world.  His  first  earn- 
ings  were   by   chop])ing  cordwood.      At    fifteen 


he  was  a  full  hand  in  the  harvest,  in  making 
rails  and  in  other  farm  work.  The  next  year, 
having  acquired  a  horse  and  saddle,  he  ob- 
tained employment  during  the  summer  at  $2.50 
per  day  in  driving  cattle  to  Washington  Ter- 
ritory. In  i860  before  he  was  eighteen,  he 
taught  school. 

This  being  the  first  presidential  election  at 
which  the  people  of  Oregon  were  privileged  to 
vote,  and  on  account  of  the  slavery  excite- 
ment, great  interest  was  felt.  Young  Waymire, 
though  not  old  enough  to  vote;  made  speeches 
for  Lincoln,  having  become  a  zealous  Repub- 
lican by  his  historical  studies  and  from  read- 
ing the  Douglas-Lincoln  speeches,  lectures  of 
Channing,  the  Tribune,  the  proceedings  of  con- 
gress, etc.  Most  of  his  relatives  were  pro- 
slavery  in  their  views.  In  September  and  Oc- 
tober he  assisted  in  reporting  the  proceedings 
of  the  Oregon  legislature  for  the  Oregonian 
and  other  new.spapers.  This  was  the  session  at 
which  Colonel  E.  D.  Baker  was  elected  United 
States  senator  sfter  an  exciting  contest.  The 
young  reporter  made  the  acquaintance  of  Ba- 
ker, and  became  a  great  admirer  of  his  genius. 
It  was  at  Colonel  Baker's  suggestion  that  he 
resolved  to  study  law,  and  upon  the  adjourn- 
ment of  the  legislature  he  set  about  it  by  tak- 
ing "Hoffman's  Legal  Studies"  as  a  guide. 

When  the  Civil  War  opened,  in  1861,  Way- 
mire might  have  obtained  a  commission,  but 
knowing  his  ignorance  of  military  matters  he 
preferred  to  learn  by  experience.  Adjourning 
his  school,  he  invested  part  of  the  money  in- 
tended for  college  expenses  in  a  horse  and 
equipments,  and  enlisted  as  a  private  soldier 
on  his  nineteenth  birthdaj'.  His  company, 
with  two  others,  were  sent  on  an  expedition, 
during  the  year  1862.  under  command  of  Col- 
onel R.  F.  ^laury,  to  protect  the  frontiers  and 
the  overland  immigration.  In  February.  1863, 
he  was  promoted  to  corporal.  On  April  23d 
he  was  conmiissioned  as  second  lieutenant.  His 
military  service  was  quite  eventful.  It  was 
all  rendered  in  campaigns  against  the  Indians 
in  Oregon,  Washington  and  Idaho. 

After  the  fall  of  Atlanta  and  the  successful 
march  to  the  sea,  it  became  evident  that  the 
war  was  so  far  ended  that  there  was  no 
longer  any  danger  on  the  Pacific  Coast.  There- 
upon Lieutenant  Waymire  tendered  his  resig- 
nation. 

The  young  soldier,  turning  away  from  arms, 
became  private  secretary  to  the  Governor  of 
Oregon  and  devoted  all  his  spare  time  to  the 
study   of  the   law. 

In  February,  1867,  he  was  tendered  a  com- 
mission as  .second  lieutenant  in  the  First 
United  States  Cavalry.  Alaska  had  just  been 
acquired  and  the  army  had  been  increased.  It 
was  a  common  opinion  that  in  future  it  would 
1)e  necessary  to  maintain  a  large  regular  army. 
Under  such  a  policy  promotion  would  be  rapid. 
With  these  expectations  Waymire  accepted  the 
commission  and  came  to  San  Francisco  to  be 
examined.  The  board  gave  him  a  thorough 
examination,  doubting  his  capacity  on  account 
of  his  youthful  ai)pearance.  The  new  lieuten- 
ant was  approved,  and  was  assigned  to  M  Com- 
pany, stationed  at  Camp  Lyon,  Idaho  Terri- 
torv.     Ho   ioined  it  at  once  and  was  assigned 


James  A.    Way  mi  re 


History  of  the  Bench  and  Bar  of  California. 


U55 


to  duty  as  quaricnnastcr  and  coniniissary  of 
the  post.  The  Indians  were  very  trunljlesome. 
and  the  troops  were  actively  engaged  against 
them,  but  Lieutenant  \Vaymire"s  duties  kept 
him  at  the  post.  Under  his  management  the 
expenses  of  the  post  were  greatly  reduced.  In 
May,  1869,  the  company  was  ordered  to  Ari- 
zona, and  about  the  same  time  Waymirc  was 
promoted  to  first  lieutenant.  But  congress  had 
begun  to  reduce  the  army,  and  seeing  little 
prospect  of  attaining  any  consideral>k-  rank 
during  an  ordinary  lifetime,  and  knowing  that 
every  year  he  remained  in  the  army  would 
make  it  more  difficult  to  live  outside  of  it,  he 
resolved  to  take  final  leave  of  it  and  to  enter 
upon  the  practice  of  the  law.  Accordingly, 
he  tendered  his  resignation,  and  it  was  ac- 
cepted in  September,  1869.  Allogether,  lie  had 
been  in  the  military  service  about  five  years 
and  a  half. 

Shortly  after  this  he  resumed  his  law  studies 
at  Salem,  Oregon,  and  at  the  request  of  James 
Anthony,  one  of  the  proprietors  of  the  old  Sac- 
ramento Union,  he  spent  the  winter  of  1869- 
70,  reporting  the  proceedings  of  the  senate  of 
California  for  that  paper.  In  September,  1870, 
he  was  admitted  to  the  bar  by  the  Supreme 
Court  of  Oregon,  after  the  usual  examina- 
tions in  open  court. 

Again  yielding  to  the  call  of  the  Union  he 
reported  the  senate  proceedings  at  Sacramento 
during  the  session  of  1871-72.  This  was  the 
session  at  which  the  Codes  were  adopted  and 
the  change  afforded  a  good  time  for  beginning 
law  practice  in  this   State. 

In  May,  1872,  the  judges  of  the  California 
Supreme  Court  appointed  him  phonographic 
reporter  of  that  tribunal.  In  this  position  he 
served  for  three  years.  During  that  time  he 
heard  and  took  notes  of  all  the  arguments 
made  before  the  court.  He  analyzed  every 
opinion  and  prepared  rei)orts  of  all  the  cases 
decided.  These  were  subsequently  embodied 
in  the  volumes  of  Reports  from  Nos.  41  to  49. 

In  1873  Mr.  Waymire  delivered  the  oration 
upon  Memorial  Day,  at  Sacramento,  wiiicli  at- 
tracted much  attention. 

Mr.  Wavmire  removed  to  San  Francisco  in 
July,  1874,  and  has  been  engaged  in  the  prac- 
tice of  the  law  since  May,  1875.  His  prac- 
tice has  been  of  a  general  character,  embracing 
a  wide  range  of  important  law  points.  In  the 
l)re])aration  of  his  cases  he  is  painstaking  and 
industrious.  Whenever  the  importance  of  the 
(|uestions  involved  has  justified  tlie  labor,  he 
has  made  it  a  practice  to  write  careful  i)riefs 
and  have  them  printed.  He  has  been  engaged 
in   many   important   cases. 

Judge  Waymire  went  ui)on  the  bencli  of  the 
Superior  Court,  by  the  ai)i)ointinent  of  (iov- 
ernor  Perkins,  October  17,  1881,  to  fill  a  va- 
cancy. His  appointment  was  greeted  witli  the 
general  apjiroval  of  the  bar. 

His  industry  on  the  l)ench  was  generallv 
remarked.  The  patience  with  which  he  would 
weigh  masses  of  evidence  and  the  subtlety 
which  he  would  bring  to  the  examination  of 
nice  points  of  law,  were  very  pleasing,  espe- 
cially to  lawyers  of  large  practice.  In  his 
fourteen  months  on  the  bench  he  rendered 
eleven    hundred    opinions,    a    large    pr<ip'>rii"n 


bemg  on  demurnr,  but  all  on  (pii-snunx  which 
eouiistl  li;id  made  the  subject  of  argumenl.  Of 
tliirty  ap|)cals  fn.m  his  judgments  only  three 
were   sustained. 

At  the  end  <>f  Judge  W'ayniire's  .short  term 
as  Superior  Judge  he  was  nominated  bv  his 
party  for  re-election.  The  Republicans  'were 
divided  in  San  Francisco  at  that  time  on  local 
issues,  but  he  was  presented  for  re-election 
by  both  factions  and  unanimously.  He  was 
defeated  by  a  small  majority,  owing  to  a 
change  in  the  (Jernian  vote.  In  consecjuencc 
of  an  agitation  of  the  Sunday  law  question, 
that  vote  seemed  to  be  cast  almost  solidly  for 
the  Democratic  nominees.  State  and  local,  po- 
litical and  judicial,  in  1882.  It  was  in  that 
campaign  that  Charles  Kohler.  the  large  pro- 
ducer of  native  wines  and  president  of  the 
League  of  Freedom,  went  over  to  the  Democ- 
racy from  the  Republicans  with  a  large  follow- 
ing. Mr.  Kohler.  however,  desired  to  see 
Judge  Waymire  re-elected.  The  lawyers  sup- 
ported the  Judge  with  general  concurrence. 
Hall  McAllister  ;ind  other  bar  leaders  publi>h- 
ing  a  card  in  his  behalf.  Although  defeated,  he 
received  the  highest  vote  of  all  the  Republican 
candidates  in  that  contest,  and  ran  over  5,000 
votes  ahead  of  his  i)arty  candidate  for  {gov- 
ernor. 

Resuming  his  profession,  he  expected  that 
the  work  of  building  up  a  business  anew 
would  be  the  engagement  of  years.  But  hardly 
a  year  had  passed  before  his  practice  was  so 
extensive  that  in  comparison  with  it.  his  busi- 
ness before  going  on  the  bench  was  small. 

In  F\>bruary.  1883,  Judge  Waymire  was 
elected  by  the  encam|)nient  of  the  Grand  .\riiiy 
of  the  Republic  a  member  of  the  \'eteran>" 
Home  Association  of  California  for  a  term 
of  five  years.  In  March  of  the  same  year  he 
was  chosen  a  director  of  the  association  named, 
and  served  as  chairman  of  the  executive  com- 
mittee until  March,  1885.  when  he  was  elected 
presideiH  of  the  association.  He  was  eight 
times  re-elected  as  i)resident.  It  was  at  his  sug- 
gestion that  the  Federal  government  was  me- 
morialized to  establish  a  branch  of  the  Na- 
tional Soldiers'  Home  on  the  Pacific  Coast. 
He  was  ai)pointed  to  urge  the  enactment  of 
the  necessary  law  to  that  end.  .After  several 
years  of  correspoiulence  with  members  of  the 
board  of  managers,  and  with  senators  and  rep- 
risenlatives  in  congress,  he  ha<l  the  salisf.ic- 
tion  of  seeing  a  law  passed  which  appropriated 
$150,000  to  build  the  br.inch  home.  In  No- 
vember. 1887,  the  site  was  selected  near  S.inia 
Monica.  He  was  also  a  delegate  to  the  N.i- 
tional  encam])menl  of  the  (irand  .\riny,  held 
Ml    Portl.iinl.    Maine,    in    June.    1885, 

In  181JO  President  Harrison  .ippointed  Judge 
W.'iyiiiire  a  member  of  the  bo.inl  of  visitors 
I  CI  West  Point,  in  the  proceedings  of  which  he 
look  gre.il  interest.  He  was  nominated  on  the 
1\(  |iulilic.in  ticket  in  iSijJ  as  a  I'rtsidenli;il 
eieciiir  and  c.mvassed  the  State  for  Beniamin 
li.irrison.  He  served  a  term  as  asseinblvniaii 
in  the  legislature  of  1895.  was  re-eleeied  and 
serve<i  al  the  session  of  i8<)7.  In  both  sessions 
he  took  a  leading  part,  especially  as  a  incm- 
iur  of  the  judiciary  conimiltee.  of  which  lie 
was    chairman    al     tlie    session    of    |S<;7.      He 


956 


History  of  the  Bench  and  Bar  of  California. 


was  urged  to  be  a  candidate  for  United  States 
Senator  at  the  session  last  mentioned,  but 
declined  for  the  reason  that  he  had  promised 
to    support    Senator    Perkins. 

Having  become  interested  in  the  bonds  and 
lands  of  Turlock  Irrigation  district  in  Stanis- 
laus and  Merced  counties,  he  was  forced  by 
his  own  interest  to  undertake  the  completion 
of  the  work  of  that  great  irrigation  system. 
The  contractors  had  failed  to  carry  out  their 
undertaking  for  want  of  money,  the  district 
being  unable  to  sell  its  bonds,  on  account  of 
adverse  litigation  questioning  the  validitj'  of 
the  irrigation  laws.  'J'he  work  was  only  half 
accomplished,  and  had  cost  $710,000.  In  this 
condition.  Judge  Waymire  took  it  up  in  June, 
1895,  and  after  a  struggle  of  five  years,  finished 
it,  thereby  completing  the  most  important  sys- 
tem of  irrigation  in  California  and  one  of  the 
most  valuable  in  the  world.  The  district  covers 
176,000  acres  of  fertile  land  in  Stanislaus  and 
Merced  counties.  It  was  organized  in  June, 
1887,  and  began  work  a  few  months  later. 
The  water  supply  is  obtained  from  the  Tuo- 
lumne River,  and  in  order  to  divert  the  water 
from  the  river  it  is  elevated  by  a  dam  of  stone 
laid  in  cement,  129  feet  high  and  360  feet  long. 
It  flows  from  the  river  into  a  tunnel  600  feet 
long,  cut  in  solid  rock.  Thence  it  runs  for 
two  miles  in  a  canal  cut  in  rock  and  through 
a  series  of  flumes  and  dep  cuts  to  Dry  Creek, 
which  is  utilized  as  a  part  of  the  canal  for  a 
mile  and  a  half,  a  concrete  dam  400  feet  long 
and  twenty-seven  feet  long  raising  the  waters 
so  as  to  form  a  lake  a  mile  long  and  a  half- 
mile  wide.  From  this  lake  the  water  flows 
into  an  earth  canal  seventy  feet  wide,  by 
which  it  is  carried  to  the  crossing  of  Dry 
Creek  a  mile  below.  Dry  Creek  is  crossed  in 
a  flume  60  feet  high  and  500  feet  long.  The 
lower  end  of  the  flume  enters  a  tunnel,  through 
which  the  water  flows  into  an  artificial  basin, 
thence  through  another  tunnel  into  another 
basin  and  through  a  third  tunnel  into  a  third 
basin.  Thence  it  is  carried  through  a  deep 
cut  into  a  wide  canal,  across  another  creek 
by  a  flume  40  feet  high  and  20  feet  wide.  After 
passing  this  point  a  canal  70  feet  wide  carries 
the  water  through  the  foothills  to  the  district. 
The  total  distance  of  this  complicated  work 
is  about  twenty  miles.  The  supply  of  water 
is  1500  cubic  feet,  or  75,000  miners  inches — 
enough  to  irrigate  375,000  acres.  It  is  distrib- 
uted over  the  lands  of  the  district,  by  a  sys- 
tem of  lateral  canals  aggregating  120  miles  in 
length  and  varying  in  width  from  20  to  60 
feet.  This  work  consumed  about  two  million 
feet  of  lumber  and  required  the  removal  of 
more  than  two  million  cubic  yards  of  rock  and 
earth. 

In  carrying  out  this  enterprise  it  was  nec- 
essary to  look  after  the  litigation  as  well  as 
to  finance  it  and  superintend  the  construction. 
The  statutes  of  the  State  authorized  the  bring- 
ing of  a  special  proceeding  to  determine  the 
validity  of  the  organization  of  a  district — 
known  as  "confirmation  proceedings" — as  the 
purpose  was  to  obtain  a  decree  of  court  con- 
firming and  establi.shing  the  validity  of  the 
district  by  decreeing  that  it  had  l>een  organized 
as   required  by   law.     Such   a   proceeding  had 


been  taken  to  test  the  validity  of  Modesto  dis- 
trict, which  adjoins  the  Turlock.  The  Superior 
Court,  after  a  trial,  gave  judgment  in  favor  of 
the  district ;  an  appeal  was  taken  to  the  Su- 
preme Court  of  the  State,  and  after  an  ex- 
liauslive  argument,  that  court  confirmed  the 
judgment.  The  opposition  were  not  satisfied 
and  took  an  appeal  to  the  Supreme  Court  of 
the  United  States.  The  case  was  ready  for 
decision  early  in  1894,  but  Senator  Stewart 
obtained  leave  to  file  an  elaborate  brief  and 
caused  the  submission  to  be  set  aside.  Before 
it  was  decided.  Judge  Ross  of  the  United 
States  Circuit  Court  decided  in  the  case  of 
the  Fallbrook  Irrigation  district  that  the  law 
for  tile  organization  of  irrigation  districts  was 
unconstitutional,  and  that  consequently  the 
districts  formed  under  it  were  void.  This  case, 
of  course,  if  allowed  to  stand,  would  have  de- 
stroyed the  Turlock  Irrigation  district,  along 
with  all  the  others.  Judge  Waymire  suc- 
ceded  in  getting  the  leading  friends  of  the  ir- 
rigation system,  including  the  principal  bond- 
holders, together,  and  raised  funds,  counsel 
fees  and  other  expenditures.  The  Fallbrook 
case  was  appealed,  and  the  two  cases  were  set 
for  argument  together.  Ex-Chief  Justice  A. 
L.  Rhodes  of  California  and  ex-United  States 
Circuit  Judge  John  M.  UUlon  of  New  York 
were  employed  by  the  organization  of  bond- 
holders. Judge  Waymire  himself  retained  ex- 
President  Harrison.  He  also  prepared  a  com- 
prehensive opinion  reviewing  the  opinion  of 
Judge  Ross.  It  was  of  great  assistance  to 
counsel  for  the  district  in  the  argument  of  the 
cause.  He  spent  some  time  in  consultation  with 
Judge  Dillon  and  General  Harrison.  The 
cases  came  up  for  hearing  in  February,  1890, 
and  attracted  general  attention  all  over  the 
country.  In  November  of  the  same  year  the 
court  decided  the  cases,  fully  sustaining  the 
constitutionality  of  the  law,  reversing  Judge 
Ross  in  the  Fallbrook  case,  and  confirming  the 
Supreme  Court  in  the  Modesto  case.  This  was 
supposed  to  settle  the  litigation,  but  a  few 
weeks  later  the  Supreme  Court  of  the  State 
rendered  a  decision  in  another  case  (Hughson 
vs.  Graw)  that  made  the  situation  worse  than 
ever.  A  suit  had  been  brought  in  Stanislaus 
county  to  enjoin  the  sale  of  land  for  an  as- 
sessment levied  to  pay  interest  on  the  bonds 
of  Turlock  Irrigation  district.  The  complaint 
alleged  all  kinds  of  irregularities,  including 
fraud  in  the  issue  of  the  bonds.  Instead  of 
going  to  trial  and  disproving  the  allegations, 
as  he  might  easily  have  done,  the  attorney  for 
the  district  filed  a  demurrer  and  rested  hi.s 
case  on  the  point  that  an  injunction  would  not 
lie  to  restrain  the  collection  of  an  assessment, 
as  it  was  of  the  nature  of  a  tax.  The  court 
sustained  the  demurrer,  and  the  plaintiff  ap- 
pealed, going  to  the  Supreme  Court  with  a 
record  charging  fraud  and  gross  irregularities, 
which,  of  course,  were  admitted  by  the  de- 
murrer. With  this  record  before  it.  the  court 
reversed  the  judgment,  holding  that  a  sale  of 
land  to  pay  an  assessment  levied  for  the  inter- 
est on  bonds  issued  under  such  circumstances 
could  be  enjoined.  This  put  the  bonds  under 
a  cloud  which  could  not  soon  be  removed, 
and  made  it  difficult  to  prosecute  any  work  for 


History  of  the  Bench  and  Bar  of  California. 


1)57 


an  irrigation  district.  In  fact,  work  on  all  of 
them  came  to  a  standstill,  except  in  Turlock. 
Here  the  persistence  and  energy  of  the  con- 
tractor prevailed  over  all  difficulties.  A  later 
decision  of  the  Supreme  Court,  rendered  in 
the  year  1897,  in  the  case  of  the  Central  Irri- 
gation district,  held  that  district  to  have  been 
illegally  formed  for  want  of  sufficient  notice  to 
the  board  of  supervisors  of  the  hearing  of  the 
petition  for  the  formation  of  the  district.  Ap- 
plications were  made  to  the  attorney  general 
for  leave  to  bring  actions  to  dissolve  the  Mo- 
desto and  Turlock  Irrigation  districts.  As  to 
the  first  district,  the  application  was  granted, 
but  as  to  the  second,  it  was  refused  because 
of  the  arguments  presented  by  Judge  W'aymire. 
Finally,  the  tide  turned.  Judge  W'elborn  of 
the  United  States  Circuit  Court  held  that  the 
two  years'  statute  of  limitations  protected  the 
districts  from  attack.  Soon  afterwards  the 
State  Supreme  Court  in  the  Linda  Vista  case 
decided  that  where  a  decree  had  been  made 
by  a  Superior  Court  confirming  the  organiza- 
tion of  a  district  it  was  final.  Then  came  the 
decisions  by  Judge  Morrow — the  United  States 
Circuit  Court  holding  that  the  district's  are 
protected  by  the  two  years'  statute,  and  that 
the  bonds  issued  by  Modesto  district  are  legal 
and  must  be  paid.  This  decision  indicates  the 
probable  end  of  a  litigation  that  has  cost  the 
State  many  millions  of  dollars,  retarded  its 
development  and  brought  into  disrepute  a  class 
of  securities  which  should  be  in  favor  every- 
where. 

Early  in  i8g6  Judge  Waymire  was  requested 
by  the  friends  of  Hon.  William  McKinlcy  to 
undertake  the  work  of  obtaining  the  delegates 
for  the  Pacific  Coast  states  to  the  Republican 
National  convention  for  McKinley  for  Presi- 
dent. The  task  was  not  an  easy  one,  as 
Speaker  Reed  was  a  candidate,  and  having 
lived  in  the  State,  was  in  favor,  especially  with 
such  strong  men  as  those  in  control  of  the 
railroads.  Senator  Alli.son  also  was  a  candi- 
date, and  had  a  powerful  following,  with  char- 
acteristic zeal  and  industry.  II<i\vever,  Judge 
Waymire  soon  formed  an  organization,  or 
rather  a  number  of  organizations,  through 
which  nublic  opinion  was  concentrated  so 
strongly  in  favor  of  McKinley.  that  the  sev- 
eral State  conventions  were  forced  to  instruct 
their  delegates  to  su])port  him.  Afterwards, 
during  the  campaign,  he  gave  his  entire  time 
and  undivided  attention  to  the  work  of  carry- 
ing the  Pacific  Coast  states,  contributing  freely 
of  his  own  fmids  to  the  expenses  of  the  cam- 
paign. After  the  election  he  asked  for  no 
office  for  himself,  but  many  friends  all  over 
the  coast  urged  ln>  a]>ii')iiitinriil  lo  tin-  Cab 
inet. 

Judge  Waymire  has  been  .ind  is  inleresled 
in  mining,  as  well  as  in  fanning,  lie  owns 
a  good  gold  mine  in  the  Mother  Lode,  near 
Jamestown,  and  the  controlling  interest  in  a 
gold  and  copper  mine  in  Pl.icer  county,  which 
is  deVeloi)ing  into  a  gre.il  property.  But  his 
chief  enjoyment  is  derived  from  his  library, 
his  family  and  his  friends,  whom  he  delights 
to   entertain. 

In  addition  to  his  professional  success.  Judge 
Waymire  has  made  some  fortunate  ventures  in 


country  lands  and  San  Francisco  and  Alameda 
real  estate.  His  home  is  in  the  town  of  Ala- 
meda, where  he  has  a  fine  dwelling  in  the 
midst  of  four  acres  of  land  attractively  im- 
proved. Upon  this  he  has  ex|)ended  more 
than  $.p.ooo.  He  has  a  wife,  two  sons  and 
two  daughters,  having  married  at  Lafayette, 
Oregon,  on  June  22.  1865,  Miss  X'irginia  .\nn 
Chrisman,  a  Missouri  lady,  who.  like  her  hus- 
band, is  of  German  ancestry.  His  son,  Charles 
F.  Waymire,  resides  with  his  wife  and  son 
at  Sacramento.  His  daughter.  Miss  Edna,  is 
a  graduate  of  the  State  University;  Miss 
Maude,  being  of  delicate  health,  was  trained 
under  private  tutors.  Both  daughters  are  of 
literary  taste.  Rudolph,  the  youngest  child,  is 
ambitious  to  be  an  officer  of  the  navy. 


J.  H.  G.  WEAVER. 

J.  H.  G.  Weaver  was  born  on  a  farm  near 
Quincy,  Michigan,  where  he  grew  to  manhood. 
He  attended  the  common  district  schools  in 
the  winter  and  worked  on  the  farm  in  the 
summer  until  he  was  eighteen  years  of  age. 
when  he  enlisted  as  a  volunteer  in  the  War 
of  the  Rebellion.  He  served  in  Company  I. 
Eleventh  regiment.  Michigan  \'olunteer  in- 
fantry, from  the  time  he  enlisted  until  the 
close  of  the  war. 

On  returning  home  he  again  worked  on  the 
farm  in  summer  and  attended  the  high 
schools  of  Quincy  and  Coldwat'^r  in  the  winter 
until  the  fall  of  18(18.  when  he  entered  Hills- 
dale College,  located  at  Hillsdale.  Mich.,  from 
which  he  was  graduated  in  June.  187-'.  with  the 
degree  of  B.  S.  In  the  fall  of  that  year  he  en- 
tered the  law  department  of  the  Michigan 
University,  from  which  he  was  graduated  in 
1874  with  the  degree  of  LL.  B.  His  education 
was  obtained  through  his  own  individual  ef- 
fort.s — by  working  on  the  farm  and  teaching 
school. 

.■\fter  graduation  from  the  law  ilepartmeiit 
of  the  Michigan  I'niversity  he  went  to  Kansas, 
where  he  taught  the  L'nion  high  school  of 
LaCygne  for  two  years. 

In  the  fall  of  1879  Mr.  Weaver  married 
Flora  Williams,  of  Putnam  county.  Indiana; 
they  were  married  at  her  home.  Rose  Lawn. 
in    th.it    county. 

hi  the  spring  of  1876  they  moved  to  Cali- 
fornia, taking  up  their  residence  in  llumbohit 
county,  where  they  have  resided  e\er  since. 
The  first  year  of  their  residence  here.  Mr. 
Weaver  taught  school,  holding  tlu  position 
of  principal  of  the  Areata  schoids.  Since  tlien 
he  has  followed  his  iirofession.  and  he  now 
ranks  as  one  of  tiie  leading  members  of  the 
Humboldt   bar. 

Ill  t88j  he  was  elected  a  member  of  the 
.Stale  legislature.  He  was  re-elected  in  1884 
•  ind  declined  the  nomination  for  State  scnalor 
in  i88().  He  has  also  held  the  olVue  of  city 
attorney  for  the  city  of  I'.ureka. 

He  is  a  member  of  Col.  Whipple  Post  N%i. 
JO.  (1.  .v.  R..  having  been  its  connnan«ler  twice. 
His  amiable  wife  has  been  jiresident  of  the 
corps  auxiliary  to  tliat  post. 

Mr.   Weaver  has  two  children,  Charlotte  R. 


958 


History  of  the  Bench  and  Bar  of  California. 


and  Bonita,  aged  respectively  twenty-two  and 
nineteen  years.  Both  are  graduates  of  the 
Eureka  high  school,  and  Bonita  is  now  in  the 
social  science  course  of  the  University  of  Cali- 
fornia. 

In  politics  Mr.  Weaver  has  always  heen  a 
Republican.  He  is  a  high  tariff,  gold  standard, 
general  expansionist  Republican — fully  in  ac- 
cord with  the  policy  of  the  present  administra- 
tion. He  is  a  man  of  positive  convictions, 
and  possesses  the  courage  of  his  convictions. 
There  has  been  but  one  national  or  State  cam- 
paign since  he  has  been  a  resident  of  Cali- 
fornia in  which  he  did  not  take  the  stump  in 
behalf  of  his  party.  He  is  a  forcible  and  en- 
tertaining speaker. 


FR.\XK  R.  WEHE. 


Frank  R.  Wehe  was  born  at  Downieville, 
Sierra  county,  California,  on  the  i6th  day  of 
January,  1855.  in  a  miner's  log  cabin  of  one 
room  and  a  shed.  Babies  were  scarce  then, 
and  on  the  day  of  his  birth  it  was  requested 
that  he  be  held  up  to  the  only  window  of  the 
cabin,  so  that  about  one  hundred  miners 
might  file  past  and  see  him. 


He  left  the  public  school  at  the  age  of 
twelve  to  work  in  a  mine.  He  went  to  San 
Francisco  in  1872  and  worked  at  the  Oakland 
Ferry,  tending  a  fruit  store.  Afterwards  he 
was  office  boy  for  Provines  &  Johnson,  law- 
yers of  San  Francisco.  He  returned  to  Down- 
ieville in  1878,  and  mined  a  while,  and  studied 
law.  He  was  admitted  to  practice  in  the  Su- 
perior Court  in  1882.  The  same  year  he  en- 
tered the  office  of  Judge  P.  Vanclief,  at 
Downieville,  and  remained  with  him  until  the 
Judge  was  appointed  commissioner  of  the  Su- 
preme Court.  The  fatherly  kindness  of  the 
old  Judge  for  the  yoimg  briefless  lawyer  did 
much  to  shane  the  latter's  future,  and  Mr. 
Wehe  gives  that  association  credit  for  his 
later  success.  He  was  admitted  to  the  bar  of 
the  Sunreme  Court  of  the  State  in  i8go. 

In  1882,  1884.  1886  and  1888  Mr.  Wehe  ran 
on  the  Democratic  ticket,  in  the  Republican 
countv   of   Sierra,   for   district   attorney,   being 


defeated  each  time.  In  i8c,o  he  ran  on  the 
Democratic  ticket  fur  the  assembly  in  the  dis- 
trict then  composed  of  the  counties  of  Plumas 
and  Sierra.  The  Republican  majority  was 
over  four  hundred.  He  was  again  defeated, 
but  this  time  by  only  forty-two  votes,  carrying 
Sierra  county  by  one  hundred  and  twenty-two 
maiority.  In  1892  he  was  elected  district  at- 
torney of  Sierra  county  by  562  majority,  the 
largest  majority  ever  given  a  candidate  for 
that  office  in  that  county.  He  was  re-elected 
in  1894,  and  again  in  1898,  being  still  an  in- 
cumlx'ut  of  the  office. 

In  1882  he  married  Miss  Helen  M.  Hill,  also 
a  native  of  Downieville,  and  they  have  four 
children.  Mrs.  Wehe  is  of  a  social  disposi- 
tion, and  their  cosy  home  is  the  scene  of  many 
pleasant  gatherings. 

Mr.  Wehe  has  been  leading  counsel  on  one 
side  or  the  other  in  nearly  every  case  of  any 
importance  tried  in  Sierra  county  for  the  last 
ten  years,  and  now  enjoys  a  large  practice. 

In  1897  he  was  elected  president  of  the  Sierra 
County  Miners'  Association,  and  has  been  re- 
elected  each  year   since. 

He  has  always  been  an  enthusiastic  Demo- 
crat, but  also  enjoys  to  a  large  degree  the  es- 
teem of  the  leading  Republicans  of  his  county. 


M.  A.  WH EATON. 


Milton  A.  Wheaton  of  San  Francisco,  who 
has  been  so  distinguished  in  patent  cases  for 
thirty  years,  was  born  in  Oneida  county.  New 
York,  November  14,  1830.  He  is  of  an  old 
American  family.  His  father  was  a  wagon- 
maker,  and  had  the  reputation  of  being  able 
to  make  anything  in  the  way  of  mechanical 
construction.  His  genius  in  this  line  became 
the  inheritance  of  the  son.  as  has  been  repeat- 
edl}^  evidenced  by  the  latter's  masterful  grasp 
of  patent  cases.  The  father  died  when  the  son 
was  less  than  eight  years  of  age. 
.  The  son  went  to  school  in  his  native  coimty. 
and  entered  Hamilton  College,  which  is  there 
located,  in  the  year  185 1.  He  had  maintained 
himself  by  working  on  dairy  farms  since  he 
was  twelve  years  old,  becoming  familiar  with 
the  care  of  cattle,  milking,  the  manufacture  of 
butter  and  several  kinds  of  cheese.  Later  he 
worked  in  a  factory,  making  cheese  boxes, 
where  he  became  familiar  with  the  u.se  of 
machinery,  and  mechanical  hand  tools.  In 
winter  he  was  always  at  school,  and  at  all 
times  he  was  eager  for  books,  possessed  by 
the  idea  of  getting  an  education.  He  with- 
drew from  Hamilton  College,  after  less  than 
two  years  of  study,  to  accompany  an  uncle  to 
California. 

He  arrived  in  San  Franciscd,  by  way  of  Pan- 
ama, on  May  5,  1853.  He  went  at  once  into 
Butte  county.  The  first  work  he  did  was 
chopping  wood  for  a  steam  mill.  Near  the  mill 
stood  a  number  of  dead  enormous  sugar- 
pine  trees.  These  he  felled  and  cut  up,  at 
four  dollars  a  cord.  Out  of  the  top  of  one 
of  these  pines  he  got  twenty-one  cords.  In 
the  next  summer  (1854)  he  did  teaming  and 
freighting,  and  hauled  lumber.  In  the  fall  of- 
1855  he  commenced  the  study  of  law  at   Sac- 


Milton  A.    mealon 


History  of  the  Bench  and  Bar  of  California. 


961 


ramento,  in  the  office  of  Carter  &  Hartlej-. 
and  on  the  15th  clay  of  September,  1856,  he 
was,  after  an  examination,  admitted  to  the  bar 
by  the  Supreme  Court.  In  January,  1857,  he 
began  practice  in  Suisun,  Solano  county.  For 
eight  years  he  made  his  home  there  in  the 
heart  of  a  very  fertile  section  of  the  State, 
where  land  titles  were  generally  unsettled, 
and  the  practice  was  very  remunerative  to 
good  lawyers.  He  had  no  bad  habits.  He 
loved  work  and  study.  His  cast  of  mind  was 
practical  and  serious.  In  Solano  and  its  neigh- 
boring counties  in  California,  he  ac(iuired.  in 
his  younger  days,  a  local  reputation  of  being 
a  master  of  land  law,  as  he  afterwards  ac- 
quired a  reputation  as  a  master  of  patent 
law,  that  reached  across  the  continent.  Mr. 
Wheaton  has  been  called  upon  to  try  many 
patent  cases  in  the  cities  of  Boston,  New  York, 
Chicago  and  St.  Louis,  and  during  the  twenty- 
eight  years  last  past  he  has  argued  numerous 
cases  in  the  United  States  Supreme  Court  at 
Washington. 

California's  highest  Court  of  Appeals  is  its 
Supreme  Court.  It  is  not  so  in  New  York. 
Mr.  Wheaton's  first  case  in  the  Supreme  Court 
of  this  State  was  that  of  the  People  vs.  Jersey, 
reported  in  the  i8th  Cal.  Reports,  at  page 
337-  Jersey  had  hired  a  horse  and  saddle  at 
a  livery  stable  in  Suisun  City,  and  did  not  re- 
turn it.  He  was  indicted  for  grand  larceny, 
and  was  convicted  in  the  lower  court.  Mr. 
Wheaton  appealed  the  case  to  the  Supreme 
Court  and  argued  that  as  the  original  taking 
of  tlie  horse  and  saddle  was  lawful,  the  crime 
of  larceny  was  not  committed.  The  Supreme 
Court  decided  in  accordance  with  Mr.  Wheat- 
on's argument,  and  reversed  the  judgment.  Mr. 
Wheaton  subsequently  succeeded  in  obtaining 
the  full  discharge  of  his  client. 

In  Hidden  vs.  Jordan.  21  Cal.  92,  Mr. 
Wheaton  was  the  attorney  for  Hidden.  The 
action  was  brought  to  compel  the  defendant  to 
execute  a  written  conveyance  of  land  in  Solano 
county,  California,  in  accordance  with  a  verbal 
agreement  made  between  the  parties.  The 
land  was  owned  by  third  parties,  and  Jordan 
liad  agreed  with  Hidden  to  i)urchase  the  legal 
title,  pay  a  part  of  the  purchase  mone}^  there- 
for. Hidden  furnishing  the  remainder,  and  to 
convey  the  land  to  Hidden  upon  the  later  re- 
paying the  advances  made  by  Jordan  with  in- 
terest thereon.  Jordan  purchased  the  lan<l 
as  agreed,  and  took  the  title  in  his  own  name, 
and  then  refused  to  carry  out  his  oral  agree- 
ment to  convey  the  land  to  Hidden,  claim- 
ing that,  as  the  agreement  with  I  lidden  re- 
lated to  land,  and  was  not  in  writing,  it  was 
void  in  law  and  could  not  l)e  enforceil.  The 
suit  involved  the  subject  of  resulting  trusts, 
and  also  the  extent  to  which  verbal  agree- 
ments for  the  conveyance  of  real  estate  could 
be  enforced  in  ennily.  Mr.  Wheaton  was  suc- 
cessful in  the  suit,  am!  this  decisif)n  of  the 
Sunreme  Court  has  ever  since  been  a  leading 
authority  in  the  west  unon  the  sul)iect  of  trusts 
in  real  estate,  and  the  extent  to  which  a  court 
of  eqiiity  will  compel  the  specific  i)erf<)rmance 
of  oral  agreements  to  convey  real  estate.  From 
and  after  the  decisions  above  mentioned  the 
reports    of   the    Supreme    Court    of   California 


abound  with  ca.ses  argued  by  Mr.  Wheaton 
m  that  high  tribunal.  Many  of  them  involved 
new  and  interesting  questions  lliat  naturally 
aro.se  in  a  new  country  in  which  gold  mines 
had  been  the  attraction  llial  drew  the  l)ulk 
of  its  first  immigration,  and  in  which  its  later 
Init  closely  following  industries  included  ag- 
riculture, manufactures  and  the  whole  range 
of  subjects  belonging  to  the  Ijusiness  world. 
At  the  commencement,  in  California,  the  con- 
ditions and  subjects  of  business  were  to  a  great 
extent  new,  and  naturally  many  of  the  sub- 
ject-matters of  litigation  were  novel  and  with- 
out precedents  for  guidance.  In  solving  the 
new  legal  ])ro!)lems  that  were  constantly  aris- 
ing, and  in  bringing  the  unsettled  chaotic  un- 
certainties that  attend  the  rights  of  pro])erty 
within  permanent,  fixed  and  established  rules, 
which  made  them  secure  and  safe  to  deal  in, 
Mr.  Wheaton  did  his  full  share. 

He  relates  the  circumstances  that  took  place 
in  the  Supreme  Court  in  the  case  of  Ellis 
vs.  Jeans  and  Long.s — reported  in  26  Cal.  Re- 
ports, page  272 — as  presenting  one  of  the  most 
perilous  and  excitedly  interesting  positions  in 
which  he  ever  found  any  of  his  cases  place<l. 
The  suit  was  ejectment.  It  was  commenced 
in  1856.  Jeans  was  only  a  nominal  party,  not 
claiming  any  rights  in  the  land.  The  real 
contest  was  between  Ellis  and  the  Longs,  both 
of  which  parties  claimed  to  own  the  land.  \'aca 
was  a  Mexican  grantee  of  the  land,  and  made 
a  deed  of  it  to  the  Pattens  and  Lyon  in  1849, 
while  California  was  yet  a  territory,  and  Pat- 
tens and  Lvon  deeded  the  land  to  the  Longs  in 
1851. 

In  August,  1850.  \'aca  made  a  second  deed 
vf  the  land  to  McDaniel.  McDaniel  deeded 
;;  half  interest  to  Mizner;  Mizner  and  Mc- 
Daniel deeded  to  Basye,  and  Basye  deeded  to 
Ellis.  The  Longs  claimed  tiie  land  because 
they  held  a  straight  chain  of  title  to  it  fr.mi 
Vaca.  Ellis  claimed  to  own  the  land  as  an  in- 
nocent purchaser  for  a  valuable  consideration 
because  V'aca's  deed  to  Pattens  and  Lyon 
had  not  been  recorded  in  the  county  recorder's 
office  when  Vaca  made  the  second  deed  to 
.McDaniel. 

When  the  action  w.is  couuneiued  I'-llis  was 
in  ])ossessi(>n  of  one  hundred  and  eighty  acres 
of  the  land  and  the  Lougs  were  in  possession 
of  the  remaining  three  hundred  ;in<l  twenty 
acres,  the  entire  tract  stied  for  being  five 
hundred  acres. 

The  Longs  employed  John  Ciirrey.  one  of 
the  ablest  lawyers  in  California,  and  afterwards 
.>ne  of  its  most  eminent  jurists,  to  defejid  the 
suit.  Prior  to  i8()o  the  case  had  been  twice 
tried,  twice  a|)pe:iled  and  twice  reversed  on 
ap|)eal.  When  it  came  on  for  its  next  trial 
Mr.  Wheaton  was  joined  with  Jiid.ite  Currey 
in  defriidiiig  the  stiit.  The  trial  resulted  in  a 
juilymenl    for  the  plaintilT  I'.llis. 

.\fteF  the  trial  and  before  the  case  was  ;ip- 
pealed.  Currey  was  elected  one  of  the  Justices 
of  the  Supreme  Court,  and  from  that  time 
forward  cotild  not.  and  cjid  imt.  take  any 
further  part  in  defeixling  the  suit,  which  was 
left    entirely   in   the   hands  of   Mr.    Wheaton. 

riie  main  (piestion  of  fact  to  he  determined 
in   the  case  was  wliethcr  or  not   Mizner  ami 


962 


History  of  the  Bench  and  Bar  of  California. 


1^^ 


McDaniel  had  notice  of  Vaca's  deed  to  the 
Pattens  and  Lyon  when  they  took  their  sub- 
seqncnt  conveyance  from  \'aca.  If  thej-  had 
such  notice  their  own  deed  would  be  void,  but 
if  they  did  not  have  such  notice,  they  could 
hold  the  land  as  innocent  purchasers  for 
a  valuable  consideration,  as  Vaca's  deed  to 
Pattens  and  Lyon  had  not  been  recorded  in 
the  county  recorder's  office  when  Vaca  made 
his  second  deed  to  Mizner  and  McDaniel.  The 
lower  court  found  as  a  fact,  and  decided,  that 
Mizner  and  McDaniel  did  not  have  notice  of 
the  said  deed  to  Pattens  and  Lyon,  and  entered 
judgment  for  the  plaintiff  Ellis  for  the  pos- 
session of  the  land,  together  with  a  judgment 
for  five  thousand  dollars  damages  for  rents 
and  profits  for  the  adverse  use  of  the  land  by 
the   defendants. 

In  this  state  of  affairs  Mr.  Wheaton  made  up 
a  statement  and  made  a  motion  for  a  new 
trial,  which  motion  the  court  denied.  Mr. 
Wheaton  then  appealed  to  the  Supreme  Court 
from  the  judgment,  and  also  from  the  order 
made  denj'ing  his  motion   for  a  new  trial. 

On  the  issue  of  fact  as  to  whether  or  not 
Mizner  and  McDaniel  had  notice  of  Vaca's 
prior  conveyance  the  evidence  was  conflicting, 
and  the  Supreme  Court  refused  to  reverse  the 
judgment  on  that  ground.  Mr.  Wheaton  had. 
however,  made  the  point  that  the  lower  court 
had  assessed  damages  for  the  use  and  occupa- 
tion by  the  defendants  for  all  of  the  land 
sued  for,  while  the  plaintiff  had  himself  had 
possession  of  one  hundred  and  eighty  acres 
of  the  land,  and  that  the  defendants  ought  not 
to  be  compelled  to  pay  the  plaintiff'  for  the 
use  of  the  land  which  he  had  himself  had  the 
entire  use  of,  and  which  the  defendants  had 
not  had  any  use  of.  The  Supreme  Court  took 
Mr.  Wheaton's  view  of  this  point,  and  re- 
versed the  judgment  accordingly,  ordering  the 
case  back  to  the  lower  court  for  a  new  trial. 

It  was  at  this  point  that  there  began  a  close 
and  exciting  struggle  that  made  a  draft  upon 
the  best  intelligence  and  keenest  wits  of  the 
attorneys   upon  both   sides  of  the  case. 

While  it  was  an  important  object  for  the  de- 
fendants to  get  rid  of  the  judgment  for  dam- 
ages, the  main  purpose  of  the  contest  was  to 
hold  the  land.  If  the  order  of  the  Supreme  Court 
granting  a  new  trial  could  ])e  maintained  it 
carried  the  whole  case  back  to  the  lower  court 
and  the  defendants  could  make  another  fight 
for  the  ownership  of  the  land.  If,  however, 
the  plaintiff  could  have  his  judgment  for  the 
ownership  of  the  land  affirmed  he  could  well 
afford  to  lose  his  judgment  for  damages. 

The' plaintiff"s  counsel  accordingly  came  into 
the  Supreme  Court  and  asked  the  court  to 
modify  the  judgment  appealed  from  by  strik- 
ing out  of  it  the  entire  damages,  and  then 
affirm  the  judgment  giving  the  land  to  the 
plaintiff.  The  Supreme  Court  was  willing  to 
do  this,  if  the  record  was  in  a  shape  to  make 
it  feasible  to  do  so.  Mr.  Wheaton  opposed 
this  motion  upon  the  ground  that  ejectment 
was  an  action  that  tried  the  right  of  posses- 
sion only:  that  in  ejectment  the  plaintiff  must 
not  only  show  title  in  himself,  but  he  must 
also  show  that  the  defendant  was  in  pos- 
session  when  the   suit   was  commenced,  or  he 


could  not  recover ;  that  the  record  showed 
that  Ellis  was  in  possession  of  about  one  hun- 
dred and  eighty  acres  of  the  land  that  the 
Longs  claimed  to  be  the  owners  of,  and  that 
their  title  could  not  be  litigated  as  to  the 
part  of  the  land  so  in  the  possession  of  the 
plaintiff.  The  Supreme  Court  decided  that  Mr. 
Wheaton's  position  was  in  accordance  with 
the  law  of  ejectment,  and  therefore  refused 
to   grant   the    plaintiff's    motion. 

The  plaintiff's  counsel  then  came  in  and  re- 
peated their  offer  to  have  all  of  the  damages] 
remitted  and  turther  offered  that  the  part  of 
the  land  possessed  by  the  plaintiff  should  be 
released  from  the  judgment,  and  have  the 
judgment  affirmed  for  the  plaintiff  as  to  the 
land  which  the  Longs  had  the  possession  of. 
This  the  Supreme  Court  was  also  willing  to 
do,  but  Mr.  Wheaton  then  presented  the 
further  point  that  there  was  not  a  sufficient 
description  in  the  record  to  make  a  correct 
and  exact  identification  of  the  dividing  line 
that  separated  the  two  tracts  of  land  which 
had  been  held  by  the  respective  parties.  The 
record  was  critically  examined  and  the  Su- 
preme Court  decided  that  Mr.  Wheaton  was 
right  in  this  contention  also.  The  plaintiff's 
counsel  then  came  in  and  asked  to  have  an 
exact  survey  made  by  any  surveyor  which 
the  court  might  appoint,  so  that  the  exact 
description  of  the  two  tracts  of  land  should 
be  definitely  determined,  the  separation  of 
the  two  tracts  made  and  the  plaintiff  have  his 
judgment  affirmed  for  the  tract  held  by  the 
Longs.  To  this  motion  Mr.  Wheaton  re- 
sponded by  challenging  the  jurisdiction  of  the 
Supreme  Court  to  make  the  order.  He  ar- 
gued that  the  Supreme  Court  was  an  aonellate 
court  only,  and  that  it  had  no  right  to  take 
original  testimony  and  decide  a  fact  that  had 
not  been  decided  in  the  lower  court ;  that 
the  exact  location  of  the  dividing  line  between 
the  two  tracts  of  land  had  not  been  decided 
by  the  lower  court,  and  there  was  therefore  no 
decision  of  the  lower  court  upon  the  location 
of  that  dividing  line  for  the  Supreme  Court 
to  act  upon,  either  to  affirm,  reverse  or  modify. 
L'pon  this  proposition  also  the  Supreme  Court 
decided  that  Mr.  Wheaton  was  right,  and 
the  case  was  sent  back  to  the  lower  court  for 
a  new  trial. 

The  case  was  subsequently  twice  retried 
before  juries  in  the  lower  court,  and  on  each 
trial  the  jury  disagreed.  The  litigation  was 
afterwards  compromised  by  the  plaintiff  keep- 
ing the  tract  of  land  which  he  had  in  pos- 
session, and  the  Longs  keeping  the  larger 
tract  of  which  they  were  in  possession.  In 
the  meantitne  the  land  had  risen  in  value  so 
that  the  one  hundred  and  eiehty  acres  which 
fell  to  Mr.  Ellis  upon  the  compromise  was 
worlh  many  times  as  much  as  the  entire  five 
hundred  acres  were  worth  when  tlie  litigation 
commenced.  The  land  lies  in  the  heart  of  the 
celebrated  Vaca  Vallev. 

After  Mr.  Wheaton  commenced  his  career 
as  a  patent  lawyer  he  largely  withdrew  from 
his  practice  in  the  State  courts,  although  since 
that  time  there  are  shown  at  intervals  in  the 
reports  of  the  State  Supreme  Court  important 


History  of  the  Bench  and  Bar  of  California. 


963 


causes  in  which  he  made  the  arguments  upon 
one  side  or  the  other  of  each  case. 

It  was  in  the  year  1868,  three  years  after 
his  removal  to  San  Francisco,  that  Mr. 
Wheaton  began  his  active  and  long  career  in 
what  has  since  been  his  chief  line  of  practice. 
His  connection  with  the  great  suit  of  N.  W. 
Spaulding  &  Co.  vs.  Tucker  &  Putnam,  agents 
of  the  American  Saw  Company,  was  an  ex- 
ample of  that  "tide  in  the  affairs  of  men, 
which,  taken  at  the  ffood,  leads  on  to  for- 
tune." 

Nathan  W.  Spaulding,  Assistant  United 
States  Treasurer  at  San  Francisco  from  May 
5,  1881,  to  August  20,  1885,  came  to  Califor- 
nia in  the  year  1851  from  Maine,  where  he 
was  born,  September  24,  1829.  At  a  compara- 
tively early  date  in  his  long  career,  remarka- 
ble for  achievements  in  business  and  inven- 
tion, he  made  the  discovery  of  which  the  liti- 
gation now  to  be  noticed  was  a  product.  It 
was  at  Sacramento  in  1859,  where  he  had  a 
shop  for  the  repair  and  sale  of  saws.  The 
discovery  was  an  improved  method  for  fixing 
teeth  in  circular  saws.  Inserted-tooth  saws 
had  been  known  for  many  years  to  possess 
great  advantages  over  solid  tooth  saws.  Teeth 
made  separate  from  the  saw  plate  could  be 
tempered  and  formed  into  better  shape  for  fast 
and  easy  cutting  than  when  made  out  of  and 
being  a  part  of  the  saw  plate  itself  and  could 
be  replaced  when  damaged.  But  these  and 
other  advantages  of  inserted  tooth  saws  could 
not  be  made  available,  on  account  of  the  ten- 
dency of  the  saw  plate  to  crack  from  the 
corners  of  the  sockets  in  which  the  teeth  were 
inserted.  These  sockets  had  always  had  square 
corners.  Mr.  Spaulding  by  experiment  found 
that  a  blow  from  a  sledge  would  not  crack 
the  saw  plate,  but  that  the  fracture  occurred 
while  the  saw  was  in 'motion,  subjected  to  the 
various  strains,  called  by  experts  the  side 
strain,  the  twisting  strain,  and  the  splitting 
strain.  He  found  by  careful  investigation  that 
the  strain  and  constant  vibration  incident  upon 
the  use  of  the  saw  caused  crystalization  of  the 
metal  at  this  pcnnt,  and.  with  a  pcnverful  glass, 
minute  crystals  and  fractures  could  at  first  be 
observed  which  soon  developed  into  cracks 
that  before  long  ruined  the  saw  plate.  No 
such  defects  proceeded  from  any  otlier  part 
of  the  socket.  The  happy  thought  occurred 
to  the  inventive  mind  in  search  of  ways  and 
means  to  accomplish  ends,  that  if  the  point 
of  difficulty  was  in  all  cases  at  the  angle  of 
the  socket,  what  would  be  the  result  if  there 
were  no  angles?  Numerous  practical  tests  were 
made  to  demonstrate  the  truth  of  the  idea, 
and  the  problem  was  solved.  He  simply  made 
the  corners  of  the  socket  round,  or.  as  Mr. 
Wheaton  expressed  it  in  one  of  his  briefs,  he 
used  circular  lines  in  forming  the  junction 
of  the  base  and  sides  of  the  socket,  or  as 
the  letters-patent  afterward  stated,  he  useii 
circular  lines  for  the  sockets  at  the  base  or 
other  places  therein  where  the  pressure  or 
force  applies.  A  beautiful  effect  was  secured, 
a  great  result  was  accomplished,  no  less  than 
a  perfect  protection  against  the  cracking  of  the 
saw  plate.  A  revolution  was  wrought  in  the 
manufacture  of  lumber.     At  the  trial  of  Spaul- 


mgs  patent  cases  many  of  our  largest  and 
most  practical  nnllmen  testified  to  the  great 
improvement  made  by  Mr.  Spaulding,  which  in 
some  instances  increased  the  output  of  their 
mills  several   hundred  per  cent. 

Mr.  Spaulding's  application  to  the  govern- 
ment for  a  pateiU  was  at  first  rejected.  The 
nature  of  the  invention  was  not  grasped.  But 
when  proof  was  introduced  to  them  showing 
the  great  effect  produced  by  the  use  of  circu- 
lar lines  in  a  saw  socket,  they  looked  deeper. 
A  discovery  of  incalculable  value  was  appar- 
ent. The  letters-patent  applied  for  were  is- 
sued. A  flow  of  gold  came  in  to  the  inveiU<jr 
from  appreciative  millowners.  Tile  Ameri- 
can Saw  Company,  having  its  headquarters  at 
New  York  City,  sent  to  the  Pacific  Coast  a 
large  lot  of  saws  equipped  according  to  the 
new  method,  and  proceeded  to  undersell  the 
patentee  in  this  market,  through  its  agents, 
William  F.  Tucker  and  S.  O.  Putnam.  Mr. 
Spaulding  sued  these  parties  in  their  individual 
capacity,  but  they  were  the  agents  of  the 
American  Saw  Company,  and  that  company 
made  their  fight  in  this  great  suit. 

There  never  has  been  in  our  courts  a  scries 
of  lawsuits  more  persistently  or  bitterly  con- 
tested: unlimited  capital  and  talent  and  every- 
thing that  either  could  control  to  break  down 
Spaulding's  patent  were  arrtiyed  on  one  side, 
while  the  other  was  nerved  by  the  conscious- 
ness of  right,  and  a  bulldog  determination  to 
su.stain  a  principle,  on  the  part  of  both  client 
and  counsel. 

It  is  a  curious  fact  that  Mr.  Spaulding  had 
been  turned  away  by  se-veral  of  the  most  em- 
inent lawyers,  to  whom  he  had  successively 
.'ipplied  to  take  his  case,  beft)rc  a  friend  directed 
him  to  Mr.  Wheaton. 

In  this  suit  Mr.  Wheaton  had  Hall  McAllis- 
ter for  his  adversary.  George  Gifford  of  Xew 
York  City,  since  deceased,  but  then  probal)ly 
holding  the  first  place  at  the  American  bar  in 
|)atent  cases,  was  also  employed  for  the  de- 
fense, and  devoted  himself  to  the  examination 
of  witnesses  before  masters  in  chancery  in  e.ist- 
ern  cities.  In  this  way  was  the  evidence  taken, 
the  suit  being  in  e<iuity  in  the  I'nited  States 
Circuit  Court  at  San  I-Vancisco.  The  question 
was,  had  there  been  a  public  use  of  Mr.  Spauld- 
ing's discovery  before?  In  gathering  evidence 
and  attending  examinations  in  the  Fast.  Mr. 
Wheaton  exi)ended  $5,000  of  his  client's  money 
in  a  period  of  six  weeks.  As  will  be  granted, 
it  was  an  arduous  and  costly  controversy.  In 
the  cloud  of  witnesses  for  the  defense  was 
R.  M.  lloe.  ()atentee  of  the  Hoe  printing  press, 
lie  testified  that  R.  M.  Hoe  &  C«>.  li.id  made 
use-  of  the  s.iiiie  thing  on  which  Mr.  Spauld- 
ing had  received  letters-patent,  in  the  year 
i8.?7.  This  and  all  like  evidence  was  really 
destroyed  by  Mr.  Wheaton's  cross-examination. 
When  the  evidence  was  all  in  an<l  reviewed, 
he  w.is  enabled  to  argue  logically  that  rounding 
the  junction  of  the  base  and  sides  of  the 
sockets  was  an  original  conception  of  his 
client's,  and  was  a  very  great  and  valualile  im 
|)rovement  upon  the  saw.  .ind  p.it<iUable.  It 
c.iine  within  that  class  of  improvements  which 
are  called  combinations,  the  form  being  one 
of  the   elements   of  the   combination.      He  ar- 


964 


History  of  the  Bench  and  Bar  of  California. 


gucd  his  side  (if  ilic  case  alnne,  and  sliowed 
I  hat  where  form  is  ein]il(oycd  lo  produce  a  new 
effect,  it  is  as  much  a  sul)ject  of  a  patent  as 
any  other  device. 

The  result  of  this  suit  was  a  judgment  in 
favor  of  Mr.  Spaulding,  fully  sustaining  his 
patent. 

Apart  from  his  legal  career.  Mr.  W'heaton 
has  a  long  record  as  an  inventor.  His  crown- 
ing work  in  this  field  was  rewarded  with  a 
patent  in  1892.  In  1890  he  was  attorney  in  a 
notable  suit  brought  by  Norton  Brothers  of 
Chicago  against  San  Francisco  people  for  in- 
fringement of  the  patent  for  a  can-heading 
machine,  and  his  study  of  the  case  led  him  to 
the  invention  of  a  machine  far  superior  to 
any  then  in  use.  Its  capacity  was  four  times 
that  of  the  Norton  machine.  It  is  used  for 
putting  the  tops  and  bottoms  of  tin  cans  upon 
the  can  bodies.  It  does  no  other  part  of  the 
work  of  making  cans.  It  puts  the  two  heads 
on  10.000  cans  in  one  hour.  The  great  oyster 
canning  house  of  A.  Booth  &  Co.,  of  Balti- 
more, early  saw  the  superiority  of  this  ma- 
chine, and  purchased  an  interest  in  the  patent. 
Mr.  Wheaton  realized  $20,000  for  his  patent. 
The  machines  have  been  in  operation  in  Cali- 
fornia canning  factories  since  1894.  An  editorial 
writer  of  San  Francisco,  after  examining  this 
invention  in  1897,  observed :  "The  ingenuity 
which  conceived  and  developed  the  new  and 
original  plan  of  the  machine,  as  well  as  that 
which  invented  and  applied  the  devices  and 
details  of  the  mechanism  which  were  necessary 
to  the  construction  of  the  completed  machine, 
and  the  perfect  and  rapid  operation  of  the 
machine  while  doing  its  work,  all  unite  to 
place  it  among  the  numerous  ingenious  labor- 
saving  inventions  that  have  been  produced  in 
California,  and  by  Californians.  and  which  are 
creditable  to  our  great  State,  and  of  which 
evf^ry  Californian  must  feel  a  thrill  of  pride." 

Mr.  Wheaton  was  united  in  marriage  with 
Miss  Carrie  C.  Webster,  at  Suisun.  December 
24.  1862.  She  died  in  July.  1873.  On  Sep- 
tember 21.  1876,  Mr.  Wheaton  mtirried  Miss 
Dora  Ferine,  a  lady  of  rare  musical  and  artis- 
tic taste,  also  of  Suisun.  This  lady  lives,  and 
thev  have  two  daughters.  A  son  by  the  first 
wife  is  now  a  young  man  of  twenty-six  years, 
and  in  business  in  San  Francisco.  He  has 
developed  a  strnntr  and  elevated  character,  and 
is  of  a  mechanical  turn  of  mind.  .'\  comfort- 
able home  on  the  Sacramento-Street  hill,  has 
been  the  family  dwelling  since  the  year  1868. 
Mr.  Wheaton  has  a  moderate  fortune.  His  law 
offices  are  spacious  and  elegantly  furnished,  his 
library  being  one  of  the  largest  and  most  se- 
lect. He  is  still  in  active  practice,  in  partner- 
ship with  Isaac  M.  Kalloch.  son  of  the  late 
Isaac  S.  Kalloch,  once  mayor  of  San  Fran- 
cisco.   

C.  M.  WHEELER. 
This  gentleman  is  the  son  of  the  late  E. 
D.  Wheeler,  who  was  a  California  pioneer,  and 
"ho  was  one  of  the  very  al)lest  legislators  and 
lawyers  our  State  has  known,  having  been  in 
the  State  senate  from  Yuba  county  in  1859-60. 
and  manv  years  afterwards  a  distinguished 
District   Judge   in    San    Francisco. 


Mr.  Wheeler  was  born  at  Marysville.  Cali- 
fornia, while  his  father  was  in  large  practice 
there.  October  27,  1859.  His  mother  was  a 
daughter  of  General  George  Rowe,  also  a 
prominent  lawyer  of  ]\Iarysville,  and  a  Califor- 
nia pioneer.  Mr.  Wheeler  received  his  early 
education  in  this  State,  but  in  1875  was  sent 
East  to  school,  and  remained  there  until  1878. 
Returning,  he  attended  Santa  Clara  College, 
and  Hastings  College  of  the  Law.  H.e  was 
graduated  from  the  law  college  in  May,  188.^. 
He  began   the  practice   in   San    Francisco,  but 


G.  WILEY  WELLS. 


very  soon  removed  to  Ukiah,  where  he  was 
in  partnership  with  Hon.  Thomas  L.  Caroth- 
ers  for  two  years.  He  then  located  perma- 
nently at  Eureka.  During  the  fourteen  years 
since  passed  he  has  been  in  active  practice  in 
that  city,  and  has  been'  engaged  on  one  side 
or  the  other  in  most  of  the  important  cases 
that   have  arisen   in   Humboldt   county. 

In  April,  1892.  Mr.  Wheeler  was  married  to 
Ida  Anna  Roberts,  daughter  of  C.  F.  Roberts, 
the  present  treasurer  of  Humboldt  county. 


Col.  Guilford  Wiley  Wells  was  born  at 
Conesus  Centre,  New  York,  February  14,  1840, 
the  youngest  of  tnree  children  of  Isaac  Tiche- 
nor  Wells  and  Charity  Kenyon.  The  Wells 
family  can  be  traced  back  to  the  time  of  Wil- 
liam the  Conqueror  in  England,  and  to  the  lat- 
ter part  of  the  sixteenth  century  in  .America, 
and  the  line  is  lit  up  with  many  illustrious 
names. 

Colonel  Wells  was  educated  at  Genesee  Wes- 
leyan  Seminary  and  College,  Lima,  New  York. 
He  was  there  when  the  Civil  War  broke  out, 
and,  at  the  first  call  for  volunteers,  enlisted 
in  the  First  New  York  Dragoons.  He  fought 
nearly  through  the  war,  taking  part  in  thirty- 
seven  battles,  and  rising  by  his  gallantry  in 
action  from  the  ranks  to  brevet  lieutenant- 
colonel.  He  was  twice  wounded,  the  last  time 
in  February,  1865,  his  left  arm  being  perma- 
nently disabled,  and  he  was  discharged  from 
the    service,    in    consequence,    in    that    month. 


Charles  E.    Wilson 


History  of  the  Bench  and  Bar  of  California. 


90 


He  entered  the  law  department  of  Colmnbian 
College  at  Washington,  D.  C,  and  was  grad- 
uated therefrom  in  1867.  Removing  to  Holly- 
Springs,  Mississippi,  in  December,  1869,  he 
began  the  practice  of  law,  and  was  following 
the  same  when,  in  June,  1870,  President  Grant 
appointed  him  United  States  attornej-  for  the 
Northern  district  of  that  state.  At  the  end  of 
his  term  he  was  again  appointed  to  the  office. 
In  the  middle  of  his  second  term,  1876,  he 
was  elected,  as  a  Republican,  to  the  national 
house  of  representatives,  by  7,000  majoritj', 
from  the  Second  ^lississippi  district. 

In  June,  1877,  President  Hayes  tendered  to 
Colonel  Wells  the  office  of  consul-general  at 
Shanghai,  China,  which  he  accepted.  He  as- 
sumed charge  of  the  consulate,  September  13, 
1877.  He  resigned  the  office  on  the  loth  of 
January  following.  He  twice  refused  the  ap- 
pointment of  consul  to  Hong  Kong.  He  set- 
tled at  Los  ^-vngeles  in  1879,  and  formed  a  law 
partnership  with  A.  Brunson,  under  the  firm 
name  of  Brunson  &  Wells.  Mr.  Bradner  W. 
Lee,  his  nephew,  was  admitted  to  the  firm  in 
the  following  year.  This  association  lasted 
until  Mr.  Brunson  went  on  the  bench  of  the 
Superior  Court  in  January,  1885.  Colonel 
Wells  then  became  head  of  the  law  firm  of 
Wells,  Guthrie  &  Lee.  After  a  busy  and  pros- 
perous period  at  the  Los  Angeles  bar,  of  some 
fifteen  years.  Colonel  Wells  retired  from  prac- 
tice, and  removed  his  residence  to  Santa  Mon- 
ica. His  splendid  law  library  of  6,000  volumes 
is  in  the  office  of  the  prominent  Los  Angeles 
law  firm  of  Works  &  Lee. 

The  Colonel  married  Miss  Katy  C.  Fox 
at  Avoca,  N.  Y.,  December  22,  1866.  There 
is   no   issue   living. 


CHARLES  E.  WILSON. 


This  gentleman  has  been  in  the  stir  and  push 
of  practice  in  the  great  bar  of  our  metropolis 
for  over  thirty  years,  without  interruption. 
Aside  from  his  long  and  steady  work  in  civil 
cases  generally,  he  has  become  one  of  the 
best-known  men  in  the  profession  by  reason 
of  his  conduct  of  important  business  interests, 
notably  those  of  large  lumber  companies,  and 
in  connection  with  extensive  real  estate  litiga- 
tion. 

We  could  not  expect  a  man  to  fail  in  any 
calling,  who  had  been  reared  with  discretion 
on  a  Maine  farm  and  fought  willi  credit 
through  a  great  war.  The  pages  of  this  His- 
tory will  show  how-  many  lawyers  who  have 
won  reputation  and  fortune  in  California,  had 
a  like  tutelage,  and  came  to  this  peaceful  shore 
from    "the    red    baptism    of   the    battlefield." 

Mr.  Wilson  was  born  at  Bradford,  Maine, 
on  September  11,  18.39.  H*-'  comes  from  one 
of  the  oldest  American  families,  of  English 
ancestry.  His  father.  Miles  Wilson,  was  re- 
markable for  his  usefid  and  exemplary  life  and 
for  its  long  span  of  years.  Miles  Wilson  was 
an  officer  in  the  state  militia  of  Maine,  com- 
missioned lieutenant  by  Governor  Enoch  Lin- 
coln, in  1828,  and  served  a  term  in  the  legisla- 
ture. He  came  to  California  long  before  his 
son.  Charles  E. — as  early  as   1850.     He  spent 


two  years  here,  mining  for  a  time  in  Calaveras 
county.  Returning  to  Bradford.  Maine,  he 
lived  to  the  age  of  ninetv-three  years,  his 
mind  in  full  vigor  to  the  end. 

Thomas  K.  Wilson,  the  eldest  son  of  Miles, 
came  to  California  in  i860,  settling  in  Cala- 
veras county,  where  he  practiced  law  until 
1870.  He  then  removed  to  San  Francisco. 
He  attained  prominence  in  the  profession  in 
that  city,  and  was  elected  one  of  the  Judges 
of  the  Supreme  Court  at  the  first  election  un- 
der the  present  constitution  (1879).  He  was 
re-elected  in  1884.  .serving  from  January,  1880. 
to  May  16,  1889.  when  he  resigned  and  re- 
moved to  Los  Angeles  city  to  engage  in  law 
practice.     He  died  there  in  October.   1894. 

Charles  E.  Wilson,  like  so  many  of  whom 
this  History  treats,  was  raised  on  his  father's 
farm,  doing  his  proper  share  of  farm  work 
and  attending  the  district  school  in  winter. 
He  later  attended  the  high  school  and  acad- 
emies, and  acquired  a  good  education.  He  then 
followed  teaching  school  for  .several  years,  and 
was  preparing  himself  at  the  same  time  for 
college,  when  the  Civil  War  broke  out.  Join- 
ing the  Second  Maine  Cavalry,  he  served  from 
November,  1863.  until  the  close  of  the  war, 
being  mustered  out  in  December,  1865.  En- 
listing as  a  private,  he  was  promoted  to  quar- 
terma.ster-sergeant.  to  sergeant-major,  and  to 
first  lieutenant.  With  his  regiment  he  took 
part  in  the  Red  River  Expedition,  and  in  the 
capture  of  Mobile. 

The  war  ended.  Mr.  Wilson  entered  the  law 
office  of  Peters  &  Wilson,  in  Bangor.  Maine,  as 
a  student.  He  remained  with  that  firm  nearly 
three  years,  at  the  end  of  which  time  he  was 
admitted  to  practice  by  the  Supreme  Court  of 
Maine.  He  immediately  came  to  California, 
arriving  at  Stockton  in  the  latter  part  of  No- 
vember. 1867.  He  remained  there,  in  the  office 
of  E.  S.  Pillsbury,  Es(|.,  now  a  prominent  law- 
yer of  San  Francisco,  until  July,  i8<)8.  when 
he    located    in    San    Francisco. 

Regarding  the  law  as  "a  jealous  mistress." 
and  believing  that  those  who  entrust  their 
business  affairs  to  a  lawyer  are  entitled  to  his 
best  efforts  in  their  behalf.  Mr.  Wilson  has  de- 
voted his  entire  time  to  his  profession,  and 
has  persistently  kept  .iloof  from  politics  and 
all  other  "entangling  .illiances."  He  has,  how- 
ever, taken  a  deej)  interest  in  the  Grand  .Xrmy 
of  the  Republic,  serving  that  i)rgani/ati<in  as 
commander  of  the  DepartrneiU  of  California 
and  Nevada  in  i8()5.  During  his  term  of  ofTice 
he  inaugurated  tlie  custom  of  reading  Lin- 
coln's immortal  Gettysburg  address,  as  n  part 
of  Memorial  Day  exercises.  .'\l  his  suggestion. 
this  custom  was  adopted  by  the  National  En- 
c.'iinpment  of  i8<y>.  as  a  permanent  feature  of 
all  Memorial  Day  exercises  coiulncted  by  the 
Grand  .\rmy  of  the  Republic.  He  has  l)ecn 
a  iiu'inber  of  George  \\.  Thomas  Post  since 
its  organization,  and  is  past  conuuan<ler  of  that 
post. 

Mr.  Wilson  acquired  a  practical  knowledge 
of  the  lumber  business — a  great  industry  in 
his  native  state — in  his  boyhood  days.  This 
has  served  him  to  good  purpose  on  the  Pa- 
cific Coast,  many  heavy  lumber  cnmpanies  hav- 
ing entrusted  their  legal  affair-;  to  him.     He  is 


968 


History  of  the  Bench  and  Bar  of  California. 


careful  and  painstaking  in  Ills  practice,  and 
capable  of  long-continued  and  hard  work.  He 
is  watchful  and  judicious  in.  trying  his  cases, 
and  is  an  easy  and  forcible  speaker. 

Mr.  Wilson  was  united  in  marriage,  on  July 
I.  1869,  with  Miss  Carrie  A.  Watson  of  San 
Francisco,  who  died  in  August,  1870.  He  has 
since  remained  single.  Mr.  Fred  M.  Wilson, 
of  the  San  Francisco  bar,  is  his  son. 


H.    R.    WILEY. 


Mr.  Wiley  was  born  on  a  farm  near  the 
city  of  Oshkosh,  Wisconsin,  on  April  5th, 
1855.  His  father  and  grandfather  on  the 
father's  side,  were  natives  of  the  State  of  New 
York.  His  mother  was  born  in  the  State  of 
Pennsylvania  and  was  of  English-German 
descent.  His  grandfather  on  the  father's  side 
served    in    the    War    of    1812. 

In  1865,  at  the  age  of  ten,  our  subject,  with 
his  parents  and  others,  started  across  the  plains 
for  California.  The  Indians  were  still  war- 
like, and  cut  off  and  murdered  a  part  of  his 
company,    and    carried    one    woman    into    cap- 


tivity. The  party  reached  Salt  Lake  City 
late  in  autumn,  and  wintered  there,  arriving 
in   California   in    1866. 

Young  Wiley's  father  bought  a  tract  of  l.ind 
in  Southern  California  in  what  is  now  Ventura 
countv  but  was  then  the  home  of  the 
"greaser,"  the  wild  mustang,  and  the  grizzly 
bear. 

The  boy  had  made  good  nro.^ress  in  the  pub- 
lic schools  of  Oshkosh,  but  a^'ter  starting  for 
California  his  studies  were  pursued  under 
many  difficulties — sometimes  in  school,  some- 
times at  home.  He  left  the  family  dwelling  at 
the  age  of  seventeen  and  began  life  for  him- 
self as  salesman  in  a  store  in  San  Francisco. 
At  nineteen  he  joined  his  br  ithers  in  mer- 
cantile business  at  Santa  I'aula.  Ventura 
county,  but  soon  gave  up  all  mtcrest  in  the 
business  in  order  to  pursue  hi;  studies,  and 
entered  Christian  College,  at  Santa  Rosa,  a 
school  conducted  under  church  auspices.  At 
the  beginning  of  the  sophomore  year  he  was 
regularly  installed  as  tutor  by  the  board  of 
regents.     Thus  teaching  and  studying  he  com- 


pleted the  course  in  three  years  and  received 
the  degree  of  bachelor  of  arts. 

In  1877.  while  yet  a  very  young  man,  Mr. 
Wiley  opened  an  academy  at  Santa  Ana.  then 
in  Los  Angeles  county,  but  soon  gave  up  that 
work  on  account  of  poor  health.  A  year  later 
he  began  teaching  the  public  schools  of  the 
same  countv.  Afterwards  he  taught  for  two 
years  in  Napa  county  and  went  from  there  to 
Shasta  countv.  where  he  became  principal  of 
the  Redding  public  schools.  He  delivered  the 
funeral  oration  of  President  Jas.  A.  Garfield, 
at   the   exercises   held    in    that   place. 

At  the  end  of  that  school  term  he  opened  a 
normal  institute  for  the  training  of  young 
teachers,  and  continued  normal  work  until 
the  State  normal  school  was  established  at 
Chico.  At  times  he  was  assisted  in  lectures 
and  practical  schoolroom  work  by  Hon.  Fred 
Campbell,  superintendent  of  public  instruc- 
tion, and  other  prominent  educators  of  the 
State.  The  Educational  Journal  took  occa- 
sion to  say :  "To  Prof.  H.  R.  Wiley,  prin- 
cipal of  the  Redding  schools,  belongs  the 
credit  of  holding  the  first  normal  institute 
in  California." 

While  engaged  in  this  work,  he  delivered 
many  evening  lectures,  of  a  popular  kind,  be- 
fore the  members  of  the  institute,  and  also 
before  the  regular  annual  teachers'  institute. 
He  delivered  an  address  before  the  American 
Horticultural  Society,  when  it  met  on  this 
coast,  which  Ridpath,  the  historian,  who  was 
present  on  that  occasion,  in  his  published 
account  of  his  California  trip,  was  pleased  to 
describe  as  "eloquence  and  good  sense  in  rare 
combination." 

During  these  years  of  teaching  Professor 
Wiley  had  been  reading  law  in  accordance  with 
an  early  formed  plan  to  enter  the  legal  pro- 
fession. 

While  yet  a  teacher  and  at  the  urgent  re- 
quest of  a  lawyer  friend  who  desired  his  as- 
sistance in  a  murder  trial,  he  was  admitted 
upon  examination,  to  the  Shasta  county  bar, 
and  took  part  in  that  trial,  making  an  ad- 
dress to  the  jury.  He  subsequently  passed  a 
Supreme  Court  examination,  and.  still  later, 
received  the  degree  of  LL.  B.  from  Hastings 
College  of  the  Law.  Mr.  Wiley  began  regular 
practice  at  Reddinsr  in  1886.  fie  removed  to 
San  Francisco  in  1802. 

In  connection  with  his  law  practice  he  is 
now  lecturer  on  jurisprudence  in  two  of  the 
colleges  of  the  l^niversity  of  California. 

As  a  side  and  more  profitable  enterprise  he  is 
engaged  in  mining  in  the  State  of  Sonora, 
Mexico. 

On  December  26th,  1885.  Mr.  Wiley  was 
married  to  Miss  Villa  Chappell,  daughter  of 
the  late  Hon.  J.  N.  Chappell.  of  Redding. 
His  family  now  consists  of  his  wife  and  two 
children,  a  girl  and  a  boy,  and  his  home  is  in 
Berkeley. 

F.   R.   WILLIS. 

I''rank  R.  Willis  was  born  at  North  .\dams, 
Mas,sachusetts,  August  17.  1855,  and  two  years 
thereafter  emigrated  with  his  parents  to  Linn 
coimt\'.    Iowa.      L'nlil    he    reached    the    age   of 


I 


History  of  flic  Bench  and  Bar  of  California. 


96») 


sixteen  years  he  resided  on  a  farm  with  his 
parents.  He  then  left  home  to  commence  the 
battle  of  life,  and  has  successfully  carried  it 
on  to  the  present  time.  He  worked  during 
vacation  time  in  order  to  earn  money  with 
which  to  support  himself  and  pay  tuition.  After 
attending  college  for  two  years  he  entered 
the  Iowa  State  Normal  School  at  Cedar  Falls. 
Iowa,  graduating  in  June,  1879.  He  then 
taught  school  for  one  year  in  Minnesota.  He 
next  entered  the  law  department  of  the  Iowa 
State  University,  and  was  duly  graduated  with 
honors  in  June.  i8qi.  Removing  to  Aurelia, 
Iowa,  he  was  elected  successively  city  attorney 
and  mayor  of  that  town,  filling  those  positions 
creditably  to  himself,  until  he  resigned  in  De- 
cember, 1883.  In  that  month  he  settled  at 
Los  Angeles,  California,  where  he  has  been 
ever  since,  m  tne  active  practice  of  law.  From 
1886  to  1888  Mr.   Willis  was  attorncv  for  the 


public  administrator  of  Los  Angeles  county. 
and  in  1894  he  was  appointed  deputy  district 
attorney,  which  position  he  has  held  up  to  tht 
present  time.  In  criminal  and  probate  plead- 
ing and  practice  Mr.  Willis  stands  very  higli 
at  the  Los  Angeles  bar. 

In  politics  Mr.  Willis  is  a  Republican,  and 
for  the  past  twelve  years  his  political  work  has 
materially  assisted  his  party  in  the  State, 
county  and  city  elections. 

He  is  also  an  active  member  of  the  Masonic 
fraternity  in  all  its  branches,  as  well  as  ;i 
member    of   many    other    fraternal    societies. 

His  great  grandfather  on  the  paternal  side 
was  Major  Daniel  Willis  Coleman  Moss,  Rev- 
olutionary War.  He  is  descended  on  his 
mother's  side  from  Perigrine  White,  the  first 
white  child  born  in  New  England. 


C.   N.  WILSOX. 

Christopher  N.  Wilson  was  born  in  the  town 
of  Gustaviis.  Tnunbull  county,  Ohio,  January 
ID,  1830.  His  early  education  was  obtained  in 
Quaker  schools  at  Smitlifield  and  SomertcMi, 
Ohio.     Later,   he   was   a   student   at   Alleghany 


Colllcgc,  Meadville,  Pennsylvania,  and  at  that 
city  he  commenced  the  study  of  law  in  the 
office  of  William  R.  Scott.  After  the  com- 
mencement of  the  War  of  the  Rebellion  he  was 
offered  and  accepted  an  appointment  in  the 
treasury  department,  Washington,  I).  C.  He 
subsequently  entered  the  law  department  of  Co- 
lumbian University,  and  was  graduated  in  the 
class  of  i86g.  He  was  admitted  to  practice  in 
the  Supreme  Court  of  the  District  of  Columbia 
in  the  same  year.  In  the  year  following  he 
started  for  the  State  of  California,  and  set- 
tled at  Los  Angeles  city,  where  he  has  been 
in  active  practice  continuously  for  more  than 
thirty  years,  having  been  admitted  to  the  bar 
of  all  the  courts  in  this  State  and  in  the  de- 
partments at   Washington,   D.   C 

Mr.  Wilson  has  always  been  a  friend  of  the 
American  Indians,  and  has  fought  their  battles 
in  the  courts  of  the  country,  and  in  the  de- 
partments at  Washington.  He  has  been  deeply 
interested  in  that  race  since  he  came  in  con- 
tact with  it  in  the  fifties,  when  he  was  engaged 
in  making  surveys  in  the  Crow  River  country, 
in   Minnesota. 

He  is  a  member  of  the  National  Guar<l  of 
California.  He  was  commissioned  Judge-.\d- 
vocate,  with  the  rank  of  major,  on  General 
Banning's  staff,  in  1872,  was  one  of  the  or- 
ganizers of  the  Eagle  Corps  in  1881,  and  later 
was  commissary  of  the  Seventh  Regiment,  N. 
G.  C.  He  belongs  to  the  Masonic  order,  and 
is  a  low  church  Episcopalian.  In  politics,  he 
is  a  Native  American,  and  in  18H6  was  the 
candidate  of  that  party  for  secretary  of  state 
of  the  State  of  California.  He  was  a  dele- 
gate to  the  National  .American  convention  that 
met  at  Washington  City,  in  August,  1888,  and 
has  been  for  many  years  a  member  of  the 
State  central  committee  of  his  party. 


PERCY  R.  WILSON. 


Percy  R.  Wilson  was  Ixirn  February  20, 
1855,  at  Athens,  Ohio.  His  father.  Horace 
Wilson,  was  a  prominent  lawyer  of  central 
Ohio  for  many  years.  Mr.  Wilson's  early  ed- 
ucation was  received  at  Columbus,  Ohio,  in 
the  pul)lic  schools.  He  was  graduated  from 
the  literary  dei);irtment  of  Michigan  Univer- 
sity, at  Ann  .Vrbor,  at  the  age  of  twenty,  in 
1875,  being  the  youngest  man  in  his  class. 
He  studied  law  with  his  father,  and  at  the  law 
school  of  Michigan  I'niversity,  and  was  ad- 
mitted to  the  bar  at  the  ai^e  of  twenty-one. 
He  then  went  abroad  and  studied  at  Leipzig 
l^iiversity  f<ir  three  years.  In  1880  he  began 
the  active  '^raciice  of  law  with  his  father,  at 
Columbus,  Ohio.  Mr.  Wilson  came  to  Cali- 
fornia in  November,  1882.  He  re>;nmcd  active 
practice  in  Los  .'\ngeles  in  1SH5.  and  has  fol- 
lowed it  there  ever  since.  He  formed  a  part- 
nershij)  with  Hon.  R.  N.  HuIIa  in  1S87.  The 
firm  of  Wilson  &  Bulla  was  dissolved  in 
i()00,  Mr.  HuIIa  then  retiring  from  active  prac- 
lice. 

.Mr.  Wilson  was  married  in  iSSo,  His  fam- 
ily consists  of  his  wife  and  funr  children,  two 
boys  and  two  girls.  His  practice  has  been 
lartrely  in  the  lines  <if  corporation  and  com- 
mercial   law 


970 


History  of  the  Bench  and  Bar  of  California. 


C.  L.  WITTEN. 


Mr.  Witten  was  born  in  i860,  in  Contra 
Costa  county.  California,  and  remained  there 
until  removing  to  San  Jose,  in  1883.  to  attend 
the  University  of  the   Pacific.     Shortly  there- 


after lie  entered  the  law  office  of  S.  F.  Leib. 
where  he  read  law,  taking  also  a  course  of 
law  lectures  at  the  university.  He  was  ad- 
mitted to  practice  in  November.  1885.  and  re- 
mained in  Mr.  Leib's  office  a  general  practi- 
tioner until  1889,  when  he  went  into  the  dis- 
trict attorney's  office,  as  chief  deputy,  under 
D.  W.  Burchard,  devoting  his  entire  time  to 
criminal  practice.  During  his  term  of  office 
he  assisted  in  prosecuting  a  number  of  mur- 
der cases,  and  helped  his  principal  in  making 
a  record,  to  the  effect  "that  no  guilty  man 
escaped."  After  leaving  the  district  attor- 
ney's office  he  engaged  in  general  practice, 
handling  many  large  estates  and  defending 
some  important  criminal  cases,  the  last  being 
the  case  of  John  A.  Mathews,  charged  with 
murder.  He  is  a  member  of  both  the  Ma- 
sonic fraternity  and  Odd  Fellows,  and  has 
served  as  president  of  the  board  of  free  li- 
brary trustees. 

Mr.  Witten  was  the  first  president  of  the 
San  Jose  Club,  which  at  one  time  comprised 
all  the  youneer  members  of  the  San  Jose  bar. 
He  was  also  a  charter  member  and  president 
of  the  Bachelors'  Club,  which  flourished  in  the 
Garden  City  until  marriage  caused  its  exist- 
ence to  cease.  Mr.  Witten  renounced  his 
own  allegiance  by  reason  of  his  marriage,  in 
189J.  As  a  lawyer,  he  is  careful,  thorough. 
tenacious  and  conscientious,  and  has  met  with 
deserved  success  since  his  admission  to  the 
bar. 

Located  in  spacious  offices,  with  a  fine  work- 
ing library,  his  time  is  now  mostly  taken  up 
with  office  practice,  with  the  occasional  varia- 
tion of  a  trial  in  court. 


C.  C.  WRIGHT. 

C.  C.  Wright,  author  of  the  "Wright  Act" 
of  March,  1887,  relating  to  the  subject  of  ir- 
rigation, was  born  on  a  farm  near  the  village 
of  Glasgow,  in  Jefferson  county.  Iowa,  on  the 
29th  of  June.  1849.  He  has  a  long  American 
ancestry.  His  father,  a  native  of  Kentucky, 
and  his  mother,  of  Tennessee,  settled,  after 
their  marriage,  in  Iowa,  in  1836.  There  they 
lived,  and  cultivated  lands  acquired  from  the 
United  States  government,  until  their  deaths. 

C.  C.  Wright  attended  the  common  schools 
in  boyhood,  and,  in  June.  1872,  was  graduated 
from  the  Iowa  Wesleyan  University,  at  Mount 
Pleasant.  He  served  as  local  reporter  on  the 
Burlington  Hazvkcyc  for  a  few  months,  but 
the  calling  was  not  congenial  to  him.  and  he 
took  up  the  study  of  law  at  Bloomfield.  Iowa, 
in  the  office  of  e.x-Judge  H.  H.  Trimble.  The 
latter  gentleman  is  still  at  the  bar,  continuing 
a  distinguished  career.  He  was  the  attorney 
for  the  contesting  brother  in  the  great  Davis 
will  case,  in  Alontana.  a  few  years  ago,  and  is 
now  chief  counsel  of  the  Burlington  &  Mis- 
souri   River   Railroad    Company. 

Mr.  Wright  came  to  California  in  October, 
1873.  He  went  to  La  Grange,  in  Stanislaus 
county,  and  taught  school  for  two  years.  He 
kept  readinof  law  during  this  period.  Remov- 
ing to  Modesto,  the  county  seat,  he  was  first 
admitted  to  the  bar  there^  in  the  old  District 
Court,  in  April.  1875.  About  six  months  there- 
after  he   was  appointed   district   attorney,   and 


later  was  elected  to  that  office  twice,  as  a 
Democrat,  holding  until  the  beginning  of  the 
year  1881.  In  the  latter  year  he  was  admitted 
to  the  bar  of  the  State  Supreme  Court.  One 
of  the  first  cases  he  was  called  upon  to  prose- 


E.  B.    Young 


History  of  the  Bench  and  Bar  of  California. 


973 


cute  as  district  attorney  was  that  of  Dick  Cul- 
len,  for  murder.  The  accused  was  found 
guilty   and    was    hanged. 

In  the  fall  of  1886  Air.  Wright  was  elected  to 
the  assembly,  as  a  Democrat.  He  served  at  the 
session  of  January-March.  1887.  It  was,  of 
course,  at  that  session  that  he  introduced  the 
"Wright  Act,"  which  was  approved  on  the 
7th  of  March. 

Mr.  Wright  had  a  successful  career  of 
twenty  years  at  the  bar  in  Stanislaus  county. 
Then,  in  August,  i8g5,  he  removed  to  Los 
Angeles,  where  he  is  now  well  established.  He 
has  practiced  there  without  any  partner,  sub- 
stantially. He  made  no  mistake  in  the  change. 
He  has  a  fine  practice,  plenty  of  friends,  for  he 
is  what  is  called  a  whole-souled  man,  as  well 
as  an  able  lawyer,  and  the  climate  is  all  that 
was  ever  claimed  for  it.  He  married  Miss 
Mamie  Swain,  of  Modesto,  at  San  Francisco, 
in  1883.  and  the  issue  of  a  happy  union  is  one 
child,  Alfred,  now  eleven  years  old. 


E.  B.  YOUNG. 


Mr.  Young  was  born  on  July  i.  1852,  in 
Manchester,  England.  He  was  educated  at 
Melbourne,  Victoria,  Australia. 

Coming  to  California  in  the  early  part  of 
1876,  he  located  at  San  Francisco,  and  was 
a  clerk  successively  in  the  offices  of  McAllis- 
ter &  Bergin,  George  A.  Nourse  and  T.  H. 
Rearden,  until  1881. 

He  attended  the  first  class  of  the  Hastings 
College  of  the  Law,  and  was  graduated  from 
that  collep-e  in  1881.  He  was  admitted  to  the 
bar  01  the  Supreme  Court  of  this  State  on 
the  25th  day  of  July.  1881,  and  ever  since  that 
time  has  been  actively  engaged  in  the  practice 
of  his  profession. 

Mr.  Young's  long-existing  partnership  with 
Mr.  Georf^e  F.  Gordon  was  begun  in  the  year 
1882.  This  is  now  one  of  our  oldest  law 
firms,  and  conducts  a  large  business.  Both 
of  its  members  enjo3^ed  the  unqualified  esteem, 
as  men  and  lawyers,  of  the  great  McAllister, 
who  was  in  the  habit  of  calling  on  them  to  at- 
tend to  a  portion  of  his  overflowing  practice. 

Among  the  earlier  of  the  important  cases 
which  have  engaged  Mr.  Young  were  the  ac- 
tions prosecuted  by  the  government  against 
some  of  what  were  known  as  the  "Star  Route" 
contractors — that  is.  mail  carriers  contracting 
under  the  government.  In  all  this  litigation 
— in  which  the  government  brought  suits  to 
recover  sums  of  money  amounting  to  nearly 
one  million  dollars — Mr.  Young  was  success- 
ful for  his  clients. 

1  he  firm  of  Gordon  &  Young  were  engaged 
in  the  case  of  Noonan  vs.  Nunan,  involving 
the  ownership  of  the  Hibcrnia  Brewery,  in 
San  Francisco;  also,  the  White  will  case,  at 
Ukiah,  Mendocino  county. 

Mr.  Young  also  represented  Josephine  Wal- 
ter, the  widow  of  the  late  Gustav  Walter,  of 
the  Orphcum  Theatre,  in  connection  with  the 
estate  of  her  husband,  and  the  litigation  insti- 
tuted by  Emma  Sterrelt.  claiming  to  be  en- 
titled to  all  the  interest  of  the  estate  in  the 
Orpheum   Theatre.     This  case   resulted   in  the 


estate  maintaining  its  interest  in  that  theatre. 

The  firm  of  Gordon  &  Young  is.  and  has 
been  for  many  years  attorneys  for  many  lead- 
mg  business  firms  in  San  Francisco,  notably 
the  Joshua  Hendy  Machine  Works,  American 
Type  rounders'  Co..  Palmer  &  Rey,  J.  J. 
Moore  &  Co. ;  and  they  are  also  the  attorneys 
for  the  Germania  Trust  Company,  and  the 
Swiss-American  Bank,  both  banking  houses 
doing  business  in  San  Francisco. 

Mr.  Young  is  married,  and  has  two  sons. 
He  is  of  Democratic  politics.  Never  holding 
public  office,  he  has  always  shown  a  lively  in- 
terest in  politics,  and  has  been  a  member  of 
rnany  Democratic  conventions,  taking  an  ac- 
tive part  therein.  He  exercises  a  large  in- 
fluence in  tne  councils. of  the  Ancient  Order 
of  United  Workmen,  and  the  Knights  of 
Honor. 


S.  D.  WOODS. 


S.  D.  Woods,  formerly  of  San  Francisco,  has 
come  to  be  a  veteran  of  the  Stockton  bar.  He 
.was  brought  by  his  parents  to  San  Francisco, 
in  his  infancy,  in  1849.  At  the  age  of  seventeen 
he  began  teaching  school.  Some  of  the  most 
noted  men  of  California,  and.  indeed,  of  the 
L^nited  States,  were  taught  by  Mr.  Woods 
during  this  period  of  his  active  life,  among 
them  being  the  now  famous  poet,  Edwin  Mark- 
ham,  whose  genius  Mr.  Woods  first  discov- 
ered in  the  little  building  then  known  as 
"Black's  schoolhouse,"  four  miles  east  of  Sui- 
sun  city,  when  young  Markham  first  became 
his  pupil. 

Mr.  Woods  was  admitted  to  practice  law  in 
1875,  but  failing  in  health,  some  three  years 
later  he  forsook  the  bar  and  went  to  mining. 
In  1882  he  visited  the  southeastern  portion  of 
our  State,  and  gave  much  time  to  a  thorough 
exploration  and  investigation  of  the  conditions 
prevailing  in  Death  Valley,  and  its  topographj'. 
Later  on  he  traveled  extensively  throughout 
the  northwestern  part  of  this  continent,  mak- 
ing a  continuous  ride  from  San  Francisco  to 
Seattle,  a  distance  of  some  800  miles,  on  horse- 
back. 

Mr.  Woods  took  up  his  residence  in  Stock- 
ton in  1885,  and  entered  on  his  profession 
with  ardor  and  energy.  He  was  successful 
from  the  beginning.  Our  Supreme  Court  re- 
ports show  that  Mr.  Woods  has  a  very  full 
business. 

Mr.  Woods  yet  continues  to  be  a  student  of 
law  and  alwavs  finds  time  to  give  to  reading 
and  investigation.  His  knowledge  of  the  law 
is  comprehensive  and  reliable.  He  is  a  just 
and  courteous  man  and  deservedly  popular  in 
and  out  of  court. 

He  has  particularly  distinguished  himself  jn 
coriinration  law,  and  among  his  clients  are 
numbered  many  large  corporations,  banks,  and 
other  large  mercantile  concerns,  which  con- 
tinually seek  his  counsel.  This  has  necessi- 
tated his  maintaining  an  office  at  San  Fran- 
cisco, in  the  Crocker  building,  where  he  •spends 
about  half  of  his  time. 

He  has  always  been  a  Republican  in  noli- 
tics,    believing    in    and    sympathi;^iug    with    the 


974 


History  of  the  Bench  and  Bar  of  California. 


principles  of  that  party,  though  of  late  years 
he   has   not   taken   an   active   interest   in   party 
affairs  until  the  summer  of  1900. 
Mr.   Woods  is  ever  ready  to  assist   in   pro- 


moting the  prosperity  of  San  Joaquin  county, 
and  can  always  be  found  working  shoulder  to 
shoulder  with  his  public-spirited  fellow-cit- 
izens for  the  best  interests  of  the  community. 
In  the  presidential  campaign  of  1900  Mr. 
Woods  was  the  Republican  candidate  for  con- 
gress from  the  Second  District,  and  at  the 
election  in  November,  was  elected  by  a  very 
large  majority  over  the  Democratic  nominee. 


CHARLES    B.    YOUNGER. 

Charles  B.  Younger  is  one  of  the  members 
of  the  bar  in  California  who  has  practiced 
here  since  the  fifties.  He  is  a  native  of  Mis- 
souri, and  was  born  at  Liberty  in  1831.  de- 
scended from  an  ancestry  that  lived  in  Mary- 
land   in    colonial    times. 

He  removed  when  a  lad.  with  his  parents, 
to  Kentucky,  where  he  subsequently  entered 
Centre  College  at  Danville,  graduating  there- 
from in  185.3.  After  graduating  he  read  law 
for  two  years  in  the  office  of  Hon.  Joshua  F. 
Bell  at  Danville,  and  was  admitted  to  the 
Kentucky  bar  in  1855.  His  first  work  of  a  semi- 
legal nature,  done  while  reading  law.  was 
reporting  for  the  Louisville  papers  the 
niurder  trial  of  Matt.  Ward,  of  Elizabethtown. 
in  which  case  there  was  an  array  of  the  most 
eminent  advocates  of  that  commonwealth. 

In  the  year  of  his  admission  to  the  bar.  Mr. 


Younger  came  to  San  Jose.  Cal.,  where  his 
father,  the  late  Colonel  Younger,  had  pre- 
ceded him  several  years.  He  at  once  entered 
upon  the  practice  of  his  profession,  which 
has  been  chiefly  confined  to  litigation  arising 
in  the  counties  of  Santa  Clara  and  Santa 
Cruz. 

Since  the  marriage  of  Mr.  Younger  in  1872 
to  Miss  Jeannie  Waddell,  at  Santa  Cruz,  he 
has  permanently  resided  at  that  city.  Two 
children  were  born  of  the  marriage,  a  daugh- 
ter and  a  son.  the  latter  being  an  attorney 
and    counsellor-at-law. 

Although  law  is  often  an  entrance  to  poli- 
tics. Mr.  Younger  has  taken  no  active  interest 
in  politics,  only  the  quieter  concern  of  a  good 
citizen.     His  Democracy  is  of  the  old  school. 

He  has  been  engaged  on  one  side  or  another 
in  nearly  all  litigation  of  any  consequence 
which  has  arisen  in  Santa  Cruz  county,  in- 
cluding much  of  the  earlier  land  litigation  :  the 
litigation  of  the  Santa  Cruz  Railroad  Com- 
pany with  the  county  of  Santa  Cruz,  and  with 
individuals ;  the  "Moore  cases,"  which  have 
been  before  the  Supreme  Court  in  various 
phases   for   twenty-five  years. 

Personally  Mr.  Younger  is  pleasant,  affable 
and  agreeable,  but  not  effusive.  He  is  pos- 
sessed of  a  peculiar  dry  wit,  which  often 
relieves  the  monotony  of  a  weary  trial. 

It  was  recently  said  of  Mr.  Younger  that 
he  is  "one  of  the  ablest  lawyers  in  the  State. 
His  success  has  come  from  a  nrofound  knowl- 
edge of  the  intricacies  of  the  law,  and  in  civil 


cases    involving    fine    legal    propositions    there 
is    no    more    formidable    fighter    in    the    State, 
and   he   has    the    reputation   of   never   quitting      1 
imless    successful." 


History  of  the  Bench  and  Bar  of  California. 


975 


JOHN   QUINCY   ADAMS. 

John  Quincy  Adams  was  born  in  New  Jersey, 
June  2j,  i8ji.  He  came  in  infancy  to  San 
Francisco,  arriving  as  early  as  March  26, 
1847,  with  his  father,  a  member  of  "Steven- 
son's Regiment."  He  was  educated  in  the 
San  Francisco  public  schools  and  in  the  Col- 
legiate Institute,  and  Law  College.  Benicia. 
He  was  admitted  to  the  bar  of  the  State  Su- 
preme Court,  October  13,  1873,  and  has  since 
practiced  in  San  Francisco.  On  September  9, 
1872,  he  delivered  the  annual  oration  before 
the  Society  of  California  Pioneers  (of  which 
he  is  a  member). 


H.  C.  AUSTIN. 


This  experienced  Police  Judge  of  Los  An- 
geles city  was  born  near  Boston,  Mass.,  Jan- 
uary 6,  1836.  He  was  educated  in  the  public 
schools,  and  was  taught  the  printer's  trade. 
After  some  service  as  a  reporter  on  the  Bos- 
ton dailies,  the  Mail  and  the  Herald,  he  went 
in  1859,  to  Chicago  and  was  reporter,  and 
later  war  correspondent,  for  the  Tribune  of 
that  city.  Afterwards  he  became  editor  of  the 
Peoria  (Illinois)  Transcript.  In  1865  he  was 
appointed  to  a  position  in  the  General  Land 
Office  at  Washington,  D.  C,  which  he  held 
until    July,    1869.      He    then    removed    to    Los 


Angeles,  Cal.  He  went  to  that  city  to  take 
the  office  of  Register  of  the  United  States  Land 
Office,  to  which  he  had  just  been  appointed 
by  President  Grant.  He  had  taken  up  the 
study  of  law  in  Washington  City,  and  attended 
during  his  residence  there  a  course  of  law  lec- 
tures at  Columbian  Law  School ;  and  now  at 
Los  Angeles  he  completed  his  law  reading,  and 
was  admitted  to  the  bar.  He  was  practicing 
at  the  Los  Angeles  bar,  when,  in  1884,  he  was 
elected  City  Justice  and  ex-offlcio  Police  Judge. 
By  successive  re-elections,  he  held  the  posi- 
tion for  five  terms,  from  January,  1885,  to  Jan- 
uary, 1895.  Declining  to  serve  longer  on  the 
bench,  on  account  of  ill  health,  he  resumed  law- 
practice  and  followed  it  for  four  years.     In  the 


fall  of  1898,  he  was  again  elected  to  his  old 
seat  on  the  city  bench,  the  term  now  being 
for  four  years,  and  running  to  the  first  week 
in  January,  1903.  He  is  now  occupied  with  the 
duties  of  that  office. 

The  Judge  married  in  1859,  Sarah  E.  Myers, 
whose  father  was  an  officer  on  Blucher's  staff 
at  the  battle  of  Waterloo.  There  have  been 
four  children  of  this  union;  two  girls  and  two 
boys.     Three  of  these  are  now  living. 


ROBERT    N.    BULLA. 

Robert  N.  Bulla  was  born  in  Wayne  county, 
Indiana,  in  1852.  He  was  graduated  from  the 
National  University  at  Lebanon.  Ohio,  in 
1875,  and  a  few  years  later  was  admitted  to 
the  bar  at  Cincinnati.  He  came  to  California 
in  1883,  and  located  at  Los  Angeles,  where  he 
has  ever  since  resided.  The  partnership  be- 
tween him  and  Mr.  Percy  R.  Wilson,  under 
the  firm  name  of  Wilson  &  Bulla,  dates  from 
the  year  1888. 

Soon  after  beginning  practice  in  Los  An- 
geles, Mr.  Bulla  not  only  became  verj^  con- 
spicuous at  the  bar.  but  was  an  acknowledged 
political  leader  on  the  Republican  side.  He 
has  now  for  some  years  been  a  distinguished 
public  man.  He  has  twice  been  elected  to 
the  assembly,  and  served  in  the  sessions  of 
1893  and  1895.  In  1896  his  party  convention 
nominated  him  for  the  State  senate,  and  he 
was  elected  by  a  good  majority. 

The  history  of  the  Los  Angeles  Chamber  of 
Commerce,  by  Charles  Dwight  Willard  (1900) 
says : 

"Mr.  Bulla's  service  in  the  legislature  was 
of  exceptional  importance,  as  he  was  put  on 
working  committees,  and  took  an  active  hand 
in  all  the  great  issues  that  came  up  for 
consideration.  He  was  the  author  of  the  bill 
requiring  divorced  people  to  wait  a  year  be- 
fore marrying  again,  the  delinquent  tax  law, 
and  many  other  important  measures.  He  was 
appointed  by  Governor  Markham  on  the  Tor- 
rens  land  law  commission,  and,  as  a  result  of 
his  labors,  the  legislature  adopted  a  measure 
embodying  the  essential  features  of  that  sys- 
tem of  land  transfers.  A  similar  law  was 
passed  in  Illinois,  and  when  it  was  believed 
unconstitutional,  it  was  remodeled  in  accord- 
ance with  the  measure  prepared  by  Mr.  Bulla. 
He  was  appointed  a  member  of  the  code  com- 
mission by  Governor  Budd,  a  Democrat,  and 
did  effective    service  in   that   important  body." 

Mr.  Bulla  is  regarded  by  the  legal  profes- 
sion as  one  of  its  most  capable  members.  He 
has  now  become  identified  with  large  oil  inter- 
ests, and  is  enjoying  greater  prosperity  than 
ever. 

He  was  one  of  the  leading  contestants  for 
the  place  of  I'nited  States  senator  to  succeed 
Hon.  Stephen  M.  White,  at  the  legislative 
session  of  1899.  The  Republican  county  con- 
vention of  Los  .A.ngcles.  liy  an  overwhelming 
majority,  instructed  the  senators  and  assem- 
l)lymen  from  that  county  to  vote  for  him.  The 
long  and  hard  struggle  ended  in  the  election 
of  Hon.  Thomas  R.  Bard,  to  which  result  Mr. 
Bulla  finally  contributed. 


976 


History  of  the  Bench  and  Bar  of  Calif oniiu. 


OLIVER  B.  CARTER. 

Oliver  B.  Carter,  a  member  of  tlie  Los  An- 
geles bar,  was  born  September  j6.  1H57.  at 
La  Grange.  Fayette  county,  Texas.  Like  so 
many  men  who  have  made  a  place  for  them- 
selves in  the  world,  he  had  few  advantages  in 
his  early  life.     UnU\  he  was  seventeen,  he  lived 


alternatelv  in  the  country  and  town,  and  re- 
ceived but  a  common  school  education.  Yet 
he  was  never  idle,  and  found  opportunities  for 
self-improvement  that  are  ever  within  the 
grasp  of  the  earnest  soul  who  is  seeking  for 
higher  and  better  things. 

In  1874  he  moved  to  Petersburg,  Menard 
county.  111.,  and  here  at  the  age  of  twenty  he 
commenced  the  study  of  the  law.  He  early 
engaged  in  the  abstract  and  title  business,  to 
which  he  has  given  his  principal  attention  in 
the  intervening  years.  He  was  for  eight  years 
deputy  clerk  of  the  Circuit  court  of  Menard 
county,    Illinois. 

In  1888,  Mr.  Carter  came  to  California  and 
located  at  Los  Angeles.  During  his  active 
career  there  he  has  been  connected  in  a  legal 
capacity  with  various  abstract  companies.  For 
the  past  five  years  he  has  been  examining  at- 
torney for  the  Title.  Guarantee  and  Trust 
Company. 

Mr.  Carter  has  achieved  his  success  by  hard, 
persistent  work,  iiis  experience  of  twenty- 
four  years  in  the  title  ar\d  abstract  business 
has  made  a  specialist  of  him  in  this  branch 
of  the  legal  profession  :  and  he  is  regarded  by 
able  lawyers  as  an  expert  in  probate  and  real 
estate  law. 

Mr.  Carter  was  married  in  Petersburg,  111., 
October  29,  188,3.  and  his  family  consists  of 
his  wife  and  daughter,  now  seventeen  years 
of  age. 

JOHN  CHETWOOD.  JR. 

John  Chetwood  Jr.,  was  Iwrn  in  Elizabeth. 
N.  J.,  April  28,  1859.  A  clergyman's  son,  of 
American  parentage,  he  was  educated  at 
Princeton     College    and    the    Co]uml>ia    Law 


School,  and  was  admitted  to  the  bar  in  Brook- 
lyn, N.  Y.,  in  September,  1884.  He  located  in 
San  Francisco  in  January,  1885.  He  was  in 
partnership  with  Bartholomew  Noyes  (Noyes 
&  Chetwood).  for  about  two  years,  and  has 
practiced  alone  from  the  end  of  that  associa- 
tion to  the  present  time. 


HARRY  T.  CRESWELL. 

Mr.  Creswell  was  born  in  Eutaw,  Alabama, 
at  the  residence  of  the  elder  Harry  I.  Thorn- 
ton, on  December  10,  1850.  Harry  I.  Thorn- 
ton Jr.,  referred  to  in  this  History,  was  his 
uncle,  and  left  him  his  estate.  His  father 
was  Judge  David  Creswell,  a  Circuit  Judge 
in  Illinois.  Mr.  Creswell,  after  being  ad- 
mitted to  the  bar  in  his  native  state,  went  to 
Nevada,  where  he  became  prominent  in  the 
profession  and  held  the  office  of  district  at- 
torney for  three  terms.  He  was  also  a  state 
senator  there. 

He  removed  to  San  Francisco  in  1888.  For 
three  terms,  1893-98,  he  was  city  and  county 
attorney,  and  city  hall  commissioner  of  San 
Francisco,  but  resigned  in  the  middle  of  his 
last  term,  to  go  in  partnership  with  Hon.  John 
Garber  and  Joseph  B.  Garber,  in  law  practice. 
He  is  a  lawver  of  much  ability,  and  has  always 
enjoyed  great  prosperity.  The  leading  law 
firm  of  Garber,  Creswell  &  Garber  dates  from 
1897.  

LOUIS   F.   DUNAND. 

Mr.  Dunand  was  born  in  New  Orleans,  La., 
September  15th.  1849.  His  father,  Maurice 
Dunand,  a  mining  engineer,  attracted  by  the 
discovery  of  gold  in  California,  arrived  with 
his  family  in  the  fall  of  '50.  The  father  was 
able  to  give  his  son  the  advantage  of  a  first- 


class  education  in  the  public  schools  of  San 
Francisco,  and  at  Santa  Clara  College.  On 
his  admission  to  the  bar  in  1879,  Mr.  Dunand 
commenced  the  practice  of  his  profession  in 
S^an  Francisco.  For  twenty  years  he  has  de- 
voted   himself    more    to    office    work    than    to 


William  H.   Chapman 


Hisforx  of  the  Bench  and  Bar  of  California. 


979 


court  practice,  and  has  been  particularly  suc- 
cessful in  real  estate  cases,  disputed  land 
titles,  and  commercial  law.  The  legal  pro- 
fession has  been  to  him  something  more  than 
a  money-getting  business,  and  it  is  said  of  him 
that  he  has  never  encouraged  litigation — pre- 
ferring to  obtain  for  his  clients  their  just  rights 
by  honorable  and  fair  compromise.  In  all 
his  dealings  he  is  unfalteringly  conscientious. 
Mr.  Dunand's  clientage  includes  such  firms 
and  corporations  as  the  Dumbarton  Land  and 
Improvement  Company,  the  Imperial  Paint 
and  Copper  Company,  the  Central  American 
Development  Company,  and  the  Commercial 
Building  and  Loan  Association,  whose  import- 
ant litigations  he  has  conducted  with  signal 
success.  He  has  traveled  extensively  in  the 
interests  of  his  clients,  in  the  East,  Mexico, 
and  Central  America,  where  contracts  and 
titles  of  importance  were  successsfully  passed 
upon  by  him. 

Some  six  years  ago  Mr.  Diinand  was 
enabled  to  carry  out  his  long-cherished 
hope  of  possessing  a  home  in  the  country, 
and  he  selected  San  Rafael,  that  beautiful 
little  city  across  the  bay  among  the  Marin 
Hills.  There  he  spends  his  evenings  sur- 
rounded by  his  family  in  the  study  of  litera- 
ture as  well  as  the  law.  In  politics  Mr.  Dun- 
and  is  a  Democrat,  and  at  the  election  held 
in  San  Rafael  in  the  spring  of  1898,  he  was 
elected  by  a  large  majority  a  member  of  the 
board  of  education  for  the  term  of  four  years. 
In  fraternal  organizations  he  holds  high  po- 
sitions, being  a  past  master  of  Doric  Lodge 
F.  and  A.  M.,  and  Past  Noble  Grand  Arch 
of  the  Order  of  Druids.  He  is  an  accom- 
plished linguist. 


WILLIAM    H.    CHAPMAN. 

Mr.  Chapman's  name  brings  up  the  memory 
of  the  loss  of  the  steamship  Central  America, 
off  Cape  Hatteras  in  1857.  His  father,  Daniel 
H.  Chapman,  went  dow-n  on  that  vessel,  with 
many  other  California  pioneers,  who  were  on 
their  way  to  visit  their  old  Eastern  homes, 
among  them  being  the  great  lawj^er,  Lock- 
wood    (q.   v.). 

Mr.  Chapman  comes  from  an  old  American 
family,  and  was  born  in  Sacramento  county, 
California,  October  ig,  1856.  His  parents  were 
pioneers  of  1849.  He  received  his  early  edu- 
cation in  the  public  schools,  afterwards  at- 
tending the  University  of  California,  from 
which  he  was  graduated  in  the  class  of  1879, 
with  the  degree  of  M.  A.  He  pursued  the 
study  of  law  by  himself,  and  was  admitted  to 
practice  by  the  Stale  Supreme  Court  on  Jan- 
uary II,  1881,  after  examination.  On  October 
19,  1893.  he  was  admitted  to  the  bar  of  the 
Supreme  Court  of  the  L'nited  States. 

Air.  Chai)man's  practice  has  been  at  the  bars 
of  San  Francisco  and  Oakland,  and  in  the 
civil  line  exclusively.  It  has  ])een  active,  and 
principally  in  cases  involving  corporation,  real 
estate,  mining  and  commercial  law.  For  some 
years.  1)eginning  in  188.^,  Mr.  Chapman  was 
in  partnership  with  Charles  W.  Slack,  who 
was  afterwards   (.\ugust,  1891 — January,   1899) 


a  Superior  Judge  of  San  Francisct).  This  was 
a  strong  firm  and  became  very  prominent,  ac- 
quiring large  business. 

Mr.  Chapman  is  generally  accounted  by 
leading  men  of  his  profession,  as  a  lawyer  of 
great  ability  and  learning,  and  very  safe  in 
counsel.  This  has  been  his  reputation  now 
for  many  years.  He  has  also  been  very  pros- 
perous, and  continues  to  be  very  fully  em- 
ployed. He  has  been  a  member  of  the  Board 
of  Education  of  Berkeley.  He  is  prominent  in 
the  Masonic  Order,  and  belongs  to  other  fra- 
ternal organizations.  He  is  a  member  of  Cali- 
fornia  Commandery,   No.   i.   Knights  Templar. 

On  July  27.  1881.  at  Oakland.  Mr.  Chapman 
was  united  in  marriage  with  Miss  Lulu  E. 
Medbery,  who  is  a  native  of  Wisconsin,  and 
also  a  graduate  of  the  University  of  Califor- 
nia, of  the  class  of  1880.  There  are  three 
bright  children  of  the  union — Alice  Maybin. 
aeed  seventeen  :  Lester  H.,  aged  fourteen  ;  and 
Charles    Carroll,    aged   ten. 


HUGH  T.  GORDON. 

Hugh  T.  Gordon  was  born  in  Maury  county, 
Tennessee,  June  12,  1848,  and  comes  from  a 
noted  Southern  family.  His  grandfather, 
Chapman  Gordon,  was  a  Revolutionary  soldier 
m  the  North  Carolina  line,  and  was  in  the  bat- 
tle of  King's  Mountain,  when  a  boy  of  six- 
teen years.  His  father  was  a  captain  in  the 
Forty-eighth  Tennessee.  C.  S.  A.  He  died  at 
V'icksburg.  Mississippi,  in  1862,  when  his  son, 
our  subject,  was  a  lad  of  fourteen  summers. 
His  mother  died  before  he  was  three  years  old; 
so,  at  the  early  age  of  fourteen,  in  the  midst 
of  the  Civil  War,  with  all  of  its  devastation 
and  blight,  he  was  thrown  upon  his  own  re- 
sources. During  the  four  years  of  the  war 
there  was  no  school  he  could  attend,  and  he 
was  compelled  to  work  on  the  farm  during 
that  time,  and  for  several  years  after.  In  1869- 
70  he  was  a  student  at  the  University  of  \'ir- 
ginia,  and  finished  his  education  there.  In 
1872-73-74  he  was  the  county  superintendent 
of  public  schools  in  his  native  county  in  Ten- 
nessee, and  met,  combatted  and  overcame  in  his 
county  to  a  large  extent  the  prejudice  existing 
at  that  time  in  the  South  to  the  i)ublic  school 
system. 

Mr.  Gordon  studied  law  in  the  office  of  his 
brother,  W.  B.  (jordon,  at  Columbia.  Tennes 
see.  and  was  admitted  to  the  bar  in  1872.  In 
1874  he  was  married  to  Miss  Anna  M.  Nich- 
olson, the  yomigest  daughter  of  Hon.  A.  O.  P. 
Nicholson,  who  was  at  that  time  chief  justice 
of  the  Supreme  Court  of  Tennessee,  and  at  the 
beginning  of  the  Civil  War  a  senator  in  con- 
gress, his  colleague  being  Andrew  Johnson, 
afterwards  President. 

Mr.  and  Mrs.  Gordon  have  a  delightful  fam- 
ily of  five  children,  three  of  them  boys,  strong, 
manly  fellows,  and  two  beautiful  girls.  These 
chifdren  .'an  trace  their  ancestry  on  both  sides 
to  colonial  limes,  and  to  the  nobilitv  of  Scot- 
l.-md. 

Mr.  ( iordon  practiced  law  successfully  in 
Columbia.  Tennessee,  in  partnership  with  his 
l)rolher.  till  188,^.  when  he  went  to  southeastern 


980 


History  of  flic  Bench  and  Bar  of  California. 


Arkansas,  and  formed  a  partnership  with  Col- 
onel J.  W.  Dickinson  of  Arkansas  City.  He 
lost  his  health  there,  and  in  1887  removed  to 
Los  Angeles.  California,  and  opened  a  law 
office  in  the  latter  part  of  1888.  He  stands 
well  with  the  bar ;  is  considered  a  good  lawyer 
and  safe  counsellor,  and  is  an  honorable  man. 


EDWIN  W.  FREEMAN. 

Mr.  Freeman  was  born  at  Galesville,  Wis- 
consin, October  i,  i860.  After  attending  the 
common  .ychools,  he  entered  the  Galesville 
University,  to  complete  his  education.  The 
institution  was  founded  by  his  uncle,  Judge 
Gale.  He  began  the  study  of  law  in  the  office 
of  his  father,  G.  Y.  Freeman,  who  had  a  large 
general  law  practice  in  northwestern  Wiscon- 
sin. 

Mr.  Freeman  was  admitted  to  the  bar  in 
that  state  in  the  spring  of  1887,  and  came  at 
once  to  California.  For  a  time  he  lived  in  Los 
Angeles,  where  he  was  clerk  in  the  law  office 
of  W.  P.  Gardner.  He  soon  changed  his  loca- 
tion to  San  Bernardino,  and  was  clerk  in  the 
law  office  of  Hon.  H.  C.  Rolfe.  Shortly  after 
taking  that  position  he  and  Judge  Rolfe  be- 
came partners,  under  the  firm  name  of  Rolfe 
&  Freeman.  In  May,  1892,  Mr.  Freeman  re- 
moved to  Soutn  Riverside,  now  Corona,  and 
became  the  attorney  of  the  South  Riverside 
Land  and  Water  Company,  the  Citizen's  Bank, 
and  the  Temescal  Water  Company,  besides 
doing  a  general  nracitce. 


When  Riverside  county  was  created,  in  1894, 
Mr.  Freeman  was  elected  as  its  first  member 
of  the  assembly,  and  served  at  the  session  of 
1892.  In  the  spring  of  1898  he  became  presi- 
dent of  the  Citizen's  Bank  of  Corona,  but  re- 
signed the  position  not  long  afterwards,  be- 
cause the  duties  thereof  required  a  great  deal 
of  time,  and  seriously  interfered  with  his  law 
practice. 

Mr.  Freeman  removed  to  Los  Angeles  in 
February,  1899,  and  is  now  enjoying  a  good 
practice  there.  He  married  Miss  Maude  Fau- 
ver.  of  La  Crosse,  Wisconsin,  in  1890,  when 
he  was  residing  at  San  Bernardino.     The  lady. 


who  had  varied  accomplishments,  died  in  1895, 
while  Mr.  Freeman  was  serving  in  the  legis- 
lature. 

HENRY  C.  GESFORD. 

Henry  C.  Gesford,  a  prominent  member  of 
the  San  Francisco  bar,  was  born  in  Napa 
county,  in  this  State,  in  1856.  He  is  a  grad- 
uate of  the  University  of  Michigan,  of  the 
class  of  1882.  Before  removing  to  San 
Francisco   he    won    great    success    in    law   and 


politics  in  his  native  county,  filling  the  offices 
of  suoerintendent  of  schools  and  district  at- 
torney. He  was  also  for  two  terms  State 
senator  for  Napa,  Lake  and  Yolo  counties, 
arid  being  Democratic  in  politics,  had  the 
pleasure  of  voting  for  two  successful  candidates 
of  his  party  for  United  States  senator,  namely. 
Hon.  George  Hearst  and  Hon.  Stephen  M. 
White.  In  their  election  he  took  an  active  and 
prominent  part. 

It  may  be  fittingly  stated  here  that  ex-Sena- 
tor White  died  at  his  home  in  Los  Angeles, 
February  21,  1901.  some  weeks  after  the  sketch 
of  him  m  this  History  had  been  printed,  and 
just  as  this  notice  of  Mr.  Gesford  was  being 
written.  His  age  was  forty-eight  years,  and 
he  was  buried  amid  general  mourning,  with 
the  ceremonies  of  the  Catholic  church. 

Mr.  Gesford.  when  he  joined  the  bar  of 
San  Francisco,  retained  his  Napa  clientage, 
and  still  has  offices  in  both  cities. 

As  a  lawyer,  Mr.  Gesford  ranks  high,  and 
although  a  young  man,  there  is  no  one  in 
his  profession  better  or  more  favorably  known. 
Mr.  Gesford  is  also  much  occupied  in  frater- 
nal circles,  being  a  member  of  the  Masonic 
order,  the  Odd  •  Fellows,  and  Native  Sons  of 
the  Golden  West.  He  is  a  past  grand  master 
of   the   last   named   fraternity. 


JULIAN  P.  JONES. 


Mr.  Jones  was  born  at  Warren,  Ohio.  Aug- 
ust 14.  1852.  His  parents  were  English,  his 
father  being  an  iron  worker.  They  removed 
to  the  then  frontier  in  Iowa,  when  he  was  quite 
young,  locating  on  a  farm,  where  his  bovhood 


William  J.  Herrin 


History  of  the  Bench  and  Bar  of  California. 


983 


was  spent  until  sixteen  years  of  age.  He  ob- 
tained such  education  as  the  schools  of  the  vi- 
cinity  afforded. 

In  1873  he  graduated  from  the  High  School 
at  Marion,  Iowa,  supporting  himself  the  while 
by  teaching  during  the  summer  vacations  and 
working  in  an  office  out  of  school  hours  while 
prosecuting  his  studies. 

On  leaving  school  he  went  at  once  into  the 
law  office  of  Major  J.  B.  Young,  at  Marion, 
taking  up  the  study  of  law,  and  was  admitted 
to  practice  in  the  District  and  Circuit  Courts 
of  Iowa  in  1875,  on  examination  held  at 
Boonesboro,  Iowa. 

In  January,  1877,  having  removed  to  his 
chosen  field  for  practice,  Rockford,  Illinois, 
he  was  admitted  to  the  bar  by  the  Supreme 
Court  of  the  state  of  Illinois,  and  he  continued 
in  the  practice  at  Rockford  until  the  fall  of 
1886. 

in  October,  1886  he  was  united  in  marriage 
with  Eva,  youngest  daughter  of  Dr.  Lucius 
S.  Clark,  a  pioneer  physician  of  that  city,  and, 
quitting  his  practice,  at  once  set  out  for  South- 
ern  California. 

Locating  in  that  section  now  constituting 
the  county  of  Riverside,  he  divided  his  time 
between  ranch  life  and  practice,  taking  an 
active  part  in  the  erection  of  the  county  of 
Riverside.  His  home  has  been  in  Los  Angeles 
city  for  about  seven  years.  From  that  point 
his  practice  has  extended  into  Orange  and 
Riverside  counties.  He  has  one  child,  a  daugh- 
ter, now  eight  years  of  age. 


WILLIAM    J.    HERRIN. 

William  James  Herrin  was  born  on  the  i6th 
day  of  June,  1858,  at  Mooresville,  Yuba  county, 
California.  After  attending  the  public  schools 
of  the  day  he  engaged  in  teaching,  which  he 
continued  with  success,  tlius  obtaining  the 
means  with  which  to  procure  a  higher  educa- 
tion, as  he  had  become  possessed  of  a  desire 
to  enter  the  profession  of  the  law.  Subse- 
quently he  was  a  student  at  the  state  univer- 
sity, and  also  the  Hastings  College  of  the  Law. 
He  was  admitted  to  practice  in  the  Supreme 
Court  of  the  State  of  California  in  1885.  We 
copy  the  following  from  the  History  of  North- 
ern California,  published  m  1S91  : 

"Mr.  Herrin's  entrance  upon  the  practice  of 
his  adopted  calling  was  at  Oroville,  and  here 
his  subsequent  career  has  been  marked  by  a 
faithful  adherence  to  professional  duties  and 
a  ])rilliant  manifestation  of  his  ability  as  a 
lawyer.  His  conduct  of  several  noted  cases 
here  won  for  him  distinction.  Mr.  Herrin  has 
risen  wholly  by  his  own  efforts  to  tlie  honora- 
ble position  now  accorded  him.  Without  in- 
fluence or  assistance  from  any  one.  he  has 
overcome  olistaclcs  that  to  many  would  seem 
insurmoimtable,  and  at  this  time  enjoys  a  lib- 
eral share  of  the  law  patronage  of  the  county. 
In  political  matters  he  is  an  ardent  Repub- 
lican and  in  the  campaign  of  1890  was  the  can- 
didate of  his  party  for  district  attorney.  By 
liis  brother  practitioners  he  is  spoken  of  as  a 
worthy  member  of  the  bar  and  one  who  prom- 
ises a  great  deal  for  the  future." 


In  1892  Mr.  Herrin  removed  to  San  Fran- 
cisco and  formed  a  co-partnership  with  Geo. 
D.  Shadburne  (q.  v.).  This  firm  enjoyed  a 
lucrative  practice  from  the  start.  It  was  dis- 
solved by  mutual  consent  in  1896,  since  which 
time  Mr.  Herrin   has  been  practicing  alone. 

Mr.  Herrin  is  at  present  attorney  for  the 
sheriff  of  the  City  and  County  of  San  Fran- 
cisco, Hon.  John  Lackmann,  the  successful 
business  man  and  former  supervisor.  The 
position  of  sheriff's  attorney  in  that  populous 
city  is  one  of  great  responsibility.  It  is  pro- 
vided for  by  law,  with  an  official  salary,  the 
incumbent  being  selected  by  the  sheriff.  Mr. 
Herrin  is  a  lawyer  of  great  general  capacity, 
and  his  practice  is  large  and  lucrative,  includ- 
ing as  it  does,  the  business  of  several  estates 
of  magnitude,  and  heavy  corporations. 


JACKSON  HATCH. 


Jackson  Hatch  was  born  in  Tuolumne 
county  in  this  State,  and  received  his  educa- 
tion in  the  public  schools,  completing  the 
course  at  the  age  of  seventeen  years.  He 
pursued  an  additional  course  of  study  for 
the  following  two  years,  and  at  the  age  of 
nineteen  engaged  in  teaching  school  in  Co- 
lusa county,  following  that  profession  for 
two  years.  At  the  age  of  twenty-one  he  was 
admitted  to  practice  in  the  Supreme  Court, 
and  was  immediately  elected  district  attor- 
ney of  Colusa  county,  which  position  he  held 
for  four  years.  During  this  period  he  was 
engaged  also  in  the  conduct  of  an  extensive 
civil  practice.  At  the  end  of  the  term  of  his 
service  as  district  attorney  he  entered  upon 
a  large  criminal  practice  and  in  the  four  years 
following  deifended  in  twenty-one  murder 
cases.  The  most  important  of  these  was  that 
of  Huram  Miller,  who  was  charged  with 
the  murder  of  Dr.  H.  J.  Glenn,  the  Demo- 
cratic candidate  for  Governor  of  this  State  in 
1879. 

In  1884  Mr.  Hatch  removed  to  Red  Bluff, 
in  Tehama  county,  where  he  practiced  his  pro- 
fession, with  business  also  in  Shasta  and  Trin- 
ity. During  this  period  he  was  engaged  in 
many  notable  cases,  among  which  was  the 
action  involving  the  removal  of  the  county- 
seat  of  Shasta  county. 

In  1888  he  removed  to  San  Francisco  to 
take  the  position  of  first  assistant  United 
States  district  attorney  tendered  to  him  by 
General  John  T.  Carey,  the  United  States 
district  attorney.  During  his  incumbency  of 
that  office  he  was  entrusted  with  most  of 
the  criminal  and  civil  cases  in  which  the  gov- 
ernment was  interested  in  the  Ignited  States 
District  and  Circuit  Courts. 

In  1890  Mr.  Hatch  removed  to  San  Jose, 
where  he  has  since  been.  In  that  year  he  was 
named  as  one  of  the  Democratic  candidates 
for  Associate  Justice  of  the  Supreme  Court. 
The  entire  Democratic  ticket,  however,  was 
defeated   at   the   ensuing   election. 

In  1894,  Mr.  Hatch  was  mentioned  as  a 
prominent  candidate  for  Governor  of  this 
State,  but  declined  to  have  his.  name  placed 
before  the  convention. 


984 


History  of  the  Bench  and  Bar  of  California. 


Since  1890,  he  has  been  engaged  in  the  prac- 
tice of  hivv  in  San  Jose  and  surrounding 
counties.  He  is  at  present  one  of  the  attor- 
neys for  the  Union  Savings  Bank  of  San  Jose, 
and  the  attorney  for  the  Commercial  and  Sav- 
ings Bank  of  San  Jose,  and  for  the  San  Jose 
and  Santa  Clara  Railroad  Company,  and  va- 
rious  other   corporations   and   large   firms. 


Mr.  Hatch  is  a  prominent  member  of  the 
Benevolent  and  Protective  Order  of  Elks, 
being  the  exalted  ruler  of  San  Jose  lodge 
No.  522,  and  a  representative  of  that  lodge 
to  the  grand  lodge  which  held  its  session  at 
Atlantic    City    in    July,    1900. 


A.  MORGENTHAL. 

Anton  Morgenthal  is  a  native  of  Lengenfeld, 
province  of  Sa.xony,  Prussia,  and  was  born  in 
1850.     He  came  to  the  United  States  in   1871, 


from  the  Hastings  College  of  the  Law  at  San 
Francisco  in  1879,  and  in  the  same  year  was 
admitted  to  practice  by  the  Supreme  Court  at 
Sacramento.  He  has  ever  since  been  at  the 
bar  in  San  Francisco. 

Mr.  Morgenthal's  professional  career  has 
been  one  of  activity  and  success  from  the  be- 
ginning. In  his  commodious  oifice  in  the  Flood 
building  he  has  gathered  a  splendid  working 
law  library,  which  also  represents  a  large 
money  value.  He  is  a  very  careful  and  faith- 
ful practitioner.  As  a  man  he  is  of  quiet  tem- 
perament, and  sincere  nature.  He  is  always 
maKHig  friends  and  attracting  clients.  He  is  a 
member  of  the  San  Francisco  Bar  Association 
and  of  the  American  Legion  of  Honor. 

Mr.  Morgenthal  married,  at  San  Francisco, 
in  1893,  Miss  Minnie  Smith.  They  have  one 
child,  a  son. 

GILBERT  D.  MUNSON. 

Gilbert  D.  Munson's  ancestors  were  among 
the  early  settlers  of  New  Haven  and  Hartford, 
Connecticut.     And  he  is  one  of  the  vice-presi- 


and  to  California  in  1876.  Since  the  latter 
year  he  has  always  resided  in  San  Francisco. 
He  was  educated  at  Hamburg,  Germany,  and 
at    St.    Louis,    Missouri.     He    was    graduated 


dents  of  the  Munson  Association  of  New 
Haven.  He  was  admitted  to  the  bar  in  New 
York  City  in  1876,  after  a  course  of  study  in 
the  Columbia  College  Law  School. 

After  admission  to  the  bar  in  Ohio,  in  the 
same  year,  he  practiced  law  in  Zanesville, 
Ohio,  until  elected  to  the  Common  Pleas  bench 
in  the  first  subdivision.  Eighth  Judicial  dis- 
trict. November.  1894.  Scveral'of  the  Su- 
preme Court  reports  of  that  state  show  the  part 
he  bore  in  important  cases,  while  at  the  bar, 
notably,  the  Forty-seventh  Ohio  State  Report. 
On  retiring  from  the  bench,  after  the  expira- 
tion of  his  term  of  office,  he  came  to  Califor- 
nia, and  has  resided  in  Los  Angeles  and  en- 
gaged in  the  practice  of  the  law. 

7  he  Zanesville  newspapers  published  of 
Judge  Munson,  .prior  to  his  leaving  Ohio  for 
California,  as  to  his  official  service,  that  he  oc- 
cupied the  uni(|ue  position  of  never  having  had 
a  decision  reversed  by  the  Supreme  Court,  and 
that  he  retired  from  office  with  the  good  will 


E.  S.  Salomon 


History  of  flic  Bench  and  Bar  of  California. 


987 


and  best  wishes  not  only  of  every  practitioner 
before  him,  but  of  all  the  people  generally, 
without  regard  to  party;  and  with  the  docket 
cleaned  up  to  date,  so  that  every  case  ready 
for  trial  could  be  tried  when  reached,  if  de- 
sired, without  delay. 

Judge  Munson  is  a  veteran  soldier  of  the 
Civil  War.  He  served  in  the  ranks  as  a  private 
soldier,  but  commanded  his  regiment,  the  Sev 
enty-eighth  Ohio  Volunteer  Infantry,  at  the 
close  of  the  war  as  lieutenant-colonel,  and 
was  afterwards  brevetted  colonel.  Since  his 
admission  to  the  bar  of  California  he  has  taken 
jiart  in  the  trial  of  a  number  of  important 
cases,  and  acquired  a  valuable  practice. 


E.  S.  SALOMON. 


Edward  S.  Salomon  was  born  in  the  city  of 
Schleswig.  Germany,  December  25.  1836.  He 
came  to  America  in  1854,  and  settled  in  Chi- 
cago, where  he  engaged  as  clerk  in  a  store  un- 
til 1857.  He  then  commenced  the  study  of  law 
with  Norman  B.  Judd,  one  of  the  most  promi- 
nent and  successful  lawyers  in  the  great  north- 
west. While  a  student  in  Mr.  Judd's  office  he 
became  well  acquainted  with  Abraham  Lin- 
coln, who  was  a  warm  personal  friend  and  con- 
stant visitor  at  the  office  of  Mr.  Judd.  when 
in  the  city  of  Chicago  on  legal  business.  Mr. 
Salomon  was  admitted  to  practice  in  the  Su- 
preme Court  of  Illinois  in  1859.  Soon  there- 
after he  became  a  member  of  the  law  firm  of 
Peck,  Buell  &  Salomon.  At  the  commence- 
ment of  the  War  of  the  Rebellion  he  enlisted 
and  was  commissioned  a  second  lieutenant  in 
the  Twenty-fourth  Illinois  Infantry.  The 
commander  of  this  noted  regiment  was  Colonel 
Hecker.  who  was  a  leader  in  the  German  Rev- 
DJution  in  1848.  Lieutenant  Salomon  was  suc- 
cessively promoted,  until  he  became  major  of 
his  regiment. 

Early  in  1862  a  disagreement  arose  between 
Colonel  Hecker  and  his  officers,  which  caused 
his  resignation.  Major  Salomon  and  several 
other  officers  of  the  regiment  also  resigned, 
following  the  example  of  their  colonel.  On 
tJie  heels  of  this  movement.  Colonel  Hecker  and 
.Major  Salomon  proceeded  to  organize  a  new 
regiment,  which  they  accomplished  in  a  few 
weeks.  This  regiment  was  denominated  the 
Eiglity-second  Illinois  Infantry.  Hecker  was 
elected  colonel,  and  Major  Salomon  was 
elected  lieutenant-colonel.  In  1863  Lieutenant- 
Colonel  Salomon  was  promoted  and  made  col 
onel  of  the  Eighty-second  Regiment,  which  was 
at  this  time  a  part  of  the  Army  of  the  Po- 
tomac. The  regiment  participated  in  all  the 
battles  of  that  army,  including  Gettysburg. 

.\fter  the  battle  of  Gettysburg,  the  Colonel 
and  his  command  joined  the  forces  of  Fighting 
Joe  Hooker,  which  became  a  part  of  the  Army 
of  the  Cumberland.  Colonel  Salomon  took 
part  in  the  .A^tlanta  cami)aign. 

After  the  Atlanta  camjjaign  his  reginienl  w.is 
l)laced  in  and  became  a  part  of  the  .\rmy  of 
Georgia,  under  conunand  of  General  Slocum, 
and  with  this  command  Colonel  Salomon 
marched  with  Sherman  from  "Atlanta  to  the 
Sea."  .Subsequently  he  took  part  in  the  great 
l)ar;i(le  in  Washington  on  the  23d  and  24th  of 


May.  1865.  At  the  close  of  the  war  he  was 
brevetted  brigadier-general  "for  distinguished 
gallantry  and  meritorious  services."  After  the 
battle  of  Gettysburg  General  Carl  Schurz.  brig- 
ade commander,  said  in  his  report  to  General 
O.  O.  Howard :  "Colonel  Salomon  of  the 
Eighty-second  Illinois  displayed  the  highest  or- 
der of  gallantry  and  determination  under  very 
trying  circumstances." 

Colonel  J.  S.  Robinson,  commanding  the 
Third  Brigade,  Twentieth  Army  Corps,  said : 
"I  have  the  honor  to  respectfully  request  that 
you  issue  a  colonel's  commission  to  Lieutenant 
Colonel  Edward  S.  Salomon,  commanding  the 
Eighty-second  Illinois  Infantry.  It  is  my  sin- 
cere belief  that  Lieutenant-Colonel  Salomon 
fully  deserves  this  favor,  not  only  by  his  abil- 
ity and  merit  as  an  officer,  but  more  particu- 
larly by  the  gallantry  and  efficiency  he  has  dis- 
plaved  in  the  campaign."  General.  Joe  Hooker 
approved  of  the  promotion  in  the  following 
language :  "I  concur  in  the  within  recommen- 
dation. Lieutenant-Colonel  Salomon  has  won 
the  good  opinion  of  all  his  comrades  by  his 
great  gallantry  and  good  conduct,  and  it  will 
be  but  a  just  and  graceful  appreciation  of  his 
services  to  confer  this  preferment  upon  him." 

Brigadier-General  A.  S.  Williams,  in  his  rec- 
ommendation to  Secretary  of  War  Stanton, 
enumerated  several  battles  in  which  Colonel 
Salomon  distinguished  himself  as  a  courageous 
officer  and  efficient  commander.  He  specially 
mentioned  the  fighting  before  Resaca,  Georgia, 
on  May  14  and  15,  1864;  again,  on  the  25th  of 
the  same  month  at  New  Hope  Gap  ;  at  the  bat- 
tle of  Peach  Tree  Creek;  before  Atlanta,  on 
July  20,  1864.  "In  the  fight  near  Averyboro, 
North  Carolina,  Colonel  Salomon  led  his  regi- 
ment with  great  gallantry  and  skill."  "At  the 
battle  near  Bentonville,  on  March  19,  1865,  Col- 
onel Salomon  and  command  drew  the  unqual- 
ified admiration  of  all  who  witnessed  their 
coolness  and   discipline   under   fire." 

In  concluding  his  report.  General  Williams 
says:  "Colonel  Salomon  has  distinguished 
himself  in  other  engagements  besides  those 
which  have  been  mentioned.  .\t  Gettysburg 
and  Missionary  Ridge  his  gallantry  was  con- 
spicuous and  challenged  the  highest  admira- 
tion." On  June  15.  1865,  the  Secretary  of  War 
informed  Colonel  Salomon  that  the  Presidenr 
had  commissioned  him  briiradicr-gener.-il,  "for 
distinguished  gallantry  and  meritorious  serv- 
ices during  the  war." 

.\11  of  the  foregoing  quotations  and  extracts 
relating  to  the  General's  record  in  cmmection 
with  the  army  are  taken  from  the  records  in 
the  War  Department  at  Washington,  and  may 
also  be  found  in  the  History  of  the  Rebellion, 
l)ublished  by  the  government  by  virtue  of  an 
act   of  congres>^. 

hnmediately  after  the  close  of  llie  war.  ( len- 
er;il  Salomon  returned  to  Cliicago.  and  was 
-oon  elected  county  clerk,  which  was  then  one 
of  the  most  lucrative  offices  in  Illinois.  He 
held  this  position  for  four  years.  President 
Grant  then  apnointed  him  (governor  of  Wash- 
ington territory.  .\  few  days  before  Governor 
.Salomon  left  for  his  new  western  home,  a  large 
number  of  prominent  citizens  of  Chicago, 
among  whom  was  General   Phil   Sheridan,  the 


988 


History  of  the  Bench  and  Bar  of  California. 


"Hero  of  Winchester,"  and  one  of  the  three 
great  <?enerals  of  the  Civil  War,  presented  him 
with  a  magnificent  silver  table  service,  accom- 
panied with  a  handsomely  engraved  testimo- 
nial of  esteem  and  friendship. 

What  was  thought  of  him  and  his  adminis 
tration  as  Governor  of  the  territory  is  best  ex- 
plained  by   the   following   short   extract   taken 
from   a   long   series   of   resolutions   passed   by 
prominent  residents  of  the  territory: 

"We  express  unft-igned  regret  that  he  felt  it 
his  duty  to  resign  this  office.  His  official  acts 
are  his  best  record  ;  they  have  all  met  with  the 
heartiest  commendation  of  our  people.  A  thor- 
ough and  consistent  Republican,  baptized  in 
the  fire  of  battle,  when  gallantly  sustaining 
the  flag,  he  governed  well ;  he  satisfied  all,  for 
the  welfare  of  the  whole  was  constantly  in  his 
eye ;  he  was  true  to  the  portion  he  so  happily 
filled.  We  are  ready  to  accord  to  the  new  ex- 
ecutive (his  successor)  a  cordial  welcome.  We 
can  wish  him,  however,  no  higher  or  better 
aspiration  than  that  he  may  prove  worthy  to  be 
the  successor  of  one  who  so  faithfullj'  and  well 
performed  all  his  duties  as  Edward  S.  Salo- 
mon." 

The  Governor  came  to  California  in  1875, 
and  entered  upon  the  practice  of  his  pro- 
fession in  San  Francisco.  In  1887  he  was 
elected  department  commander  of  the  G.  A. 
R.  He  has  been  a  member  of  that  organi- 
zation for  many  years.  He  was  one  of  the 
organizers,  and  for  eight  years  commander- 
in-chief,  of  the  Army  and  Navy  Republican 
League  in  San  Francisco.  He  was  the  choice 
of  a  large  majority  of  the  G.  A.  R.  organiza- 
tion on  the  Pacific  Coast  for  the  commission 
ot  brigadier-general  in  the  volunteer  service 
for  the  campaign  in  the  Philippines,  but  Gen- 
eral Harrison  Gray  Otis,  of  Los  Angeles,  was 
the  fortunate  one  to  receive  this  honor. 

In  1888  Governor  Salomon  was  elected  tu 
the  California  legislature.  During  the  session 
he  was  the  recognized  leader  and  the  ablest 
speaker  in 'the  assembly.  In  1898  he  was  ap- 
pointed assistant  district  attorney  of  the  city 
and  county  of  San  Francisco.  He  has  taken 
an  active  part  in  all  presidential  campaigns  for 
about  thirty  years,  and  ranks  as  one  of  the 
best  campaign  sneakers  in  the  State. 


WILLIAM    G.    MURPHY. 

This  gentleman,  now  one  of  the  oldest  and 
best  known  lawyers  in  Northern  California, 
was  one  of  the  ill-fated  "Donner  party,"  and 
came  to  this  State  in  boyhood  so  long  ago  as 
1846.  Six  members  of  his  family  succumbed 
to  the  terrible  sufferings  to  which  that  party 
of  immigrants  was  subjected.  Another  little 
boy  of  that  company  was  destined  to  be  a 
Superior  Judge  in  the  coming  State.  (Hon. 
James  F.  Breen.)  Mr.  Murphy's  family  set- 
tled on  the  Yuba  river  in  1847,  before  the  gold 
discovery.  He  owned  a  block  in  Marysville 
when  the  place  was  platted  for  a  city,  and  has 
been  a  continuous  taxpayer  ever  since.  In 
1848-49  he  was  Indian  interpreter  at  Bidwell's 
Bar.  He  went  back  to  "the  States"  to  get  a 
schooling.  In  1861  he  was  graduated  from  the 
University  of  Missouri.     Returning  to  Marys- 


ville, he  was  admitted  to  the  bar  in  January, 
1863.  He  went  with  the  rush  to  Washoe  just 
then,  and,  in  the  following  August  was  admit- 
ted to  the  bar  of  the  Supreme  Court  of  Nevada 
territory.  Going  back  to  his  old  home  for 
good,  he  began  a  long  period  at  the  Marys- 
ville bar,  during  which  he  has  been  attorney 
in  over  2,000  cases.  He  was  several  times 
city  attorney,  during  the  construction  of  the 
levee  system,  was  collector  of  delinquent  taxes, 
and  compiled  and  codified  the  city  ordinances 
under  the  political  code.  He  has  been  court 
commissioner  for  over  twenty  years,  and,  in 
1894,  was  elected  district  attorney  as  the  can- 
didate of  the  People's  Party,  receiving  as  many 


votes  as  were  cast  for  both  candidates  of 
the  two  old  parties.  Mr.  Murphy's  career 
has  been  marked  by  exceptional  activity  and 
prosperity;  and  he  yet  seems  not  to  have 
passed  his  prime.  He  has  raised  a  family  of 
seven  children. 

Mr.  Murphy  was  born  in  west  Tennessee, 
January  15,  1836,  so  that  he  was  but  ten  years 
old  when  he  came  with  that  fated  party  across 
the  plains,  long  in  advance  of  the  gold-hunters. 
He  crossed  the  plains  again,  with  cattle,  in 
1854.  still  three  years  under  his  majority.  His 
last  trip  from  east  to  far  west  was  by  way  of 
the  isthmus,  in  1862.  He  is  a  member  of  the 
Society  of  California  Pioneers,  San  Francisco. 


CHARLES  E.  SUMNER. 

Charles  E.  Sumner  was  born  at  Moncton, 
New  Brunswick,  March  4,  i860.  He  comes  of 
an  old  English  family  of  that  name,  who  emi- 
grated in  the  early  days  to  New  England.  He 
received  his  education  in  the  common  schools. 
He  studied  law  at  Shediac  for  four  years,  and 
afterwards  attended  Boston  University  Law 
School.  From  that  school  he  was  graduated, 
as  LL.  B.,  in  1881.  He  then  traveled  in  Eu- 
rope for  a  year,  and,  in  1883.  came  to  Califor- 
nia, opening  a  law  office  at  Pomona.  There  he 
remained  until  1896.     Again  he  traveled  for  a 


History  of  the  Bench  and  Bar  of  California. 


989 


time  in  Europe,  returning  in  igoo,  when  he 
again  took  up  practice  in  Los  Angeles  city. 

While  in  Pomona  Mr.  Sumner  was  city  at- 
torney. He  devised  the  ordinance  of  that  city 
which  made  both  fine  and  imprisonment  com- 
pulsory in  case  of  conviction,  further  making 
it  an  ofifense  to  visit  saloons  run  in  violation  of 
law.  These  clauses  operated  to  make  the  law 
effectual. 

Mr.  Sumner  married,  in  1888,  Miss  Bessie 
Meserve  of  Santa  Cruz.  His  family  consists 
of  his  wife  and  two  children.  He  has  always 
enjoyed  a  large  and  valuable  practice. 


THOMAS   O.  TOLAND. 

Hon.  Thomas  O.  Toland,  member  of  the 
State  Board  of  Equalization,  and  very  promi- 
nent at  the  bar  in  the  southern  counties,  is  a 
native  of  Alabama,  and  was  born  in  the  year 
1857.  He  came  to  California  in  1875.  He 
was  graduated  from  the  State  University,  with 
the    degree    of   A.    B.,   and    afterwards   taught 


school  in  Ventura  for  several  years.  During 
the  great  "boom,"  he  was  in  the  real  estate 
business  in  Santa  Paula,  Ventura  county.  He 
prepared  for  the  bar  at  Hastings  College,  from 
which  he  was  duly  graduated,  and  began  the 
practice  at  Ventura  in  1889.  He  has  since 
been  district  attorney  of  Ventura  county,  and 
represented  the  county  in  the  assembly  at  the 
legislative  session  of  1897.  In  1895  he  formed 
a  law  partnership  with  Lewis  W.  Andrews, 
with  office  at  Ventura,  under  the  name  of 
Toland  &  Andrews.  This  still  continues,  al- 
though in  the  fall  of  1900,  Mr.  Andrews  (q. 
V.)    removed  to  Los  Angeles. 

Mr.  Toland  is  of  Democratic  politics.  He 
is  one  of  the  strongest  and  brightest  men  in 
his  profession  and  his  party  in  the  State.  He 
was  elected  to  his  present  office  as  a  member 
of  the  State  Board  of  Equalizaton  in  1898, 
although  his  district  was  and  is  strongly  Re- 
publican. He  is  a  man  of  learning  and  ad- 
dress, a  fine  speaker,  and  has  a  very  large 
practice,  banks,  oil  companies,  and  other  cor- 
porations being  among  his  clients. 


THE  JUNIOR  RANK 


da  i&cifa  Sa  1^  &  iSa  Si  S»  iSa 


HISTORY  of  the 
BENCH  ^nd  BAR 
of  CALIFORNIA 


The  JUNIOR  RANK 


NICHOLAS  A.  ACKER. 

Nicholas  A.  Acker  was  born  in  Washington, 
D.  C,  March  20,  1864.  He  was  admitted  to  the 
bar  there  in  1887.  He  located  in  San  Fran- 
cisco in  1889,  and  has  ever  since  practiced  in 
that  city,  making  patent  law  a  specialty.  He 
has  of  late  years  come  into  a  general  practice, 
disnlaying   much   ability   therein. 


HUGH  S.  ALDRICH. 

Hugh  Shafter  Aldrich,  whose  ancestors 
came  to  America  among  the  earliest  settlers, 
was  born  at  Galesburg,  Michigan,  May  20th, 
1861.  His  father,  Captain  Job  H.  Aldrich, 
was  killed  at  the  battle  of  Nashville,  Decem- 
ber 15,  1864;  his  brother.  Captain  James  H. 
Aldrich.  is  now  with  the  United  States  forces 
in   the   Philippine   Islands. 

Mr.  Aldrich  was  admitted  to  the  bar  by 
examination  before  the  Supreme  Court  of  Cal- 
ifornia, July  26,  1892,  and  immediately  com- 
menced the  practice  of  law  at  Oakland.  He 
is  a  nephew  of  the  old  bar  veterans  and  judges, 
Oscar  L.  Shafter,  and  James  McM.  Shafter, 
deceased,  and  Major  General  William  R.  Shaf- 
ter, U.   S.   A.     

WILLIAM  H.  ANDERSON. 

William  H.  Anderson  is  one  of  the  three 
lawyer  sons  of  the  distinguished  lawyer,  James 
A.  Anderson,  of  Los  Angeles,  who  is  noticed 
in  this  History.  Father  and  sons  are  practic- 
ing in  that  city,  under  the  firm  name  of  An- 
derson &  Anderson,  and  are  all  together,  except 
the  voungest,  C.  V.  Anderson,  who  conducts 
a  branch  office  at  Bakersfield. 

William  H.  Anderson  was  born  in  Tennes- 
see, in  1866.  He  is  of  Scotch-Irish  ancestry, 
and  a  descendant  of  Judge  William  H.  Trent, 
the  first  Chief  Justice  of  New  Jersey,  after 
whom  the  city  of  Trenton  was  named.  He  be- 
gan his  professional  career  in  California  in 
1889.  He  was  assistant  attorney-general  un- 
der General  W.  F.  Fitzgerald  for  four  years 
— January,  1895.  to  January,  1899. 


CHARLES  A.  ADAMS. 

Charles  A.  Adams,  son  of  ex-Judge  A.  C. 
Adams,  by  his  second  marriage,  was  born  at 
Mokelumne  Hill.  Calaveras  county,  California, 
November  25,  1867.  He  removed  to  San  Fran- 
cisco in  1876,  was  graduated  from  the  Univer- 
sity of  California  in  1887.  and  later  from  Hast- 
ings College  of  the  Law.  On  January  14,  1889, 
he  was  admitted  to  the  Supreme  Court  of  Cal- 
ifornia. In  February.  1891.  he  entered  into 
law  partnership  with  his  father,  under  the  firm 
name  of  Adams  &  Adams.  The  association  still 
continues. 


WILLIAM   M.  ABBOTT. 

William  M.  Abbott  was  born  in  San  Fran- 
cisco. California.  March  17.  1872.  He  comes 
from  good  English  and  Irish  stock.  His  pa- 
ternal grandfather  was  born  in  England,  and 
emigrated  to  Canada  in  1835.  His  maternal 
grandmother  was  born  in  northern  Ireland;  her 
father  was  an  officer  in  the  English  army  and 
served    under    Wellington    at    Waterloo. 

Mr.  Abbott's  parents  are  Canadians,  being 
born  in  the  province  of  Ontario.  Canada,  in 
i860.  They  moved  to  California  and  settled 
in  San  Francisco,  where  they  have  since  re- 
sided. 

Mr.  Al)b(>tt  received  his  education  in  the 
public  schools  of  this  State.  In  1890  he  en- 
tered the  Hastings  College  of  the  Law,  one 
of  the  affiliated  colleges  of  the  University  of 
California,  from  which  he  was  graduated  with 
distinguished  honors  in  1893.  During  his 
course  through  the  law  college  he  studied  in 
the  law  offices  of  Senator  C.  W.  Cross,  one 
of  the  recognized  leaders  of  the  California 
bar,  and  it  is  to  his  guidance  and  direction 
during  this  period  that  much  of  Mr.  Abbott's 
future  success  may  be  attributed.  After  gradu- 
ation from  the  law  college,  Mr.  Abbott  took 
an  extended  eastern  tour,  and  returning  in  the 
latter  part  of  i8o-».  commenced  the  practice  of 
the  law  at  the  First  National  Bank  building, 
loi    Sansome   street.      In    i8os.   he   became   as- 


994 


History  of  the  Bench  and  Bar  of  Califorjiia. 


sociated  in  the  practice  of  the  law  with  Sen- 
ator C.  W.  Cross.  Senator  Tirey  L.  Ford,  and 
Mr.  Frank  P.  Kelly,  of  Los  Angeles,  nnder 
the  firm  name  of  Cross,  Ford,  Kelly  &  Ab- 
bott. This  was  recognized  as  one  of  the  lead- 
ing law  firms  of  California.  Upon  dissolu- 
tion of  the  firm.  Mr.  Abbott  continued  his  law 
practice.  In  November,  1898.  Senator  Tirey 
L.  Ford  was  elected  attorney-general  of  Cali- 
fornia, and  in  January,  1899,  appointed  Mr. 
Abbott,  deputy  attorney-general,  from  San 
Francisco. 

The  attorney-general  assigned  Mr.  Abbott  to 
the  opinion  department  of  his  office,  and  he 
has  been  devoting  his  time  and  attention  to  that 
important  and  ever-increasing  branch  of  the 
attorney-general's   official   business. 

Mr.  -Abbott  is  among  the  promising  lawyers 


of  the  younger  generation,  who  are  rapidly 
coming  into  prominence  throughout  the  State, 
taking  the  jjlaces  made  vacant  by  the  death  of 
the  men  of  learning,  who  have  gained  emi- 
nence and  renown  in  the  building  up  of  the 
jurisprudence  of  the  commonwealth. 

In  April,  1900,  Mr.  Abbott  was  admitted  to 
practice  in  the  United  States  Supreme  Court ; 
whereupon  he,  with  Attorney-General  Ford, 
argued  the  railroad  tax  case  of  Smith  (as  re- 
ceiver of  the  Atlantic  &  Pacific  Railroad  Com- 
pany) vs.  Reeves,  State  treasurer  of  Califor- 
nia. 1  nis  case  was  subsequently  decided  in 
favor  of  the   State. 

Mr.  Abbott  has  been  a  mcml)er  of  the  Union 
League  Clul)  of  San  Francisco  since  1898. 


H.  P.  ANDREWS. 

Mr.  Andrews  was  born  in  Marion,  Missis- 
sippi. May  4.  1861.  His  father's  family  were 
descendants  of  John  Andrews,  who  came  to 
this  country  in  1640.  from  England,  having 
descended  originally  from  a  Scotch  family 
of  that  name.  Captain  Abraham  .Andrews, 
who  was  famous  in  the  Revolutionary  War, 
was  the  great  grandfather  of  H.  P.  Andrews. 
The   latter's    father,    William    Penn    Andrews, 


was  born  in  the  State  of  New  York  in  1825. 
When  a  boy  he  was  taken  by  his  parents  to 
Ohio,  where  he  was  reared.  When  barely  of 
age  he  and  his  brother,  G.  W.  Andrews,  who 
afterwards  became  a  prominent  Democratic 
politician  in  Ohio,  and  who  was  on  the  stand 
with  V^alandigham  when  the  latter  made  his 
famous  speech  which  caused  his  exile,  and 
who  also  became  a  brigadier-general  in  the 
Federal  army,  founded  the  Auglaize  County 
Democrat,  in  Wappokenetta.  Ohio,  which  pa- 
per still  exists. 

During  the  year  1849  the  father  of  our  sub- 
ject removed  to  Mississippi,  and  for  a  time 
engaged  in  journalism,  also  in  mercantile  and 
farming  pursuits.  There  he  was  married  to 
a  Southern  woman.  He  was  a  Union  Demo- 
crat, and  ardently  supported  Douglas.  He  en- 
listed in  the  Confederate  army  during  the  early 
part  of  1862,  and  was  made  captain  of  Com- 
pany I,  Thirty-seventh  Mississippi  Infantry.  He 
was  engaged  in  the  battle  of  luka,  and  in 
October,  1862,  was  killed  in  the  battle  of  Co- 
rinth. 

After  the  close  of  the  war,  Mrs.  Andrews, 
the  mother  of  H.  P.,  in  common  with  most 
other  Southern  people,  was  very  poor.  The  son 
was  reared  on  a  poor  farm  and  was  engaged 
as  a  farm  hand  from  his  earliest  recollection. 
At  the  age  of  fourteen  years  he  was  given 
charge  of  the  farm,  and  from  that  time  on 
supported  his  mother  and  sister.  His  educa- 
tion was  only  such  as  could  be  obtained  from 
the  Marion  Academy,  a  private  institution 
which  he  attended  after  saving  the  money  to 
pay  the  expenses  of  his  own  and  sister's  school- 
ing. 

Mr.  Andrews  began  the  study  of  law  several 
years  before  he  was  of  age,  while  still  on  the 
farm,  and  later  on  he  went  into  a  law  office, 
and  continued  his  reading.  He  was  admitted 
to  practice  by  the  Supreme  Court  of  Missis- 
sippi in  1882.  He  followed  the  profession  and 
engaged  in  journalism  until  1886,  when  he 
moved  to  Texas.  He  remained  there  until  Jan- 
uary, 1888,  when  he  came  to  California,  and 
settled  at  Red  Bluflf.  where  he  has  been  en- 
gaged in  the  practice  of  law  ever  since.  He 
has  had  a  large  business  for  many  years,  and 
good   success  and   prosperity. 

Mr.  Andrews  has  always  been  actively  en- 
gaged in  Democratic  politics,  and  usually  at- 
tends the  State  conventions,  and  meetings  of 
the  State  central  committee.  In  1894  he  was 
elected  district  attorney  of  Tehama  county,  and 
served  in  that  capacity  four  years.  At  the 
close  of  his  term  he  declined  to  become  a  can- 
didate for  re-election.  In  T898  he  was  the 
Democratic  nominee  for  attorney-general,  and 
went  down  with  his  ticket.  He  ran  several 
thousand  votes  ahead  of  the  average  vote  of 
his  oarty. 

Mr.  Andrews  was  married  in  189.^  to  Miss 
Lilly  Gay  of  Willows.  She  is  a  native  daugh- 
ter, and  a  direct  descendant  of  the  poet,  John 
Gay.  Her  ancestors  served  in  the  Revolution- 
ary War  with  distinction.  Mr.  Andrews  is 
past  grand  in  the  Odd  Fellows  Lodge  of  Red 
Blufi".   and   has   been   a   delegate   to   the   Grand 


History  of  flic  Bench  and  Bar  of  California. 


99o 


Lodge.  He  is  past  chief  ranger  of  tiie  For-  the  degrees  of  B.  S.  and  M.  S.  He  studied 
esters  of  America,  and  has  attended  several  law  in  the  office  of  Hon.  Barclaj^  Henley  (q.  v.) 
of  their  Grand  Courts.  He  is  also  a  Master  of  that  city,  attending  also  the  Hastings  Col- 
Mason.  lege  of  the  Law.  and  was  graduated  from  the 

law    college    with    the    degere    of    LL.    B..    in 
W.   A.   ANDERSON. 

W.  A.  Anderson,  of  Woodland,  was  born  in 
the  city  of  Sacramento,  on  August  6th.  1875. 
His  parents  dying  while  he  was  very  young, 
he  moved  to  Winters,  where  he  read  law,  and 
was  admitted  to  the  bar  on  December  28th, 
1896.  He  began  the  practice  of  law  in  the 
spring  of  iSgS,  in  Woodland,  and  the  follow- 
ing July,  sickness  overtaking  the  district  attor- 
ney of  Yolo  county,  the  Hon.  R.  E.  Hopkins, 
Mr.     Anderson     assumed     the    duties    of    the 


office,  and  held  the  position  until  the  expira- 
tion of  Mr.  Hopkins'  term  of  office.  On  the 
loth  day  of  April.  1899,  he  was  elected  city 
attornev  of  Woodland. 


RUSS  AVERY. 

Russ  Avery  was  born  in  Olympia,  the  capital 
of  Washington,  which  state  was  then  a  terri- 
tory. He  received  most  of  his  education  in  the 
State  of  California.  He  was  graduated  from 
the  Los  Angeles  High  School  in  1890.  and 
from  the  University  of  California  in  1894.  He 
attended  Hastings  Law  College  the  next  year, 
and  was  admitted  to  the  bar  in  1895.  He  then 
went  to  the  Harvard  Law  School,  where  he 
was  graduated  with  the  degree  of  LL.  B.  cum 
laudc  in  1897.  After  a  short  tour  in  Europe, 
he  opened  an  office  in  Los  Angeles,  where 
he  is  now  practicing  with  good  success.  His 
name  has  already  become  familiar  to  the  bar 
and  the  public. 


EDWARD  J.  BANNING. 

Mr.  Banning  is  a  native  of  the  great  city 
where,  at  the  age  of  twenty-five,  he  became  as- 
sistant United  States  attorney.  He  was  born 
Tune  6.  1873,  and  was  graduated  from  St.  Ig- 
natius   College.    San    Francisco,    in    1892.    with 


1895.  He  became  assistant  United  States  at- 
torney under  Hon.  Frank  L.  Coombs,  on  De- 
cember I.  1898,  and  is  still  occupying  that 
important  position. 

LEWIS  W.  ANDREWS. 

Lewis  W.  Andrews,  of  the  Los  Angeles  bar, 
was  born  at  Mt.  Vernon.  Missouri,  April  22, 
1869.  Mr.  Andrews  comes  of  a  family  of  law- 
yers, i-iis  father.  Lindley  M.  Andrews,  prac- 
ticed law  in  Missouri  and  Kansas  for  a  num- 
ber of  years.  His  two  older  brothers,  Horace 
and  A.  V.,  comprise  the  firm  of  Andrews 
Brothers  of  Norwalk.  Ohio,  who  are  well 
known  through  northern  Ohio  as  attorneys 
and    advocates    of    great    ability. 

Lewis  W.  Andrews  received  his  early  edu- 
cation in  the  public  schools  of  Ohio  and  Illi- 
nois, which  was  su])plemented  by  a  course  in 
the  collegiate  dei)artment  of  the  Northern  Illi- 
nois Normal  School  at  Dixon,  Illinois,  from 
which  institution  be  graduated  in  1887,  with 
the  degree  of  d.  S.  He  studied  law  for  a  num- 
ber of  years  under  the  tuition  of  his  father 
and  his  brothers,  and  subsequently  with  Hon. 
B.  T.  Williams,  Superior  Judge  of  Ventura 
county. 

He  has  been  a  resident  of  California  for 
about  twelve  years,  during  which  time  be  has 
been  identified  with  many  of  the  new  and 
progressive  enterprises  of  Southern  Califor- 
nia. In  the  fall  of  1891  he  became  the  secre- 
tary of  Throop  Polytechnic  Institute  of  Pasa- 
dena, being  the  first  incinnbent  of  that  ])osi- 
ti(in,  wliicli  he  held  for  two  years,  during 
which  time  lie  was  also  instructor  in  history. 
In  1895  Mr.  Andrews  settled  in  Ventura, 
where  he  formed  a  nartnership.  for  the  prac- 
tice of  law,  with  Hon.  T.  O.  Toland  (at 
nrosent  nu'ml)er  of  the  State  Board  of  Equal- 
ization), under  the  firm  name  of  Toland  & 
.Xndrews.   wlio  durin:.;   the  past   six  years  have 


996 


History  of  the  Bench  and  Bar  of  California. 


been  attorneys  for  the  American  Beet  Sugar 
Company,  owners  of  the  great  factories  at  Ox- 
nard  and  Chino ;  Bank  of  Uxnard,  Santa  Paula 
Water  Works,  and  other  leading  corporations 
of  Ventura  county.  Tlie  firm  enjoyed  a  large 
and  lucrative  practice. 

In  the  fall  of  igoo  being  tendered  the  client- 
age   of    a    number    of    corporations.    Mr.    An- 


salt  water,  before  the  mast,  and  afterwards  set- 
tled in  San  Francisco,  California,  where  he 
occupied  responsible  mercantile  positions  until 
1894.  ^f"  that  year  he  commenced  the  study  of 
law  in  the  office  of  Allen  &  Flint,  Los  Angeles. 
He  was  admitted  to  practice  by  the  Supreme 
Court  of  California  in  April,  1896,  and  re- 
mained in  the  office  of  Allen  &  Flint  until  the 


drews  moved  to  the  city  of  Los  Angeles  to  en- 
gage further  in  the  practice  of  his  chosen 
profession,  and  is  now  the  legal  representa 
tive  of  a  number  of  the  wealthiest  corporations 
in  Southern  California.  His  practice  is  large 
and  general,  his  time  being  occupied  prin- 
cipally  by   corporation   and   civil   busness. 

As  has  been  stated  before  in  this  History. 
"The  modern  lawyer  is  essentially  a  man  of 
afifairs."  This  is  true  of  Mr.  Andrews,  who 
is  essentially  a  business  lawyer.  While  he  has 
been  very  successful  as  a  trial  lawyer,  yet 
his  reputation  has  been  established  not  so 
much  by  his  ability  to  try  causes  for  his  clients 
as  his  success  in  advising  them,  and  skill  in 
managing  their  afifairs  in  such  manner  that  a 
resort  to  the  courts  is  seldom  necessary.  He 
holds  ofificial  positions  in  the  Los  Angeles 
Herald,  the  Pacific  Electrical  Works.  Colo- 
nia  Improvement  Company.  Bank  of  Oxnard. 
and  other  corporations,  of  which  he  is  the  legal 
adviser. 

In  1892  Mr.  Andrews  was  married  to  Miss 
Abbie  Crane  of  Ventura  county.  He  has  two 
children,  a  boy  and  a  girl.  He  is  a  Repub- 
lican in  politics.,^ 


DONALD   BARKER. 


Donald  Barker  of  the  firm  of  Flint  &  Barker 
was  born  at  Hartley,  Ontario,  Dominion  of 
Canada,  March  13,  1868.  His  father  was  Wil- 
liam Barker,  a  merchant,  who  died  when  our 
subject  was  two  years  old.  The  son  removed 
to  Rochester,  New  York,  when  eleven  years  of 
age,  and  attended  the  public  schools  there  and 
at   Cleveland,   Ohio.     He   spent   two  years   on 


dissolution  of  that  firm,  in  the  same  year,  by- 
reason  of  the  election  of  Judge  M.  T.  Allen 
to  the  Superior  bench,  and  the  appointment 
of  Frank  P.  Flint  to  the  office  of  United  States 
attorney  for  the  southern  district  of  California. 
A  new  partnership  was  then  formed  with  Mr. 
Flint,  which  still  continues.  The  firm  has  the 
business  of  several  financial  institiuions,  and 
enjoys  a  large  practice. 


WALTER  J.   BARTNETT. 

Walter  J.  Bartnett  was  born  at  Pacheco, 
Contra  Costa  county,  California,  May  22,  1866. 
He  was  educated  at  the  Boys'  High  School, 
San  Francisco,  the  University  of  California 
(College  of  Letters),  and  the  Hastings  Col- 
lege of  the  Law,  receiving  from  the  university 
the  degree  of  A.  B.,  and  from  the  law  college 
that  of  LL.  B.  He  was  admitted  to  the  bar 
of  the  State  Supreme  Cpurt,  in  June,  1890,  and 
began  practice  at  San  Francisco.  In  1895  he 
l)ecame  a  member  of  the  old-established  law 
firm  of  Guimison  &  Booth,  which  still  con- 
tinues as  Gunnison,  Booth  &  Bartnett.  This 
native  son  is  a  man  of  higii  ideals  and  the 
purest  character,  and  attained  at  an  excep- 
tionally early  age  a  prominent  place  in  his  pro- 
fession and  a  large  practice.  We  have  watched 
his  course  with  much  interest  from  its  begin- 
ning, in  i8go. 

WILLIAM  A.  BEATTY. 

William  .Adam  Beatty  was  born  December 
23,  1861.  of  Irish  parentage,  his  father  being 
a  capitalist.     Fie  is  a  graduate  of  the  University 


Histoi'v  of  the  Bench  and  Bar  of  Califoriiia. 


997 


of  California,  and  was  admitted  to  the  bar  by 
the  Supreme  Court  at  San  Francisco,  June  30, 
1887.  He  has  ever  since  been  engaged  in  law 
practice  in  that  city.  He  is  a  very  compe- 
tent attorney,  a  man  of  strong  character,  well- 
liked,  and  has  been  busy  and  successful  at  the 
bar.  

WILL  M.   BEGGS. 

Among  the  younger  members  of  the  bar  at 
San  Jose  we  find  Will  M.  Beggs,  who  occupies 
a  suite  of  three  offices  in  the  Knox  block.  He 
was  born  September  2,  1867,  in  Mercer  county, 


Pennsylvania.  His  early  life  was  spent  "go- 
ing west"  in  a  covered  wagon,  with  the  other 
members  of  his  family,  and  in  that  way  he  trav- 
eled over  Tennessee,  Iowa,  Kansas  and  Mis- 
souri, arriving  finally  in  the  beautiful  Santa 
Clara  Valley,  at  the  age  of  six  years.  Be- 
tween attending  the  district  school  and  doing 
"chores"  at  home  on  the  farm,  his  time  was 
occupied  until  he  was  about  sixteen,  when  for 
two  summers  he  was  employed  as  storekeeper 
at  one  of  the  large  lumber  mills  near  the  Yo- 
semite  Valley.  At  eighteen  he  passed  the 
"county  examination,"  and  received  a  certi- 
ficate entitling  him  to  teach  school.  He  taught 
his  first  and  last  school  four  terms,  and  de- 
clined a  further  engagement  for  the  oppor- 
tunity of  more  lucrative  employment  in  farm- 
ing, to  which  occupation  he  turned  his  atten- 
tion in  the  fall  of  1888.  In  that  year,  with  the 
assistance  of  three  other  parties,  he  built  the 
first  successful  cheese  factory  in  then  Tu- 
lare, but  now  Kings  county,  California.  This 
employment  soon  grew  irksome,  and  in  the 
spring  of  1889  the  ranch  was  sold  and  the  pro- 
ceeds invested  in  a  retail  mercantile  business 
in  Los  Gatos.  A  successful  business  was  soon 
established,  and  continued  for  over  a  year,  un- 
til, in  April.  1890,  it  was  wiped  out  by  a  dis- 
astrous conflagralion.  which  entailed  a  very 
heavy  loss. 

During    the    sunnner    nf     1891.    there    being 
no   o])ening   that    seemed   to   invite    investment. 


and  after  a  very  careful  survey  of  the  future 
and  the  opportunities  open  to  a  young  man 
without  trade  and  no  special  occupation,  with 
a  growing  family  on  his  hands,  Mr.  Beggs 
concluded  to  try  the  law  as  a  profession,  and 
for  that  purpose,  in  the  company  of  his  wife 
and  child,  he  spent  the  two  years  ending  June 
30,  1893,  at  Ann  Arbor,  Michigan,  upon  which 
latter  day  he  graduated  with  honors  from  the 
law  department  of  the  famous  university  in  a 
class  of  325  law  graduates. 

Immediately  after  graduating  he  returned  to 
Los  Gatos,  Santa  Clara  county,  where  he  made 
his  home  for  the  next  seven  years,  but  main- 
tained his  office  at  San  Jose.  During  that  pe- 
riod he  occupied  the  position  of  city  attorney 
of  Los   Gatos. 

In  the  fall  of  1800,  as  his  practice  was  in- 
creasing to  such  an  extent,  Mr.  Beggs  moved 
to  San  Jose,  where  he  now  resides,  and  exoects 
to  make  it  his  home.  He  has  one  of  the  finest 
offices'  in  San  Jose,  and  has  one  of  the  largest 
practices  of  the  125  attorneys  in  that  city. 
While  devoting  most  of  his  attention  to  gen- 
eral practice,  he  has  found  time  to  become  in- 
terested in  oil  and  mining,  from  which  invest- 
ments he  has  come  out  many  thousands  of 
dollars  ahead.  He  has  push  and  energj'  and 
is  very  attentive  to  the  details  of  his  cases 
and  to  this  alone  does  he  attribute  his  success 
in  his  chosen  profession. 


RICHARD  BELCHER. 


Richard  Belcher  was  born  at  Marysville,  in 
this  State,  on  January  17,  1868.  He  was  grad- 
uated from  Amherst  College  in  1889,  with  the 
degree  of  A.  13..  and  from  Hastings  College 
of   the   Law   in    1892,   with   the   degree  of  LL. 

B.  He  has  been  in  practice  at  Marysville  since 
July,  1892. 

Mr.  Belcher  has  been  referee  in  bankruptcy 
since  August,  1898,  when  he  was  appointed  by 
United  States  District  Judge  Dc  Haven.  He 
was  annointed  a  trustee  of  Chico  State  Nor- 
mal School,  by  Governor  Gage,  in  May,  1899. 
He  has  been  in  charge  of  the  estate  of  Judge 
Isaac  S.  Belcher  since  the  latter's  death,  in 
November,    1898. 

Mr.  Belcher's  father  was  Isaac  S.  Belcher, 
just  named,  once  Judge  of  the  Supreme  Court 
of  California.  His  mother,  Mrs.  Adeline  N. 
Belcher,  is  living,  and  resides  in  San  Fran- 
cisco. She  is  the  eldest  daughter  of  the  late 
William  T.  Johnson,  cashier  of  the  Granite 
National  Bank  of  Augusta,  Maine,  sometime 
speaker  of  the  house  of  representatives  of 
Maine,  mayor  of  the  city  of  Augusta,  etc.     W, 

C.  Belcher,  late  of  the  San  Francisco  law  firm 
of  Mastick,  Belcher  &  Mastick.  and  Hon.  E. 
A.  Belcher,  recent  Superior  Judge  of  the 
city  and  county  of  Snii  Francisco,  were  uncles 
of  his. 

Mr.  Belcher  was  united  in  marriage  to  A. 
Josephine  Ward,  at  Amherst.  Massachusetts, 
on  June  6.  1892.  and  has  two  children.  He  is 
a  Knight  Templar,  and  a  thirty-second  degree 
Mason.  He  has  proven  worthy  of  his  heritage, 
and  turned  his  splendid  opportunities  to  good 


998 


History  of  the  Bench  ami  Bar  of  California. 


account.  He  is  a  strong,  steady,  self-possessed 
character,  and  at  the  age  of  thirty-three  holds 
an   advanced   place   in   the  profession. 


THEODORE  A.  BELL. 

The  present  District  Attorney  of  Napa 
county,  was  born  in  the  city  of  Vallejo,  Cali- 
fornia, on  the  25th  day  of  July,  1872.  At  the 
age  of  nineteen  he  became  a  teacher  in  one  of 
the    public    schools    of    his    county,    and    while 


engaged  in  this  pursuit  prepared  himself  for 
admission  to  the  bar.  At  his  majority  he  suc- 
cessfully passed  an  examination  before  the 
Supreme  Court.  One  year  later  he  was  nom- 
inated for  district  attorney  by  the  Demo- 
cratic party.  Although  the  county  gave  the 
head  of  the  Republican  ticket  a  majority  of 
over  five  hundred,  he  was  elected  by  a  ma- 
jority of  over  four  hundred.  After  serving 
four  years  he  was  again  nominated  for  the 
same  office  in  1898,  and  re-elected  by  a  large 
majority.  His  present  term  will  expire  in 
January,    1903. 

ALLAN   BRANT. 

Allan  Brant,  of  the  law  firm  of  Brant  & 
Brown,  of  San  Jose,  is  a  native  of  Michigan 
and  passed  through  the  common  schools 
of  that  State.  He  graduated  from  the  Benton 
Harbor  College  with  the  class  of  '89  and  after 
wards  taught  in  the  public  schools  in  Michigan 
and  Indiana  until  the  summer  of  1894.  In  th : 
fall  of  '94  he  entered  Stanford  University  and 
remained  there  one  year  in  the  study  of  law. 
In  December,  1895,  he  was  admitted  on  exam- 
ination before  the  Supreme  Court,  to  the  bar 
of  California,  and  In  the  following  !<"ebruary 
took  up  the  practice  of  law  in  San  Jose.  In 
January,  1897,  he  formed  a  law  partnership 
with  F.  B.  Bown,  which  still  continues. 

When  the  war  with  Spain  broke  out,  Mr. 
Brant  enlisted  in  the  First  California  U.  S. 
volunteer  infantry,  and  went  with  his  regi- 
ment to  the  Philippine  Islands,  where  he  served 


in  the  Spanish-American  war,  1898,  and  in  the 
Filipino-American  war,  1899.  Among  engage- 
ments participated  in  by  him  were  the  assault 
on  the  capture  ni  Manila  from  the  Spanish, 
August  13,  1898,  and  the  engagement  with  the 
Filipino  enemy  at  Patcros.  February  14.  1899. 
At  the  latter  engagement  he  received  a  severe 
gunshot  wound  in  the  shoulder,  in  the  charge 
UDon  the  enemy,  and  was  carried  from  the 
field.  From  that  time  he  was  in  the  hospital 
at  Manila  until  May  22nd,  when  he  was  dis- 
charged for  disability  from  the  effects  of  his 
wound.  He  still  carries  the  bullet  somewhere 
in  his  body,  a  constant  reminder  of  his  thrilling 
experience.  .^fter  his  discharge  he  visited 
China  and  Japan  and  later  returned  to  San 
Jose,  California,  where  he  resumed  his  old 
place  in  the  firm  of  Brant  &  Brown. 

A  letter  received  by  the  publisher  of  this 
History  under  date  of  January  16,  1901.  jointly 
signed  by  Messrs.  F.  B.  Brown  and  Allan 
Brant,  states  that  they  have  dissolved  partner- 
ship. 


J.    H.    BIDDLE. 


Julian  Hiester  Biddle,  of  San  Jose,  was  born 
in  the  old  and  picturesque  town  of  Elkton, 
the  county  seat  of  Cecil  county,  Maryland,  and 
situated  on  the  eastern  shore  of  that  State, 
on  the  13th  day  of  August,  1874. 

His  family  has  been  represented,  since  the 
early  history  of  the  country,  in  legal  and  mili- 
tary circles. 


<l 


Coming  to  San  Jose,  from  the  Old  Line  State 
in  his  early  boyhood,  he  attended  the  public 
schools  and  the  University  of  the  Pacific;  and 
after  studying  law  under  his  father,  Noble  T. 
Biddle,  Esq..  he  was  admitted  to  practice  as  an 
attorney  and  counsellor  by  the  Supreme  Court 
sitting  at  San  Francisco,  January  3,  i8gi8.     ._ 

Mr.  Biddle  is  now  practicing  law  with  his 
father,  as  a  member  of  the  firm  of  Biddle  & 
Biddle.  in   Paul  block,  San  Jose. 


p.  A.  Bergerot 


History  of  the  Bench  and  Bar  of  California. 


1001 


P.    A.    BERGEROT. 

P.  Alexander  Bergerot  was  born  in  San 
Francisco,  February  5th,  1867,  of  French  par- 
entage. He  received  his  preliminary  education 
'n  the  public  schools  of  San  Francisco,  grad- 
uating first  from  the  Lincoln  Grammar,  and 
later  from  the  Lowell  high  school.  In  both 
institutions  he  stood  at  the  head  of  his  class. 
He  then  went  to  France  to  perfect  himself 
in  the  French  language.  He  graduated  from 
the  Lyceum  of  Pau  and  the  Bordeaux  branch 
of  the  University  of  France  in  1889,  with  the 
degree  of  bachelor  of  letters.  On  his  return 
to  San  Francisco  in  1889,  he  took  a  complete 
course,  under  Professors  E.  W.  McKinstry 
and  Charles  W.  Slack,  in  the  Hastings  College 
of  Law,  ranking  No.  i  on  graduating  there- 
from. Since  July,  1892,  he  has  been  actively 
engaged  in  the  practice  of  his  profession. 
He  has  an  extensive  business  among  both 
French  and  Americans  throughout  the  State. 

In  politics  he  has  made  himself  popular  and 
well-known  by  his  services  and  speeches  for 
the  Reoublican  party,  and  in  his  advocacy  of 
pure  politics.  He  has  been  a  member  of  the 
Republican  State  committee  occasionally  and 
of  many  State  and  municipal  conventions. 
He  was  a  member  of  the  recent  charter  con- 
vention of  San  Francisco.  In  1892  he.  was 
called  upon  to  deliver  an  oration  in  English  at 
the  celebration  of  the  14th  of  July  in  San  Fran- 
cisco. In  1893,  he  delivered  the  funeral  ora- 
tion in  English,  at  the  Mechanics'  pavilion, 
before  an  audience  of  over  ten  thousand  peo- 
ple, on  the  occasion  of  the  obsequies  held  in 
memory  of  the  murdered  president,  Carnot. 
In  1897,  he  was  selected  president  of  the  dav 
for  the  14th  of  July  celebration,  and  in  1890 
grand  French  orator  of  the  day. 

In  1898,  he  was  elected  school  director  on 
the  Republican  ticket,  and  chosen  as  president 
of  the  board  of  education  of  San  Francisco. 


BENJAMIN  F.  BLEDSOE. 

Benjamin  F.  Bledsoe  was  born  in  San  Ber- 
nardino, California,  in  February,  1874.  He  at- 
tended the  public  schools  of  that  city,  and  was 
graduated  from  the  High  School  thereof  in 
1891.  He  entered  Stanford  University  in  1892, 
graduating  from  the  departments  of  history, 
economics  and  law  in  1896.  While  in  Stan- 
ford Mr.  Bledsoe  took  great  interest  in  inter- 
collegiate debating,  being  himself  on  the  reg- 
ular Stanford-California  debate  in  his  junior 
year.  He  took  his  examination  before  the 
Supreme  Court  in  Los  Angeles  in  October  of 
1896,  and  immediately  entered  upon  the  prac- 
tice of  his  profession  in  his  native  city  in  part- 
nership with  his  father,  R.  E.  Bledsoe.  Their 
practice  has  been  general,  and  extends  over 
all  the  southern  counties  of  the  State.  In  i8g8 
Mr.  Bledsoe  was  appointed  referee  in  bank- 
ruptcy by  Judge  Welll)orn.  In  August,  1900, 
upon  the  earnest  solicitation  of  his  friends,  he 
was  a  candidate  before  the  Democratic  county 
convention  for  the  nomination  for  Superior 
Judge.     He   was   opposed   for   the   nomination 


by  two  of  the  leading  and  most  prominent 
lawyers  of  the  county,  yet,  after  a  hard  fight, 
he  gained  the  coveted  honor.  The  campaign 
that  ensued  was  the  hardest  ever  fought  in 
San  Bernardino  county,  which  is  evidenced 
by  the  fact  that,  although  the  Republican  ma- 
jority in  that  election  was  about  800,  yet  the 
vote  on  Superior  Judge  between  Mr.  Bledsoe 
and  his  Republican  opponent  resulted,  appar- 
ently, in  a  tie.  Proceedings,  begun  by  Mr. 
Bledsoe,  to  contest  the  result  declared,  and  to 
adjudge  him  entitled  to  the  office  are  still  pend- 
ing, and  his  friends  maintain  that  they  will  yet 
call   him  "Judge." 

John  L.  Campbell  is  the  defendant  in  this 
case.  Judge  Campbell,  however,  was  not  a 
candidate  for  the  office  at  the  last  election ;  he 
is  "holding  over,"  having  been  one  of  the  Su- 
perior Judges   for   the   full   term  of   six  years. 

At  the  recent  election  there  were  three  can- 
didates :  B.  F.  Bledsoe,  Democratic ;  C.  C. 
Bennett,  Republican,  and  E.  E.  Duncanson,  So- 
cialist. Bledsoe  and  Bennett  each  received 
2864  votes,  and  Duncanson  154  votes.  The 
board  of  supervisors  declared  a  tie  vote,  and 
consequently  there  could  be  no  statutory  con- 
test instituted,  and  the  present  proceeding  was 
begun  in  lieu  thereof.  It  is  a  statutory  pro- 
ceeding, in  the  nature  of  a  writ  of  quo-war- 
ranto  at  common  law,  or,  rather,  a  modifica- 
tion of  that  remedy,  as  provided  by  sections 
803  to  810,  inclusive,  of  the  Code  of  Civil  Pro- 
cedure, and  is  brought  for  the  double  purpose 
of  testing  the  right  of  John  L.  Campbell  to 
hold  the  office,  and  also  to  establish  the  right 
of  B.  F.  Bledsoe  to- the  same.  It  is  an  open 
question  in  this  State  as  to  whether  a  recoimt 
of  the  ballots  cast  at  the  election  can  be  had 
in  this  sort  of  proceeding,  or  in  any  case  where 
a  tie  has  been  declared  by  the  canvassing  board. 

Mr.  Bledsoe  married,  in  1899,  Miss  Katherine 
M.  Shepler,  Stanford  '98,  who  was  a  resident 
of  Council   Bluffs,   Iowa. 


F.  B.  BROWN. 


F.  B.  Brown,  of  the  firm  of  Brant  &  Brown, 
California,  was  born  and  raised  on  an  Illinois 
farm,  where  he  attended  the  common  district 
school  in  winter  and  worked  on  the  farm  during 
the  busy  season.  He  graduated  from  the  (ialva 
high  school  in  1881  and  from  Knox  College, 
Galesburg.  Illinois,  as  a  member  of  the  class 
of  '85.  He  soon  removed  to  western  Kansas 
and  was  one  of  the  first  settlers  in  what  was 
afterwards  Grant  county,  where  he  engaged 
in  farming  and  stock  raising,  and  at  the  same 
time  acquired  title  to  a  considerable  tract  of 
government  land  by  occupation,  residence  and 
cultivation.  I^pon  the  organization  of  the 
county  in  t888,  he  was  elected  its  first  county 
superintendent  of  schools,  and  was  twice  re- 
elected, holding  that  office  until  January,  1893, 
diu-ing  which  time  he  also  busied  himself  in 
studying  law.  He  also  occupied  a  seat  in  the 
lower  house  of  the  Kansas  legislature. 

Mr.  Brown  came  to  California  in  1893.  and, 
still  prosecuting  the  study  of  law,  was  ad- 
mitted before  the  California  Supreme  Court  in 


1002 


History  of  the  Bench  and  Bar  of  California. 


1895.  He  began  practice  in  San  Jose.  In  Jan- 
uary, 1897,  he  formed  his  present  patnership 
with  Allan  Brant,  and  has  since  been  actively 
engaged  in  practice.  In  1888  Mr.  Brown  mar- 
ried May  L.  Miller  of  Rock  Island,  Illinois, 
and  has  three  children,  all  boys. 

A  letter  received  by  the  publisher  of  this 
History  under  date  of  January  16,  1901,  jointly 
signed  by  Messrs.  F.  B.  Brown  and  Allan 
Brant,  states  that  they  have  dissolved  partner- 
ship.   

HENLEY   C.   BOOTH. 

Henley  Clifton  Booth  was  born  in  St.  Clair 
County.'  Missouri,  December  24,  1873.  His 
paternal  great-grandfather  was  in  the  Colonial 
army  in  the  Revolution,  his  paternal  grand- 
father in  the  United  States  army  in  the  War 
of  1812.  His  father  and  two  of  his  father's 
brothers  were  in  the  Union  army  in  the  Ciyil 
War.  One  of  his  father's  brothers  was  in  the 
Confederate  army.  His  maternal  grandfather 
was  in  the  United  States  army  during  the 
war  with  Mexico.  In  1885  his  parents,  Robert 
L.  and  Maria  J.  Booth,  came  from  Missouri 
to  California,  locating  at  Los  Alamos,  Santa 
Barbara  county,  living  there  for  a  year,  and 
thence  removing  to  Santa  Barbara  where 
thev  have  since  resided.  He  attended  the 
public  schools  of  Santa  Barbara,  graduating 
from  the  high  school  in  May,  1890,  from 
which  time  until  his  admission  to  the  Cali- 
fornia Supreme  Court  in  April,  1895,  he  was 
engaged    in    newspaper    and    magazine    work. 


secret  orders  and  an  ensign  in  the  Naval  Mili- 
tia, National  Guard  of  California,  in  which 
organization   he  takes  much  interest. 


and  in  the  study  of  law  in  the  office  of  B. 
F.  Thomas,  Esq.,  of  Santa  Barbara.  He  has 
practiced  his  profession  at  Santa  Barbara 
since  his  admission  to  the  bar.  Early  in 
June,  1898.  Mr.  Booth  enlisted  as  a  private  in 
Company  "H,"  Seventh  California  U.  S.  Vol- 
unteers, and  was  discharged  with  his  regi- 
ment in  December,  1898,  as  a  corporal.  In 
December,  1899,  he  was  elected  city  attorney 
of  Santa  Barbara,  taking  office  January  i, 
1900,  as  the  first  city  attorney  under  the  new 
charter,  which  took  effect  at  the  same  time, 
Mr.    Booth    is    a    member   of   a   number   of 


WILLIAM  I.  BROBECK. 

William  Irwin  Brobeck  was  born  in  Roches- 
ter, Pennsylvania,  on  the  17th  day  of  July, 
1869,  of  Scotch-German  parentage.  He  came 
with  his  parents  to  California  when  a  lad  of 
six  years,  and  with  them  settled  in  Nevada 
City,  where  he  received  his  early  education.  He 
removed  to  San  Francisco  and  completed  the 
high  school  course  in  that  city,  afterwards 
entering  Hastings  College  of  the  Law,  from 
which  institution  he  was  graduated  in  1892. 
In  January.  1893,  he  received  the  appointment 


of  assistant  city  and  county  attorney  of  San 
Francisco  from  the  Hon,  Harry  T.  Cresswell. 
which  office  he  has  filled  under  several  consecu- 
tive administrations  to  the  present  time. 

Mr.  Brobeck  comes  of  a  family  of  lawyers. 
His  great  grandfather,  William  Irwin,  occu- 
pied the  Superior  bench  of  Beaver  county, 
Pennsylvania,    for    thirty    years. 

Mr.  Brobcek  has  in  the  course  of  his  offi- 
cial career  successfully  conducted  much  im- 
portant litigation.  He  has  proved  himself  a 
lawyer  of  sound  principles,  well  versed  in  the 
law,  a  close  reasoner,  and  hard  student.  He 
is. a  prominent  member  of  the  I.  O.  O.  F.,  and 
various    other   fraternal    organizations. 


JUDSON   BRUSIE. 


Judson  Brusie,  a  member  of  the  Sacramento 
bar,  is  a  native  of  La  Porte,  Indiana,  born 
March  28,  1864,  his  parents  being  Luther  and 
Margaret  (Coffin)  Brusie.  Luther  Brusie  was 
born  at  Winsted,  Litchfield  county,  Connecti- 
cut, January  21,  1822,  and  was  a  son  of  a  sol- 
dier of  the  War  of  1812,  and  grandson  of  a 
Revolutionary  veteran,  while  his  great-grand- 
father   served    in    the    colonial    forces    in    the 


^- 


William  A.  Boivden 


History  of  the  Bench  and  Bar  of  California. 


1005 


Frcncli  and  Indian  \\'ar>.  He  (Luther  Bru- 
sie )  came  to  Indiana  when  young,  with  Tiis 
parents.  After  finishing  his  common  school 
education,  he  began  the  study  of  medicine,  and 
on  the  27th  of  February.  1847,  was  graduated 
at  Indiana  Medical  College,  Indianapolis.  In 
the  fall  of  1850  he  came  out  to  California 
across  the  plains,  and  engaged  in  merchandise 
at  Put's  Bar.  in  Amador  county.  In  1854  he 
went  back  to  Indiana,  and  gave  his  atten- 
tion to  the  practice  of  his  profession  until  the 
breaking-out  of  the  Civil  Wht.  He  offered  his 
services  in  behalf  of  his  country,  and  on  the 
22d  of  October.  1861.  was  commissioned  by 
Governor  Oliver  P.  Morton  as  assistant  sur- 
geon of  the  Forty-tifth  regiment  (Third  cav- 
alry) Indiana  volunteers.  In  consequence  of 
injuries  received  in  action,  he  was  honorably 
discharged  from  the  service.  In  i86q  he  again 
came  to  California,  bringing  his  family,  via 
Panama.  He  located  in  Amador  county,  where 
he  was  a  physician  of  high  standing  and  a 
prominent  citizen  until  his  death,  which  oc- 
curred in  May.  1887.  He  v/as  a  stalwart 
Republican,  and  devoted  to  the  interests  of 
his  party.  He  represented  the  vlistrict  in  which 
he  resided  in  the  State  legislat':re  of  1880.  He 
was  an  active  member  of  the  State  Medical 
Society,  and  of  the  Grand  Army  of  the  Re- 
public. 

Judson  Brusie.  with  whose  name  this  sketch 
commenres,  was  reared  in  Amador  county, 
and  educated  there  and  at  the  University  of 
the  Pacific,  in  which  institution  he  took  the 
Latin  and  scientific  course.  He  commenced 
reading  law  with  Judge  A.  P.  Catlin,  and 
continued  his  legal  studies  in  the  office  of 
Clunie  &  Knight.  San  Francisco.  He  then 
returned  to  Amador  county,  and  was  there 
admitted  to  the  bar  in  1885.  Mr.  Brusie  rep- 
resented Amador  county  in  the  legislature  of 
1887-88,  being  the  youngest  member  of  the 
assembly,  and  he  has  since  reoresented  Sacra- 
mento county  in  the  same  body  in  the  twenty- 
ninth    and    thirty-first   sessions. 


WILLIAM  A.  BOWDEN. 

This  gentleman  was  born  in  Western  New 
York,  in  December,  1864.  In  early  youth  he 
moved  with  his  parents  to'  Southern  Indiana, 
and  in  the  public  schools  of  that  state  were 
laid  the  first  foundations  of  the  training  and 
education  that  marked  his  after  life.  In  1876, 
while  yet  a  mere  youth,  Mr.  Bowden  moved 
to  this  State,  finally  locating  at  San  Jose, 
where  his  father  engaged  in  farming.  In  tho 
excellent  pu])lic  schools  of  that  city,  and  im- 
der  the  tutelage  of  able  professors  at  Santa 
Clara  College.  Mr.  Bowden's  school  training 
was  completed.  The  Supreme  Court  of  Cali- 
fornia admitted  him  to  the  practice  of  law 
in  1886.  although  he  did  not  actively  engage 
in  practice  until  four  years  later.  During  tlie 
interim  he  entered  into  public  life,  serving  as 
court  clerk  under  the  late  Francis  E.  Spen- 
cer, then  judge  of  the  Superior  Court  of  Santa 
Clara  county. 

Upon  the  expiration  nf  his  term  of  ofifice. 
Mr.    Bowden    immediately    went    into    practice. 


locating  in  the  Bank  of  San  Jose  building, 
where  he  has  ever  since  maintained  his  of- 
fice. He  took  rank  at  once  among  the  ablest 
members  of  a  bar  regarded  as  one  of  the  best 
in  California,  and  composed  mostly  of  men 
older  than  himself.  The  celerity  of  his  as- 
cent to  distinction  in  his  profession  may  be 
inferred  from  the  fact  that  at  this  time  many 
of  the  largest  corporate  interests  of  the 
wealthy  and  populous  county  of  Santa  Clara 
are  guided  by  his  judgment.  In  both  his  pri- 
vate and  professional  life  Mr.  Bowden  is 
known  as  a  man  of  positive  character;  strong 
in  his  convictions  and  fearless  and  forceful  in 
expression,  his  has  not  alwaj-s  been  a  path 
of  roses.  But  all  this  has  been  compensated 
for  by  the  highest  measure  of  professional 
success.  In  1894  Mr.  Bowden  was  married 
to  Alice  I.  Hobbs.  the  yoimgest  daughter  of 
Celden  X.  Hobbs,  one  of  the  pioneers  of  Cali- 
fornia. 

HENRY  E.  CARTER. 

Mr.  Carter  is  one  of  a  number  of  promi- 
nent members  of  the  Los  Angeles  bar  who  are 
natives  of  California.  He  was  born  Septem- 
ber 26,  1865.  His  father,  a  native  of  Connecti- 
cut, was  a  civil  engineer.  Mr.  Carter  re- 
ceived his  education  in  both  public  and  private 
schools,  and  prepared  himself  for  the  bar  by 
reading  in  private  law  offices  at  Los  Angeles. 
He  went  to  that  city  to  live  in  1888,  at  the 
age  of  twenty-three,  and  was  admitted  to  the 
bar  by  the  State  Supreme  Court  in  April,  1890. 
He  has  always  since  been  in  good  practice 
there.  For  some  years  he  has  been  in  partner- 
ship with  Mr.  Isidore  B.  Dockweiler,  a  na- 
tive of  Los  Angeles,  under  the  firm  name  of 
Dockweiler  &  Carter.  The  gentlemen  are  of 
opposite  politics.  Mr.  Carter  further  dififers 
from  his  partner  in  that  he  is  not  a  married 
man.  The  firm  of  Dockweiler  &  Carter  stands 
very  high  and  strong  at  the  bar  of  Southern 
California.  It  is  perhaps  the  most  advanced 
of  the  younger  firms  of  that  great  section,  no 
other  firm  of  the  age  leading  it  in  point  of 
ability  or  amount  of  business. 

Mr.  Carter  was  deputy  attorney-general  un- 
der Hon.  W.  F.  Fitzgerald  for  a  full  term  of 
four  years,  which  ended  in  January,  1899.  I" 
November,  1900,  he  was  elected,  as  a  Repub- 
lican, to  the  assembly  from  the  seventy-fifth 
district,  which  comprises  one-third  of  Los  An- 
geles city.  He  is  serving  in  that  body  as  this 
History  is  being  closed. 


PAUL  BURKS. 


Mr.  Burks,  who  has  not  yet  attained  the  age 
of  thirty  years,  comes  from  a  long  and  illus- 
trious line  of  Southern  ancestors.  He  was  born 
in  Logan  county,  Kentucky.  He  is  the  third 
son  of  Dr.  Jesse  H.  Burks,  a  veteran  of  the 
Confederate  .Annv,  and  Sabina  Dismukes 
Burks.  .At  an  early  age  his  parents  moved  to 
Los  .Angeles,  California,  where  his  father  was 
prominently  identified  with  the  progress  and 
development  of  the  city  uijlil  the  time  of  his 
death. 

Mr.    Burks    rectived    an    academic   and    high 


1006 


History  of  the  Bench  and  Bar  of  California. 


school  education,  read  law,  and  entered  the 
celebrated  Cumberland  University,  at  Lebanon, 
Tennessee.  He  passed  the  bar  examination 
and  was  admitted  to  the  bar  of  Tennessee.  He 
received  the  degree  of  Bachelor  of  Laws  from 
the  university  named.  He  subsequently  pur- 
sued post  graduate  work,  and  had  conferred 
upon  him  the  degree  of  Master  of  Laws  by 
the  Columbian  University. 

After  leaving  college,  he  returned  to  his 
home,  was  admitted  to  the  bar  of  California  in 
1898.  and  entered  upon  the  active  practice  of 


In  1892  Mr.  Childs  was  elected  county  clerk 
of  that  county,  and  was  re-elected  in  1894. 
In  December,  1895,  he  passed  the  examination 
before  the  Supreme  Court  of  California.  He 
resigned  the  office  of  county  clerk  in  November. 
1896,  to  accept  the  position  of  minute  clerk  of 
the  State  senate,  and  in  the  spring  of  1897  be- 
gan the  practice  of  law  at  Crescent  City.  In 
1898  he  was  elected  district  attorney  of  Del 
Norte  county,  which  office  he  now  holds.     Mr. 


his  profession  in  Los  Angeles.  He  made  his 
initial  bow  to  the  public  when  associated  with 
Hon.  Will  A.  Harris  and  Earl  Rogers,  Esq.,  as 
junior  counsel  in  the  successful  defense  of 
William  Alford,  who  was  tried  for  the  murder 
of  Jay  E.  Hunter,  a  member  of  the  Los  An- 
geles bar. 

Mr.  Burks  is  a  staunch  Republican  in  poli- 
tics and  takes  an  active  interest  in  party  af- 
fairs. He  formed  a  partnership  with  Philip 
B.  Voorhees,  Esa..  and  is  now  senior  member 
of  the  prosperous  firm  of  Burks  &  Voorhees, 
with  offices  in  the  Henne  building,  Los  An- 
geles. The  firm  represents  large  individual  and 
corporate  interests. 


JOHN  L.  CHILDS. 


John  L.  Childs,  district  attorney  of  Del  Norte 
county,  was  born  on  the  27th  day  of  May,  1863, 
in  England.  He  was  taken  to  the  state  of 
New  York  by  his  parents  at  the  age  of  three 
years,  and  was  brought  up  at  Indian  Falls,  in 
the  western  part  of  that  state.  In  1885  he 
was  graduated  from  Stakey  Seminary,  located 
on  the  western  bank  of  Seneca  Lake,  in  which 
institution  he  taught  for  two  years;  In  1888, 
while  acting  as  principal  of  Greenville  Acad- 
emy, at  Greenville,  New  York,  his  health 
failed,  and  he  went  to  Southern  California, 
where  he  resided  for  two  years,  going  to  Del 
Norte  county  in  1891.  He  there  engaged  in 
the  newspaper  business,  as  proprietor,  of  the 
Crescent  City  Nezvs. 


Childs  is  a  Republican  in  politics,  and  was  one 
of  the  delegates  from  the  First  congressional 
district  to  the  Republican  national  convention 
held  at  Philadelphia,  in  June,  1900. 


JOSEPH  F.  CHAMBERS. 

Mr.  Chambers  was  born  in  Clinton  county, 
Illinois,  April  3,  1862.  His  father  was  a  farmer. 
The  son  remained  on  the  farm  until  the  age 
of  nineteen,  except  winters,  when  he  was  in 
school.  He  attended  the  district  school  and 
graded  school  at  Clement,  Illinois,  and  the 
State  Normal  School  at  Ypsilanti,  Michigan. 
He  began  the  study  of  law  in  the  office  of 
Hon.  E.  P.  Allen,  at  Ypsilanti,  but  before  ad- 
mission to  the  bar  his  study  was  interrupted 
by  the  severe  illness  of  his  father.  He  came 
West  in  1881,  and  was  engaged  for  about  two 
years  in  railroading  in  Colorado  and  New 
Mexico. 

Mr.  Chambers  settled  at  Los  Angeles  in 
1884.  He  was  clerk  of  the  Justice's  and  Po- 
lice Court  under  Judge  Austin  for  about  nine 
years,  during  which  time  he  resumed  the  study 
of  law.  He  was  admitted  to  practice  in  1890. 
After  leaving  the  position  of  clerk  under  Judge 
Austin,  he  engaged  in  general  practice  in  Los 
Angeles  until  1897,  when  he  was  appointed  a 
deputy  by  Hon.  J.  A.  Donnell.  district  attor- 
ney, and  was  later  re-appointed  by  James  C. 
Rives,  the  present  accomplished  incumbent  of 
that    office. 


Hoivard  A.   Broughton 


History  of  the  Bench  and  Bar  of  California. 


1009 


HOWARD  A.  BROUGHTON. 

Hon.  Howard  Anthony  Broughton  was  born 
in  the  city  of  Santa  Cruz,  California,  on  the 
6th  day  of  October,  1863,  the  son  of  William 
Wallace  Broughton,  who  was  born  in  Tona- 
wanda,  New  York,  in  1836.  The  father  was 
reared  as,  and  has  followed  the  pursuit  of  jour- 
nalist, and  is  also  an  attorney-at-law.  He,  tlie 
father,  came  to  California  in  1858,  and  settled 
in  Santa  Cruz,  California,  where  the  son  was 
born.  The  latter  moved  with  his  parents,  while 
a  child,  to  Santa  Barbara  county,  where  he 
grew  to  manhood,  receiving  his  education  in 
the  public  schools.  He  entered  the  Hastings 
College  of  the  Law  in  1885,  and  was  graduated 
therefrom  with  honors  in  1888,  receiving  the 
degree  of  LL.  B.,  when  he  was  admitted  to 
practice  bv  the  Supreme  Court.  Meantime,  he 
entered  the  offices  of  A.  A.  Sargent,  ex-United 
States  senator,  and  Frank  M.  Stone,  in  San 
Francisco,  and  there  finished  his  practical 
course  of  study  of  the  law.  He  remained  in  the 
office  of  Sargent  &  Stone  for  something  like 
three  years,  leaving  to  take  up  the  practice 
of  law  in  Pomona,  Los  Angeles  county.  Cali- 
fornia, in   i8go. 

Mr.  Broughton  quickly  obtained  recognition 
from  the  people  of  Pomona  by  reason  of  his 
merit  and  capability.  He  is  at  the  present  time 
attorney  for  the  leading  banks,  the  local  water 
company,  and  various  corporate  interests  cen 
tered  at  Pomona.  He  has  always  taken  an  in- 
terest in  poiuics,  and  for  years  has  been  the 
representative  of  his  section  of  the  county,  in 
city,  county  and  State  conventions  of  the  Re- 
publican party.  In  November,  1900,  he  was 
elected  to  the  assembly  from  the  Seventy-first 
district  by  the  largest  majority  ever  given  a 
representative  in  that  district.  His  ability  was 
immediatelv  recognized  in  the  late  thirty-fourth 
session  of  the  legislature,  and,  contrary  to  pre- 
cedent, this  being  his  first  term,  he  was  placed 
at  the  head  of  the  committee  on  corporations 
of  the   assembly. 


his  profession.  On  September  ist  1899,  he 
formed  a  partnership  with  E.  A.  Rea,  the 
subject    of    another    sketch,    under    the    firm 


G.   W.   COBB. 


Charles  Wellington  Cobb  was  born  at  the 
City  of  Gilroy,  Santa  Clara  county,  Califor- 
nia, on  August  15th,  1872.  His  parents  are 
old  residents  of  Santa  Clara  county.  His 
family  being  engaged  in  commercial  pursuits, 
and  he  being  an  only  son,  he  originally  pre- 
pared himself  for  a  career  in  that  line,  re- 
ceiving, in  addition  to  an  otherwise  liberal 
education,  one  in,  and  making  a  special  study 
of,  commercial  affairs  and  banking.  For  a 
number  of  years  he  had  valuable  practical 
experience  in  those  branches.  His  natural 
inclinations  and  desires,  however,  soon  led 
him  to  the  law,  and  after  a  thorough  course 
of  study  under  able  tutorage  and  supcrvis.ion. 
and  a  course  in  the  practical  affairs  of  law; 
and  practice  in  the  office  of  Daniel  W.  Bur- 
chard,  of  San  Jose,  he  was  admitted  to  the 
bar  by  the  Supreme  Court  of  the  State  of 
California  in  May.  1807.  From  that  time, 
and  uo  to  September.  1809,  he  was  associated 
with   Mr.    Burchard    in   the   active   practice   of 


name  of  Cobb  and  Rea,  and  is  now  engaged  in 
practice  at  San  Jose,  as  a  member  ot  that 
firm. 


E.  C.  COOPER. 


Edgar  C.  Cooper  was  born  at  Eureka,  in  this 
State,  on  the  6th  day  of  October,  1868.  He  was 
educated  Mn  the  public  schools  of  Eureka.  He 
entered  Hastings  College  of  the  Law  in  1888, 
and  was  gl-aduated  in  the  class  of  1891.  He 
immediately  returned  to  the  city  of  Eureka, 
and  entered  upon  the  practice  of  his  profes- 
sion. He  has  since  been  engaged  in  some  of  the 
more  important  cases  before  the  courts  of 
Humboldt  county. 


In  1898  Mr.  Cooper  was  elected  to  the  office 
of  district  attorney  of  Huni'boldt  county,  re- 
ceiving the  highest  vote  and  largest  majority 
of  any  on  his  ticket.  He  has  been  very  suc- 
cessful in  the  office,  and  has  lost  but  one  case 
in   the  two  years  of  his  incumbency. 

Mr.    Cooper's   father   was   born   in    England, 


1010 


History  of  the  Bench  and  Bar  of  California. 


coming  to  this  country  at  the  age  of  six  years. 
For  nineteen  years  he  was  receiver  of  the 
United  States  Land  Office  at  Humboldt,  CaH- 
fornia.  Mr.  Cooper's  mother  was  born  in 
Maine,  and  was  a  direct  descendant  of  Colonel 
Prescott.  the  commander  at  Bunker  Hill.  Her 
maiden  name  was  Wilder,  and  she  came  from 
the  same  stock  which  produced  the  Wilders 
of    Massachusetts. 


CHARLES  T.  CONLAN. 

Charles  Thomas  Conlan,  a  Judge  of  the  Po- 
lice Court  of  San  Francisco,  was  born  in  Sac- 
ramento city,  California,  September  6,  186.4. 
He  is  of  Irish  parentage,  and  was  educated  at 
Santa  Clara  College.  He  was  admitted  to  the 
bar  on  the  4th  of  May,  1886.  After  serving  a 
term  as  prosecuting  attorney  of  the  San  Fran- 
cisco Police  Court,  he  was,  in  November,  1892, 
elected,  on  the  Democratic  ticket,  as  Judge  of 
that  court,  and,  by  successive  re-elections,  has 
held  the  office  ever  since  January,  1893. 


J.   S.  CALLEN. 


The  above  is  a  portrait  of  J.  S.  Callen.  Esq., 
residing  at  San  Diego,  California,  recognized 
by  the  thousands  who  know  him  as  a  lawyer 
and  a  man  in  every  sense  of  the  word. 


ROBERT  M.  CLARKE. 

At  the  age  of  twenty-one  years  this  gentle- 
rnan  has  a  good  law  practice,  and  stands  as 
high  as  any  man  in  Ventura  county  in  popular 
estimation.  He  has  established  a  name  for  de- 
votion to  duty,  and  for  ability  in  his  call- 
ing. 

Mr.  Clarke  was  born  in  Ventura  county, 
March  5.  1879.  He  is  a  graduate  of  the  High 
School  of  Santa  Paula,  but  not  of  any  law 
school.  He  was  admitted  to  the  bar  in  April, 
1900.  He  is  a  prominent  Mason,  and  is  presi- 
dent of  Santa  Paula  Parlor,  Native  Sons  of  the 
Golden    West.      He    married,    at    Carpinteria, 


at  the  close  of  the  year  looo.  Miss  Edna  Thur- 
mond, a  successful  school  teacher  of  his 
county.  At  the  election  in  November,  1900, 
he  was  chosen,  as  a  Republican,  a  member 
of  the  assembly  by  a  majority  of  413  votes 
over  Hon.  W.  E.  Shepherd,  the  city  attorney 
of  Ventura,  and  is  serving  in  that  body  as 
this  History  is  being  printed.  He  is  the 
youngest   member   of   the   legislature.     On   the 


day  succeeding  his  election  to  the  assembly, 
November  7,  his  former  law  partner,  George 
E.  Farrand,  a  Democrat,  aged  twenty-two,  was 
appointed  county  clerk  of  Ventura  county. 


WlLLiAM  T.  CRAIG. 


William  T.  Craig  was  born  at  Watsonville, 
Santa  Cruz  county.  California,  March  8,  1866. 
His  father.  Judge  Andrew  Craig,  was  district 


attorney  and  County  Judge  of  that  county,  his 
official  period  being  from  1872  until  1880. 
In  the  latter  year  he  removed  with  his  family 
to    San    Francisco.      William    T.    Craig,    after 


R.  H.   Countryman 


History  of  the  Bci^ch  and  Bar  of  Califoniia. 


1013 


spending  two  years  in  the  office  of  the  city  and 
county  attorney  of  San  Francisco,  entered  the 
State  University,  at  Berkeley,  in  1885,  taking 
the  course  in  letters  and  political  science,  and 
in  1889  he  was  graduated  with  the  degree  of 
Ph.  B.  Immediately  afterwards  Mr.  Craig  en- 
tered Hastings  Law  College,  taking  an  irregu- 
lar course  under  Judges  McKinstry  and  Slack, 
and  in  1890  was  admitted  to  practice  by  the 
Supreme  Court  at  the  Sacramento  term.  He 
then  formed  a  partnership  with  his  father  in 
San  Francisco,  and  continued  to  practice  law  in 
that  city,  under  the  firm  name  of  Craig  &  Craig, 
until  1893.  when  he  removed  to  the  city  of  Los 
Angeles.  Shortly  thereafter  he  married  Miss 
Etta  Brown  of  San  Francisco,  and  he  now  re- 
sides with  his  family  and  practices  his  profes- 
sion in  Los  Angeles. 

Mr.  Craig  is  a  member  of  various  clubs  and 
secret  societies,  in  which  he  takes  an  active  in- 
terest. In  politics  he  is  a  Democrat,  but  since 
1892.  in  which  year  he  ran,  and  was  defeated, 
for  city  and  county  attorney  of  San  Francisco, 
he  has  taken  no  active  part  in  politics. 

Mr.  Craig  lias  "^iven  his  special  attention  in 
his  practice  to  corporation  and  mercantile  law, 
in  which  branches  he  has  succeeded  in  estab- 
lishing a  lucrative  business.  In  1900  he  formed 
a  partnership  with  Eber  T.  Dunning,  under 
the  firm  name  of  Dunning  &  Craig,  with  offices 
at  suites  :i22,  2,22  and  324  Bullard  Building, 
Los  Angeles.  The  firm  are  attorneys  for  the 
Wholesalers'  Board  of  Trade  of  Los  Angeles, 
for  a  large  number  of  wholesale  establishments 
and  for  some  of  the  leading  trust,  mining,  title 
abstract,  building  and  loan,  mercantile,  and 
other  corporations  in  Southern  California. 


R.  H.  COUNTRYMAN. 

Robert  Harmer  Countryman  was  born  in 
Philadelphia,  Pennsylvania,  September  11, 
1864.  While  attending  school  his  health  was 
impaired  by  overstudy,  and  he  came  to  Cali- 
fornia for  rest  and  recreation,  intending  to  re- 
turn to  Philadelphia.  He  improved  so  rapidly 
that  he  determmed  to  remain  here.  Entering 
Hastings  College  in  August,  1885.  he  was  grad- 
uated therefrom  in  June,  1888.  He  went  into 
the  office  of  Jarboe,  Harrison  &  Goodfellow, 
San  Francisco,  shortly  before  he  began  attend- 
ing the  law  school,  and  remained  with  that 
firm  until  Judge  Harrison  went  on  the  Su- 
preme bench,  in  January,  1891.  Thereafter 
he  was  associated  with  Mr.  Jarboe  until  his 
death,  in  July.  1893.  JIc  has  been  i)racticin<j; 
alone  since  that  time. 

Mr.  Countryman's  first  American  ancestor 
came  from  tlolland,  settling  in  New  Amster- 
dam, now  New  York.  His  great  grandfatiicr, 
John  Countryman,  was  a  captain  in  the  Revo- 
lutionary army.  He  was  with  -Washinglon  al 
Valley  Forge.  .-Kfter  the  war  he  settled  at 
Philadelphia,  where  his  son,  Christian,  and 
grandson,  George,  were  born,  and  carried  on 
business.  George  was  the  father  of  our  sub- 
ject. His  mother  was  a  Quakeress.  His  wife, 
our  subject's  mother,  was  Margaret  Goods - 
man.  She  was  l)iirn  in  Musselby.  near  Edin- 
burgh,  Scotland.     Ikr   family  belonged   to  the 


nol)ility,  one  of  her  ancestors  being  Sir  James 
McGill,  who  was  a  Lord  of  Sessions  in  Scot- 
land in  1629.  But  our  California  attorney,  an 
ardent  American,  attaches  small  importance  or 
value  to  the  family  crest,  seal,  etc. 

Mr.  Countryman  was  married,  June  26.  1889, 
to  Miss  Jennie  A.  McWilliams,  of  Vallejo, 
California,  and  has  two  children,  Harmer, 
aged  ten,  and  Ralph,  seven  years.  He  is  past 
master  of  Occidental  Lodge  No.  22,  F.  and  A. 
M.  He  is  junior  warden  of  St.  Paul's  Protest- 
ant Episcopal  Church. 


ARTHUR  J.  DANNENBAUM. 

Arthur  J.  Dannenbaum  was  born  at  Gilroy, 
California,  July  6th,  1876.  He  attended  the 
public  schools  of  San  Francisco  and  the  Uni- 
versity of  California,  graduating  from  the 
latter  institution  in  1898  and  receiving  the  de- 
gree of  bachelor  of  philosophy.  While  at 
college  he  was  upon  two  occasions  selected 
as  one  of  the  participants  in  inter-collegiate 
oratorical  contests  with  Stanford  University, 
acquitting  himself  creditably  in  these-  debate's. 
While  pursuing  his  studies  in  the  academic 
department  of  the  university,  he  also,  during 
the  last  year  of  his  college  course,  began  the 
study  of  law.  He  was  admitted  to  the  Su- 
preme Court  of  California  in  1899,  and  is  now 
engaged  in  the  practice  of  his  profession  in  San 
Francisco.    In  politics  he  is  a  Repubican. 


MARION  DE  VRIES. 


Marion  de  Vries  was  born  near  Woodbridge, 
San  Joaquin  county,  California,  August  15, 
1865.  He  attended  the  public  schools  until  he 
was  fifteen  years  of  age,  when  he  entered  San 
Joaquin  Valley  College,  from  which  he  grad- 
uated in  1886.  with  the  degree  of  doctor  of 
philosophy.  He  then  entered  the  law  depart- 
ment of  the  University  of  Michigan,  whence 
he  graduated  in  1888,  with  the  degree  of 
])achelor  of  law.  He  was  admitted  to  practice 
before  the  Supreme  Courts  of  Michigan  and 
of  California  in  the  same  year,  and  on  Janu- 
ary I,  1889,  commenced  the  practice  of  law 
at  Stockton  with  John  B.  Hall.  Later  in  the 
same  year  he  formed  a  copartnership  with 
W.  B.  Nutter,  a  leading  lawyer  of  Stockton, 
and  under  him  acted  as  assistant  district 
attorney  for  San  Joaquin  county  from  Jan- 
uary,   1893.   to   February,   1897. 

He  was  elected  by  the  Democrats  to  the 
fifty-fifth  congress,  and  re-elected  to  the  fifty- 
sixth,  being  indorsed  by  the  People's  Party, 
and  received  nearly  5,000  majority  over  liis 
Republican    competitor. 

In  June.  1900,  Mr.  de  Vries,  while  serving 
in  congress,  was  appointed  by  President  Mc- 
K  in  ley  a  member  of  the  board  of  general  ap- 
praisers at  New  York  city,  the  law  requiring 
the  President  to  ajipoint  at  least  one  member 
of  th'.'  1)oard  from  n  j)arty  of  opposite  poli- 
tics. 

The  President  assured  Mr.  de  Vries  of  the 
great  gratification  with  which  he  had  heard 
from  the  public  men  of  all  parties  with  whom 


1014 


History  of  the  Bench  and  Bar  of  California. 


he  had  consuUed,  only  words  of  praise  regard- 
ing him,  and  said  he  made  the  appointment 
with  peculiar  pleasure,  especially  as  the  Pa- 
cific coast  was  without  a  representative  on 
the   hoard   of  general   appraisers. 

The  place  carries  a  salary  of  $7,500  per  year, 
and  is  held  during  good  behavior.  It  is  one 
of  the  most  desirable  positions  in  the  gift  of 
the    President. 

Mr.  de  Vries  felt  especially  honored  by  the 
fact  that  he  made  no  application  for  the  place, 
but  was  strongly  recommended  to  the  Presi- 
dent by  the  Pacific  coast  delegation  in  con- 
gress and  by  prominent  and  influential  Demo- 
crats and  Republicans  throughout  the  country. 


FRANK  R.  DEVLIN. 


Frank  R.  Devlin,  of  Vallejo,  Solano  coun- 
ty, Cal.,  was  born  in  Windsor,  Ontario,  di- 
rectly across  the  river  from  Detroit,  Mich.,  but 
since  he  was  three  years  of  age  his  home  has 
been  in  Vallejo. 

Mr.  Devlin  was  educated  in  the  Vallejo 
public  schools,  graduating  from  the  High 
School  of  that  city  at  sixteen  years  of  age, 
June  6th,    1884. 

In  1885,  in  boyhood,  he  entered  the  naval 
service,  enlisting  on  board  the  U.  S.  S. 
"Ranger,"   then   on   surveying  duty,  as  writer. 


The  following  three  years  were  spent  on 
board  the  '"Ranger,"  surveying  along  the  coast 
of  Lower  California.  Captain  Charles  E. 
Clarke,  of  "Oregon"  battleship  fame,  and 
Captain  Francis  E.  Cook,  the  gallant  comman- 
der of  the  "Brooklyn"  in  the  battle  of  San- 
tiago, were,  at  different  periods  during  this 
time,  commanding  officers  of  the  "Ranger." 

Not  content  with  his  sea  experience,  Mr. 
Devlin,  upon  completion  of  his  term  of  en- 
listment on  the  "Ranger."  accepted  an  ap- 
pointment as  pay  yeoman  with  Paymaster 
Chapman,  U.  S.  N.,  on  the  U.  S.  S.  "Dolphin," 
the  "Pioneer  of  the  White  Navy,"  and  the 
first  of  these  ships  to  come  to  the  Pacific 
coast.  Leaving  San  Francisco  in  November, 
1888,  the  "Dolphin"  visited  ports  in  Central 
and  South  America,  Hawaiian  Islands,  Japan, 


China,  Corea,  East  Indies,  Egypt,  Italy,  France, 
Spain,  England,  and  the  Island  of  Madeira. 

The  experience  and  knowledge  Mr.  Devlin 
gained  during  his  service  in  the  navy  and  in 
his  travels,  have  been  of  immeasurable  value 
to  him  in  his  profession.  The  opportunity 
to  study  human  nature,  which  one  has  while 
living  on  board  of  a  ship  with  one  or  two 
hundred  representatives  of  all  degrees  of  so- 
ciety, the  discipline,  and  the  broadness  one 
acquires  through  travel,  conduce  to  success 
in  life,  and  more  particularly  so  in  the  legal 
profession. 

During  his  service  on  board  ship  Mr.  Devlin 
devoted  himself  to  the  study  of  law,  but 
necessarily  met  many  obstacles. 

Shortly  after  his  return  home  in  1891,  he 
entered  the  law  office  of  Hon.  H.  C.  Gesford, 
at  Napa,  Cal.,  and  in  August,  189.3,  was  ad- 
mitted  to   practice  by  the   Sunreme   Court. 

He  returned  to  Solano,  his  home  county,  and 
in  August,  1894,  was  nominated  by  the  Repub- 
lican county  convention,  for  district  attor- 
ney and  was  elected  for  a  period  of  four  years. 
In  September,  1898,  he  was  re-nominated  for 
the  same  position  without  opposition,  and 
was  re-elected  by  nearly  treble  his  former 
majority  over  his  same  opponent. 

His  administration  of  the  duties  of  his 
office  has  been  signally  successful,  and  has 
the   general    endorsement   of   his   constituents. 

Mr.  Devlin  is  a  self-made  man  in  the  truest 
sense,  and  has  won  a  secure  place  among  the 
leading  young  lawyers  of  central   Califoria. 


D.  H.  DfXONG. 


The  advantages  that  accrue  to  the  youth 
whose  parents  are  able  and  willing  to  fur- 
nish him  with  an  excellent  education  to 
enable  him  to  take  a  commanding  position 
in  organized  society,  have  not  been  the  lot 
of  the  subject  of  this  sketch.  While  the  more 
fortunate  were  gathering  useful  knowledge 
at  the  great  institutions  of  learning,  he  was 
compelled  by  stern  necessity  to  seek  employ- 
ment upon  the  farm  and  in  the  workshop.  By 
industry  and  economy  he  was  enabled  to  save 
sufficient  money  to  pursue  his  studies  with  a 
view  to  practicing  law,  and  he  was  admitted 
to  the  Supreme  Court  on  the  8th  day  of 
September,  1898.  His  home  and  office  are 
at  Colusa,  California.  There  are  few  men 
more  worthy  of  confidence  or  more  capable, 
and  he  has  a  good  clientage. 


DENTS  DONOHOE.  JR. 

Mr.  Doiiohoe  was  born  in  Buft'alo,  New 
York.  September  19,  1861.  His  father.  Denis 
Donohoe,  was  at  that  time  Her  British  Ma- 
jesty's consul  at  Buff'alo.  The  elder  Donohoe, 
a  most  worthy  man,  had  a  long  consular  ca- 
reer in  the  cities  of  the  L^nited  States,  his  last 
post  being  at  San  Francisco,  where  we  had 
the  pleasure  of  his  acquaintance.  Taking  the 
British  consulate  at  San  Francisco  in  January, 
1887,  his  department  embracing  the  Pacific 
Coast,    he    resigned    in    March,    1895,    and    re* 


George  E.   Crothers 


History  of  the  Bench  and  Bar  of  California. 


1017 


tired  to  San  Rafael,  near  by,  where  he  had 
built  him  a  home  at  the  sunset  of  a  long  life. 
There  he  died  on  December  ii,  1896,  aged 
seventy-one  years. 

Denis  Donohoe,  Jr.,  was  educated  at  Loyola 
College,  Baltimore,  Maryland ;  at  Bishop's 
College.  Lennoxville,  Canada ;  the  University 
of  Bonn,  Germany,  and  Columbia  College  Law 
School,  New  York  City.  Graduating  from  the 
last  named  in  the  class  of  1882,  he  was  ad- 
mitted to  the  bar  at  Poughkeepsie.  New  York, 
May  18,  1883.  He  came  to  California  in  the 
winter  of  1888-89,  and  has  since  been  en- 
gaged in  law  practice  at  San  Francisco,  in 
partnership  with  Captain  T.  E.  K.  Cormac. 

Mr.  Donohoe  is  a  married  man,  and  resides 
at  San  Kafael.  Like  the  senior  member  of 
his  firm  (which  has  been  for  some  years  Cor- 
mac, Donohoe  &  Baum)  he  has  seen  much  of 
the  world,  and  like  him.  he  has  the  easy  man- 
ner and  engaging  discourse  of  men  who  have 
traveled  over  historic  lands  with  eyes  wide 
open.  He  has  always  been  a  strong  lover  of 
external  nature,  and  outdoor  sports,  and  he 
still  lets  no  summer  slip  by  without .  going, 
with  his  dog  and  gun  and  fishing  tackle,  to  the 
mountain  streams  and  forests  for  a  stay  of 
weeks. 

GEORGE  E.  CROTHERS. 

George  Edward  Crothers  is  a  native  of 
Iowa,  and  was  born  May  27.  1870.  At  the  age 
of  thirteen  he  came  to  California  with  his  par- 
ents, who  have  since  lived  at  San  Jose.  .A.t  the 
latter  place  he  attended  the  Horace  Mann 
School,  and  subsequently  the  High  School, 
from  which  he  graduated  in  1891.  While  at  the 
High  School  he  organized  the  High  School 
senate,  a  literarv  society,  which  still  flourishes 
at  the  school.  He  was  also  a  member  of  the 
Gamma  Eta  Kanpa,  a  national  High  School 
fraternity,  and  in  1891  became  ,  chief  grand 
officer  of  the  order. 

He  entered  Stanford  University  upon  its 
opening,  and  was  the  temporary  chairman  and 
second  president  of  the  "Pioneer"  class.  While 
at  Stanford  he  became  a  member  of  the  Sigma 
Nu  and  Phi  Delta  Phi  fraternities,  the  Alpha 
Literarv  Society  and  "Bench  and  Bar"  Law 
Club. 

in  1895  he  graduated  in  history  frnni  Stan- 
ford University,  after  having  fulfilled  all  the 
requirements  for  graduation  in  both  the  his- 
tory and  law  departments.  On  May  27,  1896, 
he  received  the  degree  of  Master  of  Arts  in 
law.  This  was  the  only  occasion  upon  which 
the  degree  has  ever  been  granted.  While 
working  for  his  Master's  degree  he  wrote  a 
brief  history  of  creditor's  rights. 

In  the  summer  of  1896  he  began  tin-  prac 
ticc  of  law  with  Messrs.  Pierson  &  Mitchell. 
The  following  year  he  became  the  junior  mem- 
ber of  the  firm  of  Crothers  &  Crothers.  He  is 
one  of  the  three  attorneys  of  record  for  the  ex- 
ecutors of  the  Fair  estate.-  In  the  recent  trial 
of  the  Craven  case  he  conducted  the  branch 
of  the  case  relative  to  photography  and  hand- 
)vriting.  with  what  success  the  judgment  of  the 
•^ourt    at<;<?sts. 


He  was  made  the  first  president  of  the  Stan- 
ford Alumni  Llub  of  San  Francisco,  and  was 
president  of  the  general  Stanford  University 
Alumni  Association  in  1899  and  1900.  He  is  a 
member  of  the  Golden  Gate  Commandery, 
Knights  Templar,  and  a  Shriner. 

For  nearly  two  years  he  was  president  of 
the  People's  Telephone  Company  of  San  Jose, 
which  he  placed  upon  a  firm  financial  basis,  but 
was  obliged  to  resign,  owing  to  a  growing 
practice. 

Jointly  with  T.  G.  Crothers,  his  brother,  he 
is  the  author  of  the  Stanford  University  Con- 
stitutional amendment,  which  is  designed  to 
serve  as  the  organic  law  for  Stanford  Uni- 
versity, and  corrects  many  defects  in  the  orig- 
inal enabling  act  and  endowment  grant.  He 
directed  the  amendment  movement  from  its 
inception. 


JESSE  R.  DORSEY. 


Tills  gentleman  was  born  at  Argentville, 
Lincoln  County,  Missouri,  in  1877.  Lil<e  Hon. 
James  G.  Maguire,  and  others  prominent  at  the 
California  bar,  he  was  a  blacksmith's  son.  His 
ancestors  came  to  America  with  Lord  Balti- 
more, and  settled  in  Maryland.  His  maternal 
grandfather  was  in  the  Union  Army  in  the 
Civil  War;  his  paternal  grandfather  was  in  the 
Confederate  Army  under  General  Price,  who 
surrendered  at  Shreveport,  La.,  at  the  close  of 
the  war. 

Mr.  Dorsey  read  law  in  the  office  of  Albert 
Dickerman,  Esq.,  at  Watsonville,  Cal.,  and  af- 
terwards attended  the  Northern  Indiana  Law 
School,  at  Valparaiso,  Indiana.  He  was  com- 
pelled to  work  to  support  himself  while  prepar- 
ing for  the  profession.  He  was  admitted  to  the 
bar  in  1898.  In  May,  1899,  he  was  appointed 
Denuty  District  Attorney  of  Kern  County.  He 
still  holds  the  position,  residing  at  Baker-field. 


O.  V.   EATON. 


Mr.  Eaton  was  ])orn  in  Indiana,  in  1870. 
He  was  graduated  from  Leland  Stanford  Uni- 
versity in  1895,  and  Hastings  College  of  the 
Law  in  1897.  He  was  admitted  to  the  bar  by 
tlie  Supreme  Court  in  1897.  He  is  now  asso- 
ciated in  practice  with  Galpin  &  Bolton,  at  45- 
48  Crocker  building,   San   Francisco. 


C.   A.   ELLIOTT. 

Christopher  A.  Ellit)tt,  junior  member  of 
the  firm  of  Flinkson  and  Elliott,  was  born  in 
the  county  of  Ontario,  near  Toronto,  Canada. 
on  the  31st  day  of  January,  1867.  In  May  of 
the  same  year  his  father  died,  and  two  years 
later  he  came  to  California,  accomi)anying  his 
mother,  who  settled  in  Sacramento  county, 
and  there  he  grew  to  manhood.  Mr.  Elliott 
received  his  elementary  education  in  the  public 
schools  of  that  county,  and  his  collegiate  train- 
ing at  the  University  of  the  Pacific  at  San 
Jose,  California.  After  leaving  the  latter  in- 
stitution, he  began  the  study  of  law  with 
Young  &  Powers  in  San  Francisco,  and 
entered  Hastings'  Law  College,  where  he  pur- 


1018 


History  of  the  Bench  and  Bar  of  California. 


sued  his  studies  till  his  admission  to  the  bar 
bv  the  Supreme  Court  of  the  State  on  July 
^'^th  1892.  In  August  of  that  year.  Mr.  hlhott 
began  practice  in  the  city  of  Sacramento  and 
four  years  later,  on  the  retirement  ot  A.  U. 
Hinkson  from  the  Superior  bench  of  Sacra- 
mento countv.  he  formed  a  partnership  with 
the   laticr    which   has   existed   ever   since. 

In  politics,  Mr.  Elliott  is  a  Republican,  and 
at  present  he  is  one  of  the  nine  school  direc- 
tors entrusted  with  the  management  of  the 
public  schools  of  Sacramento  city. 


ISIDORE  B.  DOCKWEILER. 

Isidore  B.  Dockweiler  was  born  in  Los  An- 
geles, on  December  28.  1867.  He  received  his 
education  at  St.  Vincent's  College,  in  that  city, 
from  which  he  was  graduated  in  1887,  with  the 
dc<^rce  of  A.  B.  Two  years  later  the  same  in- 
stitution conferred  upon  him  the  degree  of 
A  M  He  spent  about  a  year  in  surveying 
and  on  November  i.  1888.  entered  upon  the 
studv  of  the  law  in  the  offices  of  Anderson, 
Fitzgerald  &  Anderson,  at  Los  Angeles.  Un 
October  14.  1889,  he  was  admitted  to  practice 
by  the  Supreme  Court  of  the  State  He  was 
soon  after  admitted  to  the  bar  of  the  Federal 


interest  in  the  welfare  of  the  order.  In  poli- 
tics, Mr.  Dockweiler  is  a  Democrat,  and  fre- 
quently attends  the  local  and  State  conventions 

of  his  party. 

GUSTAVUS   K.   ESTES. 

Mr.  Estes  was  born  in  Vassalboro.  Kennebec 
county,  Maine,  October  11.  1863.  His  father 
was  killed  at  the  battle  of  Hatcher's  Run, 
(Virginia)  October  27,  1864.  His  mother 
died  when  he  was  17  years  of  age  at  Lawrence, 
Kansas,  she  having  moved  with  him  to  that 
State  some  years  previous  to  that  date.  At 
the  age  of  22  he  was  publisher  of  the  Pioneer 
Democrat  at  Lakin.  Kansas,  and  later  went 
to  Topeka.  where  he  published  the  Tribune. 
He  studied  law  while  at  Topeka.  and  in  1891 
sold  his  interest  in  the  paper  and  went  to 
St.  Louis  and  attended  the  St.  Louis  Law 
School  for  a  year.  He  was  admitted  to  the 
bar  and  shortly  after  came  to  the  Pacific 
Coast,  locating  first  at  Port  Angeles,  Wash- 
ington, and  in  1893  moving  to  San  Jose, 
California.  In  1897  he  purchased  the  Regis- 
ter, at-  ?kIountain  View.  Santa  Clara  county, 
and  moved  to  that  place  where  he  has  been 
since,  practicing  law  as  well  as  editing  the 
paper.  He  was  married  to  Miss  M.  Agnes 
Thompson    in    October.    1897. 

Mr.  Estes  has  traveled  extensively  through 
Canada.  British  Columbia.  Mexico  and  thirty- 
one  States  and  Territories  of  the  Union. 


courts.  Immediately  upon  his  admission  he 
engaged  in  the  practice  of  his  profession.  At 
present  he  is  associated  with  Mr.  Henry  L. 
Carter,  the  firm  being  Dockweiler  &  Carter, 
with  offices  in  the  Douglas  building.  Los  An- 

^^Mr  Dockweiler  was  president  of  the  board 
of  directors  of  the  Los  Angeles  Public  Li- 
brarv  from  1897  to  1899-  He  is  at  the  present 
time  a  trustee  of  his  Alma  Mater,  St.  Vin- 
cent's College,  and  ever  since  December  1898. 
has  been  a  trustee  of  the  State  Normal  School 

at  San  Diego.  t      ^    ^^ 

Mr     Dockweiler   was   married,   on   June   30. 

1891    and  is  now  the  father  of  six  interesting 

children     As  a  Native  Son,  he  has  taken  great 


JAMES  D.  FAIRCHILD. 

James  D.  Fairchild  was  born  in  Yreka,  Sis- 
kiyou County,  California,  February  14th,  1869. 
When  but  a  small  boy,  his  father  moved  to  his 
stock  ranch  on  the  Klamath  Lake,  near  the 
Lava  Beds,  where  the  son  also  resided  until  he 
was  eighteen  years  of  age.  being  sent  away 
during  the  winters  to  various  country  schools. 
His  father.  John  A.  Fairchild.  was  well 
known  as  a  pioneer  Indian  fighter,  having  been 
the  captain  of  the  California  Volunteers  during 
tlie  Modoc  War.  In  fact,  the  Fairchild  Ranch 
was  the  headquarters  of  the  .soldiers  during 
that  memorable  campaign. 

In  1887  young  Fairchild  entered  St.  Ignatius 
College.  San  Francisco,  where  he  graduated 
after  a  four  years'  course,  receiving  the  degree 
of  B.  S..  and  also  distinguishing  himself  in 
mathematics,  winning  a  gold  medal.  On  re- 
turning from  college  he  spent  two  years  on  the 
ranch,  engaged  in  shipping  horses  and  cattle. 
He  then  took  up  the  study  of  law  in  the  office 
of  James  F.  Farrahar.  at  Yreka.  where  he  was 
admitted  to  the  bar  in  1896.  since  which  time 
he  has  been  engaged  in  the  practice  of  law  in 
Yreka.  

JOHN  D.  FREDERICKS. 

Mr.  Fredericks  was  born  in  Pennsylvania, 
September  10,  1869.  He  was  graduated  from 
Washington  and  Jefferson  College  in  the  class 
of  1890.  with  the  degree  of  Bachelor  of  Arts. 
He  came  to  California  in  1890.  locating  at  Los 
.■\ngeles  in  that  vear.  and  took  up  the  practice 
of  law  in  1893.     In  llie  War  with   Spain,  1898, 


Thomas  G.   Crothers 


History  of  the  Bench  and  Bar  of  California. 


1021 


he  enlisted  in  the  Seventh  California  Infan- 
try, United  States  Volunteers,  and  served  as 
adjutant  of  his  regiment.  In  1899  he  was  ap- 
pointed deputy  district  attorney  of  Los  An- 
geles county,  under  Hon.  James  C.  Rives,  and 
Ts  now  filling  that  position. 


THOMAS  G.  CROTHERS. 

Thomas  Graham  Crothers,  executor  and 
trustee  of  the  Fair  estate,  has  met  with  signal 
success  since  his  entrance  to  practice  in  San 
Francisco  in  the  year  1894.  He  is  the  son  of 
John  and  Margaret  Jane  Crothers,  both  of 
whom  are  of  Scotch-Irish  descent.  He  was 
born  in  1868,  and  spent  his  childhood  days  in 
Manchester,  Iowa.  In  1879  he  went  with  his 
parents  to  Ida  Grove,  Iowa,  near  which  his 
parents  had  purchased  large  tracts  of  prairie, 
for  grazing  purposes,  in  the  early  seventies, 
but  which  had  now  become  much  too  valuable 
for  such  use.  Here  he  had  the  inestimable 
advantage  of  witnessing  the  almost  instanta- 
neous conversion  of  the  sparsely  populated 
prairie  into  one  of  the  most  populous  districts 
in  the  country. 

After  remaining  four  years  at  Ida  Grove,  his 
parents,  desirous  of  affording  their  numerous 
family  the  advantages  of  a  university  educa- 
tion, determined  that  the  educational  facilities 
of  the  small  colleges  of  Iowa  were  inade- 
quate, and  accordingly  came  to  California. 
Young  Mr.  Crothers  attended  the  public 
schools  of  San  Jose,  and  the  University  of  the 
Pacific,  when  the  latter  was  of  equal  rank  with 
the  State  University.  While  not  making  any 
special  effort  for  mere  precedence,  he  inva- 
riably received  the  highest  grade  in  his  classes 
throughout  his  preparatory  courses. 

In  1892  he  graduated  in  the  historical  de- 
partment of  Stanford  University  as  a  mem- 
ber of  the  first  graduating  class.  While  at 
Stanford  he  was  an  active  member  of  the  lit- 
erary clubs  and  of  the  Sigma  Nu  fraternity. 

He  graduated  from  the  law  department  of 
the  University  of  Michigan,  having  taken  much 
of  the  graduate  work  in  addition  to  the  pre- 
scribed undergraduate  course  of  instruction. 

Soon  after  graduation  he  began  the  practice 
of  the  law  with  the  firm  of  Messrs.  Pierson  & 
Mitchell.  Since  the  death  of  Senator  James  G. 
Fair  he  has  been  identified  with  the  Fair  estate, 
first  as  special  administrator,  and  subsequently 
as  executor  and  trustee.  Under  the  terms  of 
the  will,  he  will  hold  the  Fair  estate  in  trust. 
together  with  Messrs.  Angus  and  Goodfellow, 
during  the  lives  of  the  three   Fair  children. 

In  1897  he  formed  a  partnership  with  his 
l)rother,  George  E.  Crothers,  of  which  he  is 
the  senior  member.  Owing,  in  i)art,  to  his 
w'ide  experience  in  connection  with  the  Fair 
estate  litigation,  he  has  been  peculiarly  suc- 
cessful in  bunding  up  a  very  lucrative  prac- 
tice. 

On  August  30.  I  goo,  lie  married  Miss  Ger- 
trude Benjamin,  the  daughter  of  a  well-known 
Oregon  pioneer. 

Mr.  Crothers  is  an  enthusiastic  Mason,  l)eiiie 


a  member  of  Golden  Gate  Commandery. 
Knights  Templar,  of  California  Lodge  and 
Chapter. 

GEORGE  D.  GEAR. 

George  D.  Gear  was  born  in  Quincj',  Plumas 
county,  California,  March  21.  1868.  He  is  a 
son  of  H.  L.  Gear  and  a  grandson  of  the  late 
Peter  Van  Clief,  both  of  whom  are  sketched  in 
this  History.  He  received  his  education  in  the 
public  schools  and  in  Denison  University  at 
Granville,  Ohio,  and  at  California  College. 
He  .studied  law  in  his  father's  office,  and  was 
admiitted  by  the  Supreme  Court  at  Sacramento 
in  November,  1890.  He  entered  the  practice 
of  the  law  in  partnership  with  his  father,  anil 
continued  in  such  partnership  until  August, 
1895.  He  proved  himself  a  lawyer  of  inde- 
pendent judgment,  and  a  successful  practi- 
tioner. In  1897  he  went  to  Honolulu  to  re- 
side, and  has  since  been  in  the  practice  of  law 
in  Hawaii.  He  has  become  a  prominent  mem- 
ber of  the  Hawaiian  bar.  Business  there  ac- 
quired has  thrice  taken  him  to  Washington. 
D.  C,  and  he  was  admitted  to  practice  in  the 
Supreme  Court  of  the  United  States  in  Octo- 
ber, 1899.  He  has  also  been  admitted  to  the 
United  States  Circuit  Court  and  the  Circuit 
Court  of  Appeals,  which  hold  their  sessions  at 
San   Francisco. 


WILLIAM    A.    FISH. 

William  Andrew  Fish  was  born  in  Tehama, 
Tehama  county,  California,  June  14,  1863. 
His  father,  Judge  Lafayette  Fish,  was  one 
of  the  early  pioneers,  having  crossed  the 
plains  in  1853,  and  located  at  French  Gulch, 
where  he  engaged  in  mining.  In  1856  Judge 
Fish  returned  to  Davenport,  Iowa,  where 
he  was  married  the  following  year  to  Miss 
Jennie  Carter,  and  in  1861  he  again  recrossed 
the  plains  and  settled  near  the  town  of  Te- 
hama. He  engaged  in  farming  and  stock- 
raising.  In  1870  he  moved  to  what  is  now  Hie 
town  of  Corning,  where  he  and  Mrs.  Fish 
still  reside.  Judge  Fish  was  the  first  justice 
of  the  peace  of  Corning  township,  which  office 
he  has  held  continuously  for  twenty-four 
years. 

William  .'\ndiew  Fish  began  life  as  a  far- 
mer boy.  At  the  age  of  sixteen  years  he 
entered  the  service  of  the  firm  of  Simpson  & 
Aitken,  at  Corning,  and  rose  rapidly  to  the 
position  of  head  salesman  and  manager. 
After  remaining  with  that  firm  iov  six  years, 
he  resigned  and  took  a  position  with  the  large 
mercantile  house  of  the  Cone  &  Kimball 
Company  at  Red  Bluff.  He  remained  contin- 
uously with  them  until  in  October.  1894,  when 
he  was  elected  county  clerk  of  Tehama  county. 
He  was  re-elected  in  1898.  and  is  now  serving 
his  second  term  in  the  comlMued  offices  of 
county  clerk,  auditor  and  recorder. 

Mr.  b'ish  had  long  desired  to  take  up  the 
profession  of  the  law.  and  in  1893  he  com- 
menced his  reading  with  Blackstone.  In  Sep- 
tember. 1898.  he  was  admitted  to  practice  at 
tlic   liar  of  the   Supreme   Court. 

lie  has  a   splendid   law   library,  and  as  soon 


1022 


History  of  the  Bench  and  Bar  of  California. 


as  his  term  of  office  expires,  he  will  enter 
upon  the  practice  of  law  at  Red  Bluff,  where 
he  is  assured  a  good  clientage  from  the  be- 
ginning. 

On  October  21,  1884,  Mr.  Fish  was  married 
to  Miss  Mary  Custer,  at  Napa,  California,  a 
daughter  of  John  Custer,  one  of  the  early 
pioneers  of  Napa  county,  a  veteran  of  the 
Mexican  War.  and  a  corporal  under  John  C. 
Fremont ;  and  who  assisted  in  the  building 
of   Fremont's   old    fort   at    Monterey. 

Mr.  Fish  is  at  present  captain-general  of  Red 
Bluff  commandery.  No.  i",  Knights  Temp- 
lar;  colonel   of  the  second   regiment,   uniform 


Air.  Flint  stands  high  at  the  bar,  and  is  ad- 
ministering his  important  office  to  general  sat- 
isfaction. 


rank.  Knights  of  Pythias  of  California;  a 
member  of  Sacramento  lodge.  B.  P.  O.  E., 
and  prominent  also  in  the  Order  of  the  Mac- 
cabees. 


FRANK  P.  FLINT. 

The  present  United  States  attorney  for  the 
southern  district  of  California,  Frank  Put- 
nam Flint,  was  born  at  North  Reading,  Massa- 
chusetts, July  15,  1862.  At  the  age  of  seven 
he  came  to  California  with  his  parents,  who  lo- 
cated at  San  Francisco.  He  was  educated  in 
the  public  schools  of  that  city.  He  was  ad- 
mitted to  the  bar  of  the  State  Supreme  Court, 
after  full  preparation  and  due  examination,  and 
removed  to  Los  Angeles  in  the  year  1898. 
On  October  10,  1892,  he  became  assistant 
United  States  attorney  under  Hon.  M.  T.  Al- 
len, now  on  the  bench  of  the  Superior  Court. 
He  resigned  on  the  4th  of  March,  1893,  and 
formed  a  partnership  with  Judge  Allen.  The 
firm  of  Allen  &  Flint  continued  until  Judge 
Allen  went  on  the  bench,  in  January,  1895. 

Mr.  Flint  entered  upon  his  present  position 
of  United  States  attorney,  by  appointment  of 
President  McKinley,  a  month  after  the  lat- 
ter's  first  inauguration — April  8,  1897.  He  is 
prominent  in  social  as  well  as  in  political  cir- 
cles. He  has  been  a  member  of  the  Chamber 
of  Commerce  since  1897. 


He  was  married  to  Miss  Katharine  J.  Bloss, 
at  Los  Angeles,  on  the  25th  day  of  February, 
1890,  and  has  two  children. 


ROBERT  R.  FOWLER. 

Robert  R.  Fowler  was  born  at  Pawnee 
City,  Pawnee  county.  State  of  Nebraska,  on  the 
15th   day   of  August,   1870,  and   removed  with 


his  parents  to  the  State  of  California  in  the 
year  1874,  being  at  the  time  of  his  arrival  in 
this  State  less  than  four  vears  of  age.  He 
acquired  a  good  common  school  education  in 
the  public  schools.  Afterwards,  in  his  very 
early   manhood  "he,   for   a   time,   entered   upon 


u|, 


James  A.  Devoto 


History  of  the  Bench  and  Bar  of  California. 


1025 


newspaper  work,  being  connected  with  the 
Scliiia  Irrigator  and  the  Madera  Mercury,  and 
ever  since,  to  the  present  time,  has  contrib- 
uted to  various  newspapers  in  this  State.  Some 
of  his  articles  have  attracted  widespread  at- 
tention. Mr.  Fowler  is  possessed  of  more  than 
ordinary  literary  ability.  He  is  an  entertain- 
ing writer,  and  has  a  discriminating  taste  in 
literary  matters.  After  three  years'  study  and 
work  in  a  lawyer's  office  he  was  admitted  to 
practice  before  the  Supreme  Court  of  the 
State  of  California,  in  1895,  and  immediately 
thereafter  commenced  the  practice  of  law, 
first  opening  an  office  in  Madera.  California.  In 
1897  Mr.  Fowler  was  nominated  for  district 
attorney  of  Madera  county  by  the  Republican 
partv,  and  was  elected  by  a  handsome  majority. 
He  is  at  this  time,  October,  1900,  the  incum- 
bent of  the  office  of  district  attorney  of  Madera 
county,  which  position  he  has  so  far  filled  with 
credit  to  himself  and  satisfaction  to  his  con- 
stituents. Mr.  Fowler  is  a  young  man  of 
pleasing  address  and  one  of  the  mos't  popular 
and  promising  young  men  in  Madera  county. 
His  friends  predict  for  him  a  brilliant  career. 


JAMES  A.  DEVOTO. 

James  Augustus  Devoto  was  born  in  the 
great  city  where  he  has  been  in  full  practice 
for  some  years.  Just  a  decade  has  elapsed 
since  his  admission  to  the  bar.  Very  soon 
after  he  began  practice  he  formed  a  partner- 
ship with  that  excellent  lawyer,  and  ex-Dis- 
trict Judge,  E.  D.  Wheeler,  and  this  lasted 
until  Judge  Wheeler's  death,  in  January,  1895. 
His  present  association  is  with  W.  A.  Rich- 
ardson and  P.  V.  Long  (Devoto,  Richardson 
&  Long.)  The  extensive  offices  of  this 
firm  in  Montgomery  block,  San  Francisco, 
include  those  which  Joseph  P.  Hoge  occu- 
pied  over   thirty   years   continuously. 

Mr.  Devoto  was  bom  on  the  29th  of  July, 
1869,  the  son  of  a  merchant  in  good  circum- 
stances. He  went  to  the  public  schools  of 
San  Francisco,  taking  the  full  course  of  studi' 
in  the  boys'  high  school,  and  thereafter  was 
duly  graduated  from  Hastings'  College  of  the 
Law.  He  was  admitted  to  the  bar  by  the 
Supreme  Court  on  May  5,  1890,  three  months 
before  he  became  of  age.  He  then  went  to 
Europe,  and,  after  spending  six  months  in 
visiting  the  principal  cities  and  other  historic 
places,  he  devoted  a  year  to  classical  study  in 
the  University  of  Genoa,  Italy.  Returning 
home,  he  entered  on  the  practice  as  already 
shown. 

Mr.  Devoto  is  of  large  and  strong  build 
physically,  and  his  mind  is  well  stored  with 
varied  knowledge.  He  is  very  ambitious  as 
a  lawyer,  and  very  capable.  His  clients  are 
numerous,  and  he  is  in  the  full  tide  of  pros- 
perity in  a  period  when  this  statement  applies 
to  comparatively  few.  In  politics  he  is  a 
Democrat.  He  has  never  sought  office.  He 
has  been  noble  grand  arch  in  the  Order  of 
Druids;  is  a  thirty-second  degree  Mason,  and, 
of  course,  is  an  active  member  of  the  N.  S. 
G.  W. 


W.   M.  GARDNER. 

Wilber  M.  Gardner  was  born  March  22, 
1861,  near  Elgin,  Illinois.  He  was  educated 
m  the  public  schools.  At  the  age  of  fourteen 
he  left  home,  to  shift  for  himself,  and  enlisted 
as  clerk  in  a  general  merchandise  store.  On 
account  of  serious  rheumatic  troubles,  he  de- 
termined to  come  to  California,  arriving  in 
San  Francisco,  April  18,  1882.  The  first  year 
was  spent  in  traveling  over  the  State.  In 
March,  1883,  he  located  at  Santa  Cruz,  where 
he  has  since  lived,  excepting  two  years  when 
he  worked  for  the  San  Pedro  Lumber  Com- 
pany, at  San  Pedro,  California.  During  his 
illness  with  rheumatism  he  studied  shorthand 
and  typewriting,  and  followed  that  profes- 
sion for  a  number  of  years,  a  portion  of  the 
time  as  shorthand  instructor  in  Chestnut  wood's 
Business  College. 

At  the  election  of  1890  Mr.  Gardner  was 
successful  as  a  candidate  for  Justice  of  the 
Peace  in  Santa  Cruz,  which  office  he  continued 
to  hold  for  eight  years,  during  which  period 
he  improved  his  time  by  studying  law,  taking 
both  the  California  course  and  a  course  from 
the  Western  Correspondence  School  of  Law  of 
Chicago.  He  was  admitted  to  practice  by  the 
Supreme  Court  of  this  State  on  December  30, 
1898,  and  on  January  i,  1899,  formed  a  part- 
nership with  Ed  Martin,  since  which  time  the 
firm  of  Martin  &  uardner  has  been  practicing 
law  at  4  Cooper   street,   Santa   Cruz. 


WILLIAM   A.    GETT. 

It  would  be  difficult  to  point  to  a  better  in- 
stance 'i  what  may  be  accomplished  by  a 
man  of  pluck,  perseverance  and  principle,  than 
is  presented  in  the  life-history  of  this  gen- 
tleman. He  has  risen  to  prominent  rank  in  a 
profession  where  hard,  honest  work  tells  per- 
haps more  surely  than  almost  any  other  line  of 
life;  that,  too,  from  the  narrowest  circum- 
stances of  his  early  days,  and  against  serious 
and  discouraging  obstacles.  He  is  a  native  of 
Sacramento,  where  he  has  lived  all  his  life.  A 
genial,  good-hearted,  honorable,  hard-working 
and  talented  man,  he  deserves  every  whit  of 
his  success.  The  date  of  his  birth  was  July 
17,  1863.  His  father.  Captain  W.  A.  Gett, 
was  a  well-known  pioneer  resident  of  Sacra- 
mento, settling  there  in  the  golden  days  of 
'49,  and  during  his  life  was  a  man  who  held  a 
good  i)osition  in  the  estimation  of  all. 

The  subject  of  this  article  atttendcd  differ- 
ent private  and  public  schools  in  Sacramento. 
For  a  time  he  devoted  his  attention  to  en- 
gineering and  surveying,  but  being  naturally 
of  a  bu.sy  and  aspiring  turn  of  mind,  soon  aban- 
doned those  pursuits  for  the  study  of  the  law. 
He  entered  the  law  office  of  Jones  &  Martin, 
and,  two  weeks  after  attaining  his  majority, 
passed  a  brilliant  examination  Iiefore  the  Su- 
preme Court  of  California,  and  was  admitted 
to  j)ractice.  By  his  quickness  of  judgmciu,  le- 
gal skill  and  careful  study  of  his  cases,  he  soon 
won  reputation  and  prosperity  in  his  profes- 
sion.    He  believes  firmly  in  the  dignity  of  the 


1026 


History  of  the  Bench  a)id  Bar  of  California. 


lawyer  s  calling.  He  owes  his  success  largely 
to  the  effective  course  pursued  by  him  in  sin- 
gling out  the  most  salient  point  of  his  case, 
letting  the  rest  go.  and  reserving  all  his 
strcnsrth  for  that  point. 

Mr.  Gett  is  a  Democrat,  of  unswerving 
views.  He  has  been  tendered  the  nomination 
for  many  offices  of  responsibility  and  honor, 
but  has  always  declined  them,  aiming  rather 
to  place  himself  at  the  very  lead  in  his  pro- 
fession. But  offices  of  trust  and  responsi- 
bility always  come  to  those  who  are  worthi^; 
of  them,  whether  they  seek  them  or  not.  Mr. 
Gett  has,  nevertheless,  been  of  great  service 
to  his  party  as  a  speaker  and  worker  during 
several  campaigns. 

As  is  natural  with  a  gentleman  of  such  an 
active  disposition,  he  is  a  member  of  many 
fraternal  orders.  He  is  a  past  president  of 
Sacramento  Parlor  No.  3,  N.  S.  G.  W.,  and 
has  been  a  delegate  at  several  sessions  of  the 
Grand  Parlors,  on  which  occasions  he  has  al- 
ways been  one  of  the  most  practical  workers. 
He  is  a  member  of  El  Dorado  Lodge,  I.  O.  O. 
F.,  and  is  past  chieftain  of  the  Sacramento 
Caledonian  Association.  In  Masonic  circles  he 
is  a  member  of  Tehama  Lodge  No.  3,  Sacra- 
mento Commandery.  K.  T.,  and  Islam  Temple, 
Nobles  of  the  Mystic  Shrine.  On  Septem- 
ber 21.  1892.  he  was  united  in  marriage  to  Miss 
Ema  Sweeney,  and  his  home  is  as  happy  as  his 
professional  life  has  been  successful.  His 
genial  personality  has  drawn  around  him  a 
large  circle  of  warm  friends,  and  he  is  one  of 
the  most  popular  members  of  the  Sacramento 
bar.  as  is  evidenced  by  what  is  spoken  of  him 
by  his  clients  and  the  judiciary. 

He  has  done  his  duty  to  the  State  as  a  sol- 
dier, having  served  ten  years  in  the  N.  G.  C.. 
and  being  placed  on  the  retired  list,  with  the 
rank  of  major. 

We  knew  Mr.  Gett  in  boyhood.  In  this  no- 
tice of  him  we  use  the  information  given  in  the 
"Historv  of  Sacramento  County." 


extraction,  his  grandfather  on  the  maternal 
side  having  been  an  army  officer  under  Na- 
poleon, in  the  battle  of  Waterloo.  His  father, 
Conrad    Geis.    served    with    distinction    in    the 


BEN  F.  GEIS. 


Ben  F.  Geis  was  born  in  Indiana  Countj', 
Pennsylvania,  on  the  27th  day  of  April,  1862. 
He  was  educated  at  the  Iron  City,  and  St.  Vin- 
cent, Colleges,  in  his  native  State.  After  fin- 
ishing a  commercial  cour^^e  he  followed  the 
occupation  of  bookkeeper  until  1879,  when  he 
came  to  the  Pacific  Coast.  After  traveling  over 
Nevada.  Washington  and  Oregon,  he  finally 
located  in  Sacramento,  where  he  subsequently 
took  up  the  study  of  law,  and  where,  in  1885. 
he  was  admitted  to  the  bar.  He  has  been  City 
Attorney  for  the  town  of  Willows  since  1886, 
except  during  his  incumbency  as  District  At- 
torney. He  is  a  pioneer  member  of  the  Glenn 
County  bar,  having  located  at  Willows  prior  to 
the  creation  of  the  county.  He  was  elected  the 
first  District  Attorney  of  the  County,  and  has 
held  that  position  twice,  his  last  term  having 
expired  on  the  ist  of  January.  1899.  His  par- 
ents are  native-born  Pennsylvanians.  His  grand- 
parents on  his  father's  side  were  Germans, 
while  those  on  his  mother's  side  were  of  French 


Civil  War,  but  lost  his  life  just  at  the  close 
of  the  war,  while  yet  in  the  service.  Mr.  Geis 
is  now  a  member  of  the  firm  of  Geis  &  Al- 
bery,  at  Willows. 


HANSFORD    B.    GRIFFITH. 

Mr.  Griffith  is  a  native  of  Virginia  and  was 
born  in  1868.  He  spent  his  boyhood  days  on 
an  old  plantation.  He  came  with  his  parents 
to  California  at  the  age  of  fourteen  years,  and 
settled  in  Fresno,  where  he  commenced  busi- 
ness on  his  own  responsibility.  After  fouc 
3'ears  of  active  life  and  at  the  age  of  eighteen, 
he  returned  to  his  native  State  and  entered 
Emery  and  Henry  College  in  the  sophomore 
class,  and  was  graduated  with  honors  in  June, 
1890.  In  the  fall  of  1890  he  entered  the  law 
department  of  the  University  of  Virginia,  but 
was  called  home  on  account  of  the  death  of 
his  brother,  E.  J.  Griffith.  After  an  expe- 
rience of  two  years  in  the  wholesale  carriage 
business  in  Fresno  and  at  the  age  of  twenty- 
four  years,  he  located  in  San  Jose  and  took 
up  again  the  study  of  law.  In  January,  1895, 
he  was  admitted  to  practice  law  in  the  Su- 
preme Court  of  the  State,  and  entered  an 
office  in  San  Jose.  In  February.  1895,  he  was 
married   to    Miss   Luna   Compton. 

Mr.  Griffith  entered  into  the  law  practice  at 
the  age  of  twenty-six  with  a  wide  business  ex- 
perience, and  met  with  success  from  the  very 
beginning.  In  1897  he  removed  from  San  Jose 
and  located  his  residence  in  Berkeley,  Ala- 
meda county,  California,  and  opened  an  office 
in  the  Examiner  building.  San  Francisco,  at 
W'hicli  place  he  has  been  located  ever  since.  He 
has  participated  as  attorney  and  counsellor  in 
some  very  important  cases. 

Mr.  Griffith  is  an  enterprising  and  far-seeing 
man.     In  iSg8  he  conceived  the  idea  that  there 


History  of  the  Bench  and  Bar  of  California. 


1027 


%..is  a  great  future  in  the  production  of  Cali- 
fc  /nia  oil  and  petroleum.  He  is  one  of  the 
organizers  and  a  director  in  the  famous  Inde- 
pendence Oil  Company,  of  Coalinga,  and  has 
made  by  reason  of  his  splendid  business  ca- 
pacity a  large  fortune  within  the  past  two 
years,  out  of  the  successful  promotion  of  va- 
rious oil  enterprises. 

Mr.  Griffith  has  been  tendered  nominations 
for  positions  of  prominence  politically,  but 
has  refrained  from  entering  into  active  poli- 
tics. He  rather  prefers  business  activity  to 
political  position.  He  is  a  dyed-in-the-wool 
Democrat  of  the  old  school,  earnest  and  con- 
scientious, believing  in  the  policy  of  his  party 
as  laid  down  by  the  Kansas  City  convention  in 
1900.  He  is  opposed  to  the  holding  of  the 
Philippines  by  force  and  the  acquisition  of 
territory  by  the  bayonet.  Mr.  Griffith  is  now 
in  his  thirty-second  year,  possessed  of  a  bright 
mind  and  keen  business  sagacity,  which  be- 
speaks for  him  an  enviable  career. 

HERBERT  J.  GOUDGE. 

Mr.  Goudge  was  born  in  London,  England. 
April  26,  1863.  He  is  descended  from  a  Huge- 
not  family,  which  emigrated  from  France  to 
England  upon  the  revocation  of  the  Edict  of 
Nantes,  some  of  whom  subsequently  settled  in 
the  state  of  New  York.  Mr.  Goudge  was  edu- 
cated at  the  City  of  London  School  and  Kings 
College,  London.  He  came  to  California  in 
ing  to  Los  Angeles  in  1895,  he  in  that  year  or- 
ganized, and  has  ever  since  been  a  director  of, 
a  successful  building  and  loan  association. 
Since  the  passage  of  the  bankruptcy  act  he 
has  devoted  considerable  attention  to  bank- 
ruptcy law.  He  is  the  attorney  for  one  of  the 
largest  eastern  surety  companies,  and  in  Jan- 
uary, 1901,  he  was  appointed  first  assistant  city 
attorney  of  the  city  of  Los  Angeles. 


GUSTAV  GUTSCH. 


Gustav  Gutsch,  born  in  1861,  at  Tribsees,  in 
the  kingdom  of  r'russia,  comes  from  a  family 
of  military  traditions.  His  grandfather,  Carl 
Gutsch,  had  enlisted  in  the  Prussian  army 
corps  of  General  York,  which,  by  the  orders 
of  the  first  Napoleon,  was  obliged  to  partici- 
pate in  the  latter's  memorable  campaign 
against  Russia.  As  every  one  knows,  the  fate 
of  that  war  was  determined  by  the  burning 
of  Moscow,  and  the  retreat,  resulting  in  almost 
the  annihilation  of  the  army  led  by  Napoleon. 
General  York  then,  without  even  consulting 
his  king  (who,  however,  subsequently  ratified 
the  act),  entered  into  a  treaty  with  the  Rus- 
sian government,  whereby  the  latter  agreed 
to  stand  by  the  Prussians  in  their  inii)en(ling 
struggle  for  independence.  During  the  fol- 
lowing year,  York's  corps  was  assigned  to  the 
army  of  Blucher,  and  bore  the  brunt  of  most 
of  the  fierce  battles  culminating  in  the  decisive 
victory  of  the  allied  Prussian,  Austrian  and 
Russian  armies  at  Lcipsic,  after  a  desperate 
struggle  lasting  for  four  days.  It  was  during 
the    hottest    of    that    fight,    on    October    i8th. 


1813,  that  Carl  Gutsch,  advancing  upon  one 
of  the  captains  of  Napoleon's  Imperial  Guard, 
who  was  defending  himself  with  his  sabre, 
threw  his  powerful  arms  around  the  captain, 
disarmed  him  and  made  him  a  prisoner.  He 
took  the  sabre,  and  that  trophy,  beautifully 
engraved,  is  still  kept  by  the  family  as  a 
souvenir  of  one  of  the  most  important  events 
in    European   history. 

The  grandfather's  warlike  spirit  was  trans- 
mitted to  the  son,  Gustav  Gutsch,  Sr.  He  in 
1848,  while  a  student  of  law  at  the  University 
of  Berlin,  and  owing  no  allegiance  whatever  to 
the  Duke  of  Augustenburg,  then  at  war  with 
the  king  of  Denmark,  enlisted  in  the  cavalry 
of  the  duKe,  and  took  part  in  a  number  of 
engagements  no  less  exciting,  though  of  less 
historical  consequence,  than  the  battle  of  Leip- 
sic.  Having  gratified  his  desire  for  military 
achievements,  G.  Gutsch,  Sr.,  went  back  to 
his  legal  studies,  and,  after  completing  them, 
devoted  himself  to  the  service  of  his  govern- 
ment, advancing  in  rank  by  successive  appoint- 
ments, until  he  became  the  head  of  the  depart- 
ment of  internal  revenue  and  customs  for  the 
province  (co-extensive  with  the  former  king- 
dom) of  Hanover.  In  1893,  acting  chiefly 
upon  the  advice  of  his  son.  who  visited  his 
parents  about  that  time,  he  asked  and  obtained 
leave  to  retire  from  the  government  service  on 
his  pension  provided  by  law ;  and  in  the  fol- 
lowing year,  he  concluded,  after  consulting 
with  his  wife,  Mrs.  Minna  Gutsch,  to  make 
the  State  of  California  his  abode.  Both  Mr. 
and  Mrs.  Gutsch,  Sr.,  now  live  happily  and 
comfortably  in  their  own  home  on  Clinton 
avenue  in  the  beautiful  city  of  Alameda, 
amidst  fragrant  roses  aiid  trees,  with  which 
their  garden  abounds,  and  enjoy  the  genial 
climate  of  California  as  well  as  the  outlook, 
from  their  windows,  upon  the  vast  expanse 
of  the  bay  of  San  Francisco,  with  its  mountain 
surroundings,  and  ever  varying  formations  of 
clouds. 

Owing  to  the  frecjuent  changes  of  residence 
incident  to  the  governmental  career  of  his 
father,  Gustav  Gutsch,  Jr.,  spent  the  years  of 
his  early  youth  in  various  parts  of  the  father- 
land. From  1870  to  1875  he  frequented  the 
"gynuiasium"  at  Cassel,  Hesse-Nassau.  Tliis 
was  the  school  where,  in  1874.  Prince  Wilhelm 
of  Prussia,  now  Emperor  Wilhelm  II.  was 
enrolled  as  a  pupil,  and  where  he  subsequently, 
after  passing  examinations,  took  his  diploma 
admitting  him  to  the  university,  .'\fter  attend- 
ing two  other  "gynmasia."  at  Magdebur-^ 
Prussia,  and  Munich,  Bavaria,  Gutsch,  Jr., 
at  the  last-named  city,  was  granted  his 
diploma,  and  shortly  afterwards  went  to  Rome, 
enrolling  himself  as  a  law  student  in  the  uni- 
versity built  by  the  famous  Michael  Angelo. 
The  impressions  which  the  historical  reminis- 
cences of  the  Eternal  City,  and  of  Naples  and 
other  places  which  he  visited  during  vacation, 
together  with  the  manners  and  thoughts  of  a 
people  wholly  foreign  to  him.  made  on  his 
youthful  and  susceptible  mind,  have  largely 
shaped  his  subsequent  course.  Being  fond  of 
the  Romanic  tongues,  and  with  a  thorough 
training    in     Latin,     received    at     the    German 


1028 


History  of  the  Bench  and  Bar  of  California. 


schoui^,  he  (luickl}-  acquired  a  fluent  use  of  the 
Italian  language.  By  means  of  it,  he  managed 
to  work  himself  into  an  understanding  of  the 
spirit  and  sentiments  of  his  Italian  fellow- 
students,  instead  of  remaining  a  stranger  to 
them,  as  usually  happens  to  visitors  of  foreign 
countries  in  their  relations  to  the  natives; 
and,  owing,  also,  to  his  intercourse  with  Eng- 
lishmen and  Americans,  large  numbers  of 
whom  spend  the  winter  in  Rome  every  year, 
he  l)ecame  quite  cosmopolitan  in  his  views. 
This  change  was  approved  by  Ferdinand  Greg- 
orovius,  one  of  the  most  illustrious  modern 
historians  of  Germany,  and  an  intimate  friend 
of  the  Gutsch  family,  who  then  lived  in  Rome, 
and  who  frequently  accorded  the  benefit  of  his 
interesting  company  to  the  young  student. 
The  latter,  by  degrees,  realized  the  good  traits 
existing  in  men  different  from  him  in  nation- 
ality, views  and  traditions,  and,  before  the 
close  of  his  year's  course  at  Rome,  banished 
from  his  mind  the  narrowness  of  ideas  which 
is  not  patriotism,  though  infrequently  usurps 
the  name  of  patriotism,  but  is  merely  an  inabil- 
ity to  look  upon  the  achievements  and  advan- 
tages of  other  nations  from  an  impartial  stand- 
point. The  next  aim  of  our  friend  was  the 
University  of  Geneva  in  Switzerland.  There 
he  attended  law  courses  and  was  confirmed  in 
his  new  views  of  life  through  associations 
with  other  students,  assembled  at  that  famous 
center  of  learning  and  humanitarian  thoughts. 
At  the  end  of  the  "semester"  he  returned  to 
Germany  ?nd  was  successively  matriculated  as 
a  student  of  law  at  the  universities  of  Munich 
and  Berlin.  During  the  same  period  he  served 
his  year  (as  a  "volunteer")  in  the  German 
army.  In  1883  he  gained  his  admission  to  prac- 
tice, after  a  rigid  examination  by  the  highest 
court  of  Prussia,  and  about  three  weeks  later, 
having  proved  his  qualification  by  a  still 
severer  test,  to  which  he  was  put  by  the  legal 
faculty  of  the  University  of  Leipsic,  he  was 
by  that  body  promoted  to  the  highest  academ- 
ical degree  within  its  gift,  that  of  "Doctor 
Juris  Utriusque."  The  Prussian  government 
then  appointed  him  "referendary,"  that  is,  a 
practitioner  in  the  courts  of  justice,  and  sent 
him  to  Christburg,  a  small  town  in  the  eastern 
part  of  Prussia,  where  for  some  months  he 
had  to  do  duty,  as  is  customary,  in  order  to 
familiarize  himself  with  the  requirements  of 
actual  practice.  But  he  had  long  previously 
made  up  his  mind  not  to  pursue  the  slow  and 
monotonous  career  of  an  employee  of  the 
government.  His  liberal  ideas  and  the  effects 
of  his  studies,  associations  and  experiences 
abroad,  caused  him  to  look  for  a  wider  and 
more  independent  field  of  activity.  Me  had 
therefore  decided  to  go  to  the  United  States  ; 
and  after  resigning  from  his  position  as  refer- 
endary and  obtaining  leave  from  his  govern- 
ment to  emigrate,  he  came  to  San  Francisco  in 
the  spring  of  1S84.  Here  he  devoted  himself 
at  first  to  the  study  of  the  English  language, 
which  he  has  since  mastered  completely,  both 
in  speech  and  in  writing,  and  simultaneously, 
liy  constant  reading  and  comparison  with  the 
Roman  law,  acquired  familiarity  with  the 
principles    of    the    common     law.     so    that     in 


January,  1887,  after  an  e.xamination  directed 
by  Justice  E.  W.  McKinstry,  he  was  admitted 
to  the  bar  by  the  Supreme  Court  of  the  State. 
For  about  four  years  thereafter  he  practiced 
as  a  clerk  in  various  law  offices,  especially  in 
that  of  Mr.  Henry  E.  Highton,  with  whom  he 
stayed  for  almost  three  years.  In  1891  Mr. 
William  Loewy,  attorney  for  the  German  con- 
sulate at  San  Francisco,  offered  him  a  i)artn(.r- 
ship,  which  he  accepted.  Thus  the  law  firm 
of  Loewy  &  Gutsch  was  established.  Its 
business  has  been  large  and  successful.  A  con- 
siderable portion  of  it  has  come  to  the  firm 
through  various  consulates  of  San  Francisco 
Messrs.  Loewy  and  Gutsch  represent  m"any 
foreign  claimants  of  properties  situated  in  Cali- 
fornia, and  in  the  neighboring  States,  and  a 
number  of  interesting  questions  of  interna- 
tional law  have  arisen  in  the  course  of  their 
practice. 

The  subject  of  extradition  was  fully  and 
ably  treated  by  them  in  the  case  of  Max  Hohl, 
a  forger,  who  had  fled  from  Hamburg  and 
deemed  himself  safe  from  capture  in  this 
State,  but  was  at  last,  after  a  determined 
contest  in  the  United  States  Circuit  Court, 
surrendered  and  returned  to  the  place  of  his 
crime.  Some  two  years  ago  the  firm  became 
the  representative  of  the  so-called  "German 
heirs"  of  Charles  Lu.x.  deceased,  whose  estate, 
valued  at  several  million  dollars,  was  included 
in  the  assets  of  "Miller  &  Lu.x,"  the  largest 
land  and  cattle-owners  on  the  Pacific  coast. 
Loewy  &  Gutsch,  concluding  that  the  terms 
of  the  incorporation  of  "Miller  &  Lu.x," 
effected  shorth'  prior  to  their  employment, 
were  injurious  to  the  interests  of  their  clients, 
immediately  commenced  a  suit  in  equity  in 
the  Circuit  Court,  asking  that  the  incorpora- 
tion be  declared  illegal  and  void,  and  demand- 
ing an  accounting  from  the  surviving  partner. 
After  about  a  year  of  litigation,  a  compromi.se 
was  reached  to  the  satisfaction  of  all  the  par- 
ties concerned.  The  German  heirs,  by  the 
arrangement,  were  freed  from  an  indebtedness 
which  had  threatened  to  destroy  their  inter- 
ests, and  in  lieu  of  the  legacies  given  to  them 
by  the  will  of  Charles  Lux,  accepted  a  corre- 
sponding number  of  shares  of  the  corporate 
stock.  Loewy  &  Gutsch  now  represent  them 
in  their  new  capacity  as  stockholders  of  "Mil- 
ler &  Lux." 

In  the  fall  of  i8q8,  Mr.  Gutsch,  in  view  of 
his  knowledge  of  the  civil  law  and  of  the  de- 
gree conferred  on  him  by  the  University  of 
Leipsic.  was  appointed  "honorary  lecturer  in 
jurisprudence"  at  the  State  University.  The 
work  done  by  him  in  that  institution  is  de- 
scribed in  another  part  of  this  book.  (See 
"University   of   California.") 


WALTER  F.  HAAS. 


Mr.  Haas,  who  is  referred  to  in  the  sketch 
of  the  veteran  S.  O.  Houghton,  was  born  in 
Missouri  in  1869.  He  came  to  California,  and 
settled  at  Los  Angeles  in  1884.  He  was  grad- 
iiatcfl  from  the  High  .School  of  that  city  in 
i88y.      lie    jirepared    for    the    bar    in    Colonel 


History  of  the  Bench  and  Bar  of  California. 


1029 


Houghton's  office,  and  was  admitted  to  the  har 
by  the  Supreme  Court  in  1891.  He  was  elected 
city  attorney  of  Los  Angeles  in  the  fall  of 
1898,  and  served  the  two  years'  term  ending 
in  the  first  week  of  January,  1901.  Colonel 
Houghton  efficiently  assisted  him  in  the  admin- 
istration of  that  office. 

Mr.  Haas  is  a  lawyer  of  good  ability,  and 
a  young  man  of  much  promise.  He  is  unmar- 
ried. Since  the  expiration  of  his  term  of  office 
as  city  attorney  he  has  resumed  active  practice, 
being  associated  with  Frank  Garrett,  under  the 
firm  name  of  Haas  &  Garrett. 


ROBERT  LEE  HARGROVE. 

Mr.  Hargrove  was  born  near  Atchison,  Kan., 
March  29,1868.  His  father, L.  B.Hargrove,  who 
was  sheriff  of  the  City  and  County  of  Atchison 
in  1883,  1884  and  1885,  and  one  of  the  largest 
live  stock  and  grain  dealers  in  the  northwest, 
was  born  in  Lafayette  county.  Missouri,  in 
1835,  and  settled  near  the  present  site  of  Atchi- 
son in  1852.  He  came  to  California,  overland, 
in  1857,  and  returned  to  Atchison  by  Panama 
in  1858.  At  Atchison  he  married  in  1859,  Sarah 
E.  Duncan,  a  native  of  Kentucky.  Robert  L.'s 
grandfather,  John  Hargrove,  was  born  near 
Nashville,  Tenn.,  in  1790,  and  fought  under 
General  Jackson  at  the  battle  of  New  Orleans, 
in  1812.  Robert  L.'s  father  served  in  the 
Union  army  and  was  wounded  at  the  battle  of 
the  Little  Blue,  below  Kansas  City. 

Robert  L.  received  his  early  education  in  the 
public  schools  in  Atchison  county.  In  1884 
he  entered  the  United  Presbyterian  Academj 
at  Hiawatha,  Kansas,  where  he  received  a 
commercial  training.  Leaving  the  Academy  in 
1886.  he  clerked  in  a  store  for  a  time,  and 
then  opened  up  a  store  on  his  own  account. 
This  he  sold  out  and  emigrated  to  Wichita 
county,  Kansas,  and  taught  school  in  that 
county  during  the  years  1887,  1888  and  1889. 
In  1887  vvhile  teaching  school  he  took  up  the 
study  of  law,  studying  the  Pentateuch,  Green's 
English  History,  Shakespeare,  and  Chitty's 
Blackstone  under  the  tutorship  of  Norris 
Sprigg,  Esq.  After  mastering  those  studies 
he  took  up  the  regular  study  of  law  in  the 
offices  of  Coan  &  Hall,  county  and  deputy 
county  attorneys,  respectively.  Saturdays  and 
vacations  were  spent  in  their  offices.  He  also 
followed  his  studies  in  the  evenings  after 
school  hours.  He  was  admitted  to  practice 
law  in  all  the  courts  of  the  State  of  Kansas 
on  November  23rd.  1889.  Having  finished  his 
last  term  of  school  in  March,  i8go,  he  came  to 
California  in  April.  1890,  and  entered  the  law 
offices  of  Van  Meter  &  Warlow.  in  Fresno. 
There  he  familiarized  himself  with  the  Cali- 
fornia codes.  He  finally  located  in  Madera, 
California.  May  6th,  i8go,  where  he  has  con- 
tinuously practiced  law  ever  since.  He  was 
admitted  to  practice  in  the  Supreme  Court  of 
this  Slate  on  August  21.  1894,  and  was  ad- 
mitted to  practice  in  the  United  States  Circuit 
Court  and  the  United  States  Circuit  Court  of 
Appeals  at  San  Francisco,  on  August  23rd, 
1804. 


By  energy,  industry  and  studious  habits, 
Mr.  Hargrove  has  built  up  a  large  and  exten- 
sive practice  and  has  been  remarkably  success- 
ful in  his  chosen  profession.  His  temperate 
habits,  persistency  and  dignity  of  character, 
as  well  as  a  thorough  training  and  large  expe- 
rience in  the  commercial  world,  have  placed 
him  in  the  position  of  one  of  the  leadmg  at- 
torneys and  counsellors  of  the  State.  From 
1891  to  i8of  he  was  attorney  and  one  of  the 
directors  of  the  Bank  of  Madera.  The  Bank 
of  Madera  being  an  adjunct  of  the  Pacific 
Bank  of  San  Francisco,  was  compelled  to  go 
into  liquidation.  In  December.  1894.  he  was 
appointed  president  and  attorney  for  the  Bank 
of  Madera  in  liquidation  at  the  request  of  the 
bank  commissioners  of  the  State  of  California, 
and  has  occupied  that  position  ever  since.  Dur- 
ing this  period  the  Bank  of  Madera  paid  its 
depositors  in  full,  dollar  for  dollar,  amounting 
to  over  $80,000.  Mr.  Hargrove  is  at  the  pres- 
ent time  attorney  for  the  Raymond  Granite 
Company,  which  operates  the  largest  granite 
quarries  and  eranite  works  in  the  State.  He 
is  also  attorney  for  the  Madera  Canal  and  Irri- 
gation Company,  the  only  irrigation  .system 
in  the  county  of  Madera,  and  is  also  attorney 
for  the  Italian  Swiss  Colony  and  Agricultural 
Company,  which  operates  the  largest  and  most 
extensive  wineries  in  the  State.  He  also  holds 
many  other  responsible  positions.  He  is  a 
member  in  good  standing  of  Court  Madera. 
No.  749,  I.  O.  F. ;  of  Madera  Lodge  No.  327, 
I.  O.  O.  F. ;  Madera  Lodge,  No.  280.  F.  and 
A.  M. :  Trigo  Chapter,  No.  69.  R.  A.  M. ;  Ma- 
dera Chapter,  No.  92,  O.  E.  S. ;  Madera  Re- 
I)ekah  Lodge  No.  159,  I.  O.  O.  F.,  and  Ma- 
dera Camp.  No.  161,  W.  of  W.  He  is  at  the 
present  time  Master  of  Madera  Lodge.  F.  and 
A.  M. :  trustee  and  chaplain  of  Madera  Lodge 
I.  O.  O.  F. ;  secretary  and  past  patron  of  Ma- 
dera Chapter,  O.  E.  S. :  and  financial  secre- 
tary of  Court  Madera,  I.  O.  F..  which  position 
he  has  held  for  the  last  nine  years.  He  is  a 
member  of  Verba  Buena  Lodge  of  Perfection 
No.  I.  A.  &  A  Scottish  Rite  Masons,  of  the 
Orient  of  San   Francisco. 

On  November  27.  1891,  Mr.  Hargrove  mar- 
ried Coral  Wreath  Garland,  a  native  of  Rye 
Beach.  N.  H.  They  have  one  chid,  Robert 
Lee  Hargrove,  Jr.,  born  Septcmlier  25,  1894. 
Mrs.  Hargrove  is  the  daughter  of  C.  W.  Gar- 
land, who  was  a  captain  in  the  Ihiion  army, 
stationed  at  the  Presidio,  San  Francisco,  dur- 
ing the  Civil  War,  and  who  in  the  early  sev- 
enties was  assistant  I'nited  Stales  district  at- 
torney for  the  Western  District  of  Texas, 
under  his  l)rothcr,  C.  T.  Garland,  who  was 
United  States  district  attorney.  C.  T.  Gar- 
land from  1869  to  1873.  also  was  judge  of  the 
District  Court  for  the  Eighth  and  Fourteenth 
judicial  districts  of  Texas,  and  while  judge, 
established  a  rule  in  his  court  that  in  all  cases 
where  negroes  were  prosecuted  for  criminal 
offenses,  the  jury  should  be  composed  of  both 
white  and  black  men.  So  he  became  widely 
known  as  the  author  of  the  "Mixed  Jin-y  Sys- 
tem." Jud^c  Garland's  rule  was  attacked  by 
the  legal  fraternity  of  Texas  and  the  matter 
was    carried    to    tlie    Supreme    Court    of    the 


1030 


History  of  the  Bench  and  Bar  of  California. 


United  States  in  the  cclel)ratcd  "Francois 
case."  The  Supreme  Court  upheld  Judge 
Garland's  rule.  C.  W.  and  C.  T.  Garland  are 
lineal  descendants  of  Samuel  Adams,  and  their 
great-grandfather,  Colonel  Benj.  Garland,  was 
a  colonel  in  the  Revolutionary  Army  and  was 
in  the  battle  of  Bunker  Hill. 


FRANCIS  J.  H.  HAMBLY. 

Francis  James  Hele  Hamply  was  born  in  the 
city  of  Belleville,  Canada,  April  21,  1874.  He 
is  a  son  of  the  late  James  Hele  Hambly,  promi- 
nent in  the  politics  of  that  country  for  many 
years,  and  a  grandson  of  David  Roblin,  M.  P. 
"p.  Napanee,  known  throughout  Canada  as  one 
of  her  ablest  men. 


position  of  head  clerk  incidentally,  and  in 
October,  1888,  was  admitted  to  practice  in 
the  Supreme  Court  of  Kansas.  A  month 
later,  he  was  granted  a  certificate  by  the  Cali- 
fornia Supreme  Court,  on  motion.  Then  fol- 
lowed his  novitiate  in  the  practice  of  law. 
He  settled  in  Dixon,  Solano  County.  Three 
years  later  he  removed  to  San  Francisco, 
where  he  remained  two  years.  Then  his  de- 
sire for  travel  got  the  better  of  him,  and  he 
spent  two  years  in  the  cast,  engaged  in  jour- 
nalistic work. 

In  California  he  had  filled  positions  on  the 
San  Francisco  Chronicle  and  Call,  and 
"worked  up"  considerable  of  the  news  which 
sprang  out  of  the  People's  Home  Savings 
Bank  muddle,  and  the  criminal  libel  case  insti- 
tuted   by    Dr.    Mark    Levingston    against    the 


Mr.  Hambly  read  law  under  Senator  H.  V. 
Morehouse,  at  San  Jose,  and  was  admitted  to 
practice  by  the  Supreme  Court  of  California 
in  April,  1895.  The  present  partnership  of 
Morehouse  &  Hambly  at  the  Garden  City 
was   formed  January   i,   1897. 


PAUL  C.   HARLAN. 

Paul  C.  Harlan  was  born  in  Bellefontaine, 
Ohio,  on  September  11.  1866,  and  came  to 
California,  with  his  parents,  in  1875.  His 
youth  was  varied  by  many  changes  of  resi- 
dence, intersnersed  with  visits  to  the  home  of 
his  childhood,  in  Ohio,  after  which  he  entered 
upon  a  college  course  at  Oakland,  in  this 
State,  with  the  determination  to  make  the  law 
his   life's  occupation. 

At  the  age  of  twenty,  he  began  the  study  of 
law  in  earnest,  and  left  for  Wichita,  Kansas, 
then  the  center  of  a  monster  real  estate, boom, 
which  lured  speculators  and  adventurous 
spirits  from  all  over  the  Union.  There  Mr. 
Harlan  entered  the  office  of  D.  W.  Welty, 
author  of  the  work  on  "Assessments,"  and 
at  that  time  chief  counsel  of  the  Wichita 
Savings  Bank.  He  studied  in  Mr.  Welty's 
office   for   a   little  over   a   year,   occupying  the 


Civic  Federation,  when  that  body  opposed  the 
appointment  by  Governor  Budd,  of  Dr.  Lev- 
ingston as  health  officer.  Five  members  of 
the  Federation  were  arrested,  but  escaped 
conviction  by  a  technical  point.  While  on 
the  Chronicle,  Mr.  Harlan  had  full  charge  for 
a  time,  of  the  railroad  news.  He  "dropped 
off"  at  Los  Angeles,  on  his  way  East,  and 
reported  for  the  Times,  the  criminal  assault 
case  against  Clifton  E.  Mayne.  the  heresy 
case  of  the  Rev.  Bert  Howard  before  the 
Presbytery,  and  the  prosecution  of  Anita  Wil- 
lard,  the  discoverer  of  "Persian  Bloom"  and 
"Ocean  Spray."  TTie  charge  against  Anita 
was  that  of  swindling  ambitious  and  not- 
over-handsome  ladies  by  the  use  of  the  mails. 
Mr.  Harlan  also  kept  his  eye  on  the  Los  An- 
geles oil  fields,  and  the  Standard  Oil  Com- 
pany, incidentally,  for  the  Times. 

In  Chicago,  that  hot-bed  of  anarchy  and 
camp  of  labor  unions,  he  "did"  labor  news 
for  the  Record.  His  work  for  the  United 
Press  and  Associated  Press  in  New  York 
City  included  the  trial  of  electrical  superin- 
tendent Smith,  of  the  fire  department,  on  a 
charge  of  defrauding  the  city  of  $250,000,  by 
"standing  in"  with  contractors.  This  trial 
lasted  eight  months,  and  resulted  in  the  ac- 
quittal  of   Smith.     The   stand  had  been   taken 


History  of  the  Bench  and  Bar  of  California. 


1031 


b'-  Mr.  Harlan,  early  in  the  trial,  that  the 
whole  thing  was  spite-work  persecution, 
backed  only  b}-  unsuccessful  bidders  on  con- 
tracts; and  this  position  was  justified  by  the 
outcome.  From  the  Central  Park  "Zoo"  he 
sent  stories  by  'phone  to  the  press  associa- 
tions, which  amused  thousands  of  the  admirers 
of  animals;  and  Bellevue  Hospital,  the  larg- 
est charity  hospital  in  the  United  States,  was 
his  field  of  labor  in  the  summer  of  1896,  when 
people  fell  dead  in  the  streets,  and  others 
died  while  asleep  and  tumbled  dizzily  from 
windows  and  down  stairways  to  death,  over- 
come by  the  heat. 

Mr.  Harlan's  eastern  experiences  included. 
also,  a  delicate  mission  to  Liverpool,  on  the 
White  Star  Liner  "Georgic,"  then  the  second 
largest  freight  vessel  in  the  world.  Her  cargo 
included  780  horses,  1500  cattle  and  820  sheep, 
and  all  this  stock  was  insured.  It  was  the 
duty  of  the  ship  company  to  care  for  and 
feed  the  stock,  under  the  direction  of  fore- 
men, who  represented  the  individual  owners 
of  the  stock.  Mr.  Harlan  was  requested  to 
investigate,  for  a  big  insurance  concern,  the 
manner  in  which  the  stock  was  cared  for,  and 
the  effect  of  allowing  stock  on  a  vessel  to  be 
heavily  insured.  The  details  of  this  investi- 
gation are,  naturally,  a  closed  book  to  the 
public,  but  it  resulted  in  several  radical 
■changes  in  the  conditions  imposed  prelimi- 
nary to  the  placing  of  risks  on   live  stock  to 

In  the  falj  of  1897,  Mr.  Harlan  was  in  Los 
Angeles,  and  after  a  short  tour  of  duty  on  the 
Herald,  he  went  to  San  Francisco,  and,  when 
the  War  with  Spain  broke  out,  he  threw  the 
comforts  of  civil  life  to  the  winds  and  sailed 
away  with  the  First  California  Regiment  to 
fight  in  the  far-away  and  then-mysterious 
Philippine  Islands,  for  his  countrv.  When  his 
regiment  returned  and  was  mustered  out.  he 
turned  to  the  quieter  duties  of  a  civilian,  with 
the  same  promptness  which  characterized  his 
venture  upon  the  soldier's  life. 

We  have  tried  to  write  of  his  interesting 
life  as  a  journalist  in  a  sort  of  reporter's 
style.  He  is  now  devoting  his  fine  natural 
gifts  and  gathered  learning  to  legal  business, 
and  is  rapidly  achieving  success  at  the  bar. 
His  office  is  in  Fairfield,  Solano  county. 


L.   G.   HARRIER. 


L.  G.  Harrier  has  spent  his  life  in  Califor- 
nia, his  native  state.  He  is  a  graduate  of  the 
Vallejo  High  School  and  of  the  State  Uni- 
versity. At  Berkeley  he  was  a  member  of 
Beta  Theta  Pi.  a  college  fraternity,  which  has 
on  its  lists  a  host  of  the  leading  lawyers  of 
the  State. 

Mr.  Harrier  took  up  .school  teaching  after 
his  graduation,  and  followed  it  by  a  period  of 
journalsim.  He  was  editor  of  the  Vallejo 
Clironicle.  In  time  he  forsook  that  pursuit 
for  the  law.  He  has  done  something  in  poli- 
tics, having  been  chairman  of  the  Solano  count}' 
Republican  central  committee  several  terms, 
and  at  present  he  is  one  of  the  local  leaders 
of  his  party. 

While  practicing  law.  Mr.  Harrier  was 
elected    superintendent    of    schools    of   Vallejo 


twice,  and  was  a  very  successful  manager  of 
the  department. 

For  four  years  he  was  assistant  district  at- 
torney of  Solano  county  and  figured  in  many 
important  criminal  trials.  For  ten  years  he 
has  been  city  attorney  of  Vallejo,  from  which 
office  he  retired  in  1900,  owing  to  the  de- 
mands of  his  private  business.  He  is  now  the 
attorney  for  the  largest  corporations  in  the 
city  and  for  the  public  administrator  of  Solano 
county. 

Mr.  Harrier  married  Miss  Jessica  V. 
Penny  of  Ann  Arbor,  Michigan,  a  graduate  of 


the  University  of  Michigan,  and  built  hiin- 
self  a  home  at  Vallejo,  where  he  resides  with 
his  family.  He  is  interested  in  many  outside 
business  propositions  and  has  been  uniformly 
fortunate  in  his  ventures.  The  practical 
knowledge  thus  acquired  has  made  him  a  safe, 
conservative  and  reliable  legal  adviser,  and  has 
built  up  for  mm  one  of  the  largest  law  prac- 
tices in   Solano  county. 

In  i8g6  he  was  admitted  to  practice  before 
the  Supreme  Court  of  the  United  States,  hav- 
ing been  sent  to  Washington  that  year  by  the 
Board  of  Trade  of  the  city  of  Vallejo. 


THOMAS  E.  HAVEN. 

Thos.  E.  Haven,  son  of  James  M.  Haven, 
was  born  at  Downieville,  Cal.,  on  April  i, 
1865.  He  was  educated  at  Williams  College, 
Massachusetts,  and  at  Hastings  College  of 
the  Law.  He  located  at  San  Francisco  in 
June,  1890.  when  he  was  admitted  to  the  bar, 
and  has  since  been  associated  in  the  practice 
with  his  father.  The  firm  has  a  steady  and 
valuable  business,  with  fine  offices  in  the  Clans 
Spreckcls    building. 


E.  S.  HELLER. 


E.  S.  Ileller  was  born  in  San  Francisco. 
January  2.  1865,  and  was  educated  at  the  public 
schools  of  thai   city,  the  State  University,  and 


1032 


History  of  the  Bench  and  Bar  of  California. 


Hastings  College  of  the  Law.  He  was  ad- 
mitted to  the  bar  on  July  i,  1889;  and  has 
since  been  practicing  in  San   Francisco. 


JOHN   H.   HENDERSON. 

John  Hayes  Henderson  was  born  at  Panama 
in  1861.  his  father  being  the  Britsh  consul 
at  that  place.  His  parents  were  Scotch,  and 
his  father,  who  is  still  living,  enjoys  the  dis- 
tinction of  being  the  oldest  British  consul 
alive.  His  period  of  service  covered  nearly 
fiftv  years. 

Mr.  Henderson's  education  was  varied,  he 
having  attended  schools  in  Peru,  England, 
France  and  America.  In  1878  he  passed  the 
entrance  examination  for  Harvard  College, 
with  a  general  average  of  85  per  cent.  He 
did  not,  however,  remain  at  the  university, 
but  left  soon  after  for  England  and  France, 
where  he  studied  French  under  M.  Leport 
(who  was  Victor  Hugo's  most  intimate  friend 
and   suffered   exile   with   him   at   Jersey),   and 


of  California,  at  Berkeley,  and  he  was  grad- 
uated   from   that   institution   in    1890. 

Returning  home  from  the  State  University, 
Mr.  Hewitt  began  the  study  of  law  in  the 
fall  of  1890.  He  was  employed  as  a  clerk, 
while  prosecuting  his  studies,  in  various  offices 
of  his  city.  He  was  admitted  to  the  bar  at 
San  Francisco  in  August,  1893,  and  began  the 
practice  of  his  chosen  profession  at  Los  An- 
geles in  the  fall  of  1894. 

In  1899  Mr.  Hewitt  was  appointed  assistant 
city  attorney  by  City  Attorney  Walter  F. 
Haas,  which  position  he  is  at  present  filling 
under  Mr.  Mathews,  the  present  city  attorney 
of  Los  Angeles. 

WILLIAM  HENDRICKSON.  JR. 

Mr.  Hendrickson  was  born  in  San  Francisco 
November  22,  1863.  His  parents  came  from 
New  Jersey,  his  father  being  a  California 
pioneer.  Mr.  Hendrickson  was  educated  at 
Pennington  Seminary,   New  Jersey,  Dickinson 


classics  under  an  Oxford  tutor.  He  then  en- 
tered the  foreign  ofticc  at  London  as  a  prelim- 
inary to  entering  the  consular  service.  Re- 
turning to  Boston  he  was  appointed  British 
vice-consul  at  that  port,  and  at  the  end  of 
1880  came  to  California.  He  attended  the 
Hastings  College  of  the  Law  at  San  Fran- 
cisco, and  after  reading  in  the  office  of  Jar- 
boe,  Harrison  &  Goodfellow.  was  admitted 
to  practice  in  January,  1885.  Since  then  he 
has  practiced  at  San  Francisco  and  has  been 
engaged  in  some  important  cases,  among  others 
the  estates  of  Thos.  H.  Blythe.  Henry  Mar- 
tin and  Angelina  R.  Scott. 

L.  R.  HEWITT. 

Leslie  R.  Hewitt  was  born  at  Olympia, 
Washington,  September  12.  1867.  In  1876  he 
came  with  his  parents  to  California,  and  set- 
tled at  Los  Angeles.  He  entered  the  public 
schools  of  that  city,  and  remained  until  he 
was  graduated  from  the  High  School  in  1885. 
In  1886  he  became  a  student  at  the  L^niversity 


College,  Penn.sylvania.  and  at  Hastings  Col- 
lege of  the  Law.  In  1892  he  was  elected  to  the 
assembly  as  a  Democrat,  from  the  Forty- 
second  district,  San  Francisco,  and  served  at 
the  session  of  January-March,  1893.  He  has 
been  in  good  and  steady  practice  at  the  bar  of 
his  native  citv  since  1888. 


A.  W.   HILL. 


.Arthur  Wellesley  Hill  is  a  practicing  attor- 
ney at  Eureka,  Humboldt  county.  He  grad- 
uated from  Hastings  College  of  the  Law  in 
1893.  While  a  junior  at  college  he  was  ad- 
mitted to  practice  in  all  the  courts  of  the 
State.  He  passed  the  examination  befor-  the 
Supreme  Court  in  a  manner  highly  creditable 
to  himself  and  his  college.  He  evidently  be- 
lieved that  whatever  is  worth  doing  at  all  is 
worth  doing  well,  and  he  continued  his  legal 
studies  at  the  law  college  of  the  State  Uni- 
versity, until  the  completion  of  his  course, 
when  he  was  awarded  the  degree  of  LL.  B. 
by    the    university. 


History  of  the  Bench  and  Bar  of  California. 


1033 


From  June.  1892,  to  June,  1893,  Mr.  Hill 
was  associated  with  Hon.  A.  P.  Van  Duzer, 
of  San  Francisco.  Since  that  time  he  has 
been  one  of  the  prominent  members  of  the 
Humboldt  county  bar,  and  makes  as  his  spe- 
cialties,   land,   mining   and   corporation    law. 

He  served  with  distinction  as  a  member 
of  the  California  legislature,  during  the  thirty- 
second  session.  His  course  as  a  legislator  was 
fearless  and  honest — so  much  so  that  not  even 
the  partisan  press,  in  its  bitter  attacks  upon 
the  legislature,  could  say  aught  against  his 
character  or  his  conduct. 


Northfield,  Vermont,  and  at  Dartmouth  Col- 
lege, from  which  latter  place  he  was  gradu- 
ated in  1878.  He  studied  law  at  the  office  of 
Hon.  Frank  Flumway,  in  Northfield,  New 
York,  and  at  the  Columbia  Law  School.  He 
opened  a  law  office  in  Tucson,  Arizona,  in 
June,  1881.  In  March,  1882,  he  was  appointed 
United  States  commissioner  for  the  first  judi- 
cial district  of  Arizona,  which  office  he  filled 
for  two  years.  He  ran  for  district  attorney, 
for  Pima  county.  Arizona,  on  the  Republican 
ticket,  and  was  defeated  by  a  few  votes.  In 
March,  1885,  upon  the  petition  of  the  members 
of    the    bar    of    that    county,    Mr.    Gregg   was 


Mr.  Hill  was  born  in  Eureka,  Cal.,  Septem- 
ber 18,  1864.  In  his  political  views  he  is  Re- 
publican, and  is  one  of  the  most  effictive 
campaign  speakers  of  his  county.  He  never 
descends  to  personal  abuse,  preferring  to  deal 
with  principles  and  theories,  which  he  sub- 
jects to  a  rigorous  analysis.  In  his  chosen 
profession  he  has  few  superiors,  and  he  is  a 
forceful,  logical  and  fluent  speaker.  The 
strength  of  his  argument  is  equalled  by  the 
thoroughness  with  which  he  does  his  work, 
both  in  the  office  and  in  the  court  room. 


BEVERLY  L.  HODGHEAD. 

Beverly  L.  Hodghead  has  been  at  the  San 
Francisco  bar  since  1891,  having  been  admitted 
to  practice  in  the  Supreme  Court  on  June  24th 
of  that  year.  He  attended  the  University  of 
California,  and  afterwards  was  graduated  from 
Hastings  College  of  the  Law.  He  was  born 
at  Lexington.  Virginia,  March  21,  1865,  being 
the  youngest  son  of  a  Presbyterian  minister. 
He  was  married  in  1894,  and  resides  in  Berke- 
ley. Since  his  admission  to  practice  he  has 
acquired  a  good  clientage  and  has  been  one 
of  the  most  successful  of  the  younger  attor- 
neys at  the  San  Francisco  bar. 


FREDERICK    W.    GREGG. 

Frederick  W.  Gregg,  of  the  law  firm  of  Otis 
&  Gregg,  is  a  Vermonter  by  birth,  and  was 
educated   at    Norwich    Military   University,   at 


appointed  County  Judge  of  Pima  county,  and 
at  the  expiration  of  his  term,  was  re-elected 
to  the  office,  receiving  a  larger  vote  than  any 
other  candidate  of  his  party  on  the  county 
ticket.  In  the  summer  of  1887  he  removed 
to  San  Bernardino,  Cal.,  and  entered  into 
partnership  with  Hon.  William  A.  Harris, 
.  which  patnership  continued  for  six  years,  and 
until  the  removal  of  Mr.  Harris  to  the  city 
of  Los  Angeles.  In  1896  he  formed  his  pres- 
ent partnership  with  Judge  George  E.  Otis. 
at  the  close  of  the  term  of  office  of  the  latter 
as  Superior  Judge  o<  San  Bernardino  county. 
Mr.  Gregg  has  had,  for  many  years,  a  large 
practice  in  San  Bernardino  county,  and  is 
still  comparatively  a  young  man. 


J.    C.    HIZAR. 

Julier  Clyde  Hizar  was  born  November  5, 
1871,  at  Fort  Ancient,  Warren  County,  Ohio. 
His  father  was  a  merchant,  his  grandfather 
a  Methodist  minister,  and  his  mother  a  di- 
rect descendant  from  Madam  Owens  of  Fort 
Harmar  Block  House  fame,  the  first  white 
woman  inhabitant  of  Ohio.  His  early  life 
was  spent  in  Paris,  111.,  and  in  Marietta  and 
Lebanon,  Ohio.  At  an  early  age  he  acquired 
a  fondness  for  mathematics  and  the  classics, 
graduating  from  the  National  Normal  Uni- 
versity, of  Lebanon,  Ohio,  at  the  age  of 
twenty,  taking  two  degrees,  that  of  B.  S.  and 
A.  B.     Immediately  thereafter  he  was  offered 


1034 


History  of  the  Bench  and  Bar  of  California. 


the  principalship  of  tlic  public  schools  of  Clay 
Center,  Kansas,  but  declined  in  order  to  pur- 
sue the  study  of  law.  He  studied  at  the  Cin- 
cinnati Law  School,  and  was  admitted  to  the 
bar   in   California   in    1894.     Mr.   Hizar   is   the 


ton  was  appointed  deputy  county  recorder. 
In  1893  he  began  the  study  of  law  in  the  office 
of  Charles  W.  Thomas,  and  was  admitted  to 
practice  in  the  Supreme  Court,  in  January, 
1895.     Since  that  time  he  has  been  following 


present  incumlx-t  of  the  office  of  city  attor- 
ney of  Coronado,  where  he  resides,  and  he 
is  the  junior  member  of  the  lawifirm  of  Mills 
and  Hizar,  of  San  Diego.  ■    * 


E.   BURKE  HOLLADAY. 

Edmund  Burke  Holladay,  generally  known 
as  "Burke"  Holladay,  a  prominent  lawyer  of 
San  Francisco,  was  born  in  that  city  on  the 
14th  day  of  February.  1862.  He  is  the  only 
son  of  Samuel  W.  Holladay,  who  lives  among 
the  few  survivors  of  the  bar  of  '49.  He  was 
educated  in  the  public  schools  of  San  Fran- 
cisco, including  the  Boys'  High  School,  and 
was  graduated  from  Hastings  College  of  the 
Law  in  1883.  He  was  admitted  to  practice 
by  the  State  Supreme  Court  in  June  of  that 
year.  He  was  in  partnership  with  his  father 
from  that  time  until  the  end  of  1896,  when  he 
became  associated  in  practice  with  Hon.  Jef- 
ferson Chandler  and  J.  P.  Chandler.  Since 
1898  he  has  been  alone   in  the  practice. 

On  February  25,  1896,  Mr.  Holladay  was 
married,  at  New  York  City,  to  Caroline  D. 
Huntinerton,  a  niece  of  the  railway  magnate, 
Collis  P.  Huntington.  They  have  two  beau- 
tiful children.  Helen,  aged  three,  and  Collis. 
aged   two  years. 


ARTHL'R    C    HUSTON. 

Arthur  C.  Huston  is  the  .son  of  the  late 
W.  S.  Huston,  who  crossed  the  plains  in  1849, 
and  located  in  Yolo  county.  Mr.  Huston  was 
born  at  Knight's  Landing,  California,  and 
received  his  education  in  the  public  schools  and 
in  Hesperian  College  at  Woodland.  After 
leaving  college,  he  filled  the  position  of  city 
editor  on  two  local  papers.     In  1891  Mr.  Hus- 


the  profession  in  Woodland.  He  has  also 
filled  the  office  of  city  attorney.  Mr.  Huston 
is  a  man  of  family,  having  married  Miss 
Elizabeth  Browning,  a  daughter  of  R.  W. 
Browning,  who  is  also  a  pioneer. 


R.  LANDON  HORTON. 

Rufus  Landon  Horton  is  a  Wolverine,  hav- 
ing been  born  at  Niles,  Michigan,  on  the  2nd 
day  of  September,  1861.  His  early  education 
was  received  in  that  haven  of  lucky  statesmen, 
Ohio,  in  the  town  of  Wauseon  where  his  pa- 
rents. Richmond  B.  Horton  and  Anna  M. 
Horton  removed  when  he  was  but  four  years 
old.  Mr.  Horton  comes  of  English  stock 
and  can  trace  his  family  history  back  many 
generations.  His  earl\'  ancestors  came  to 
America  before  the  revolution  and  located  on 
Long  Island,  afterward  a  branch  of  the  family 
moved  to  the  south  and  another  remained  in 
the  north,  some  locating  in  Ohio  and  Michi- 
gan. On  his  mother's  side  there  is  a  slight 
mixture  of  German  blood  and  on  his  fatlier's 
some  of  Scotch. 

In  1875  he  removed  with  his  parents  to 
Dallas.  Texas,  where  he  continued  his  educa- 
tion, and  was  graduated  in  1880.  He  then 
taught  school  and  read  law  during  vacation. 
On  the  1st  day  of  May,  1887.  he  became  a  resi- 
dent of  Los  nngeles  and  finished  his  legal 
studies  with  Judge  Lucien  Shaw.  He  was  ad- 
mitted to  the  bar  by  the  Supreme  Court  on 
the  2nd  day  of  Anril,  1887.  Mr.  Horton  was 
not  slow  in  acquiring  business  as  before  his 
admission  to  the  Supreme  Court  he  had  been 
admitted  to  the  Superior  Court  of  Los  An- 
geles county,  and  had  tried  several  cases,  one 
at  least,  of  considerable  importance,  that  of 
Bird  et  al.  vs.  Widney  et  al..  a  mechanics' 
lien   suit,  in   which  case  Mr.  Horton  was  sue- 


History  of  tJie  Bench  and  Bar  of  California. 


1035 


cessfiil  for  his  clients,  altliough  a  stubborn 
technical  fight  was  made  by  the  defendant's 
attorneys.  In  the  same  year  that  he  was 
admitted  to  the  bar  of  the  Supreme  Court 
he  argued  a  case  of  exceptional  importance 
before  that  tribunal  and  was  complimented 
upon  his  argument  by  Justice  Paterson,  one 
of  the  Justices   of  that   bench. 

He  has  been  counsel  in  a  number  of  im- 
portant cases,  not  only  in  this  State,  but  in 
Arizona  and  Texas  as  well.  Some  of  the 
leading  cases  in  which  Mr.  Horton  has  been 
attorney  might  be  mentioned  as  follows  : 

Lauterbach  vs.  Voss  was  a  case  to  deter- 
mine heirship  and  was  brought  by  a  reputed 
daughter  to  recover  an  estate  from  the  de- 
fendant, widow  of  Frederick  Voss,  deceased. 
Mr.  Voss  had  taken  the  plaintiff  when  a  baby, 
in  Nevada,  to  raise  as  his  own  child ;  and 
afterward  he  married  the  defendant  in  Los 
Angeles,  and  died  leaving  the  widow  in  ig- 
norance of  the  proof  of  the  paternity  of  the 
girl   he   raised. 


The  case  took  over  a '  week  in  the  trial. 
Over  sixty  witnesses  were  examined,  and  al- 
though it  was  as  hard  fought  a  contest  as  any 
ever  tried  in  the  county,  Mr.  Horton,  who  was 
alone  for  the  defense  as  against  an  array  of 
four  lawyers  for  the  plaintiff,  was  successful 
and  tlie  widow  enjoys  the  estate  that  was 
justly   hers. 

The  case  of  Crescent  Coal  Company  as  as- 
signor of  the  Black  Diamond  Coal  Company 
vs.  the  Diamond  Coal  Company,  was  a  suit  to 
enjf)in  the  defendant  from  the  use  of  its  name 
and  for  $20,000  damages,  for  infringing  the 
plaintiff's  right  to  that  name  in  its  business. 
The  cause  was  on  trial  three  days,  when  the 
plaintiff  rested.  Mr.  Horton,  representing  the 
defendant,  moved  the  court  for  a  non-suit 
against  the  plaintiff,  and  after  argument  the 
court  granted   the  motion. 

The  case  of  the  estate  of  Conception  W- 
andiz,  deceased,  was  a  contest  of  a  will.  Mr. 
Horton  represented  two  of  the  heirs,  as  con- 
testants. The  case  was  tried  before  a  jury 
and  consimied  two  weeks  in  the  trial.  Fully 
one    lunidred    witnesses    were    examined.      Mr. 


Horton  made  an  able  argument  before  the 
jury  upon  which  he  was  highly  complimented 
l)y  those  present.  The  jury  retired  and  both 
sides  were  much  in  doubt  as  to  the  outcome, 
but  after  several  hours  of  deliberation  the 
jury  returned  a  verdict  in  favor  of  the  con- 
testants, breaking  the  will.  Property  worth 
about  $50,000  was  involved.  The  suit  of 
Methvin  vs.  the  F.  M.  Ins.  Co.,  was  a  suit  on 
a  policy  of  insurance.  Mr.  Horton  repre- 
sented the  defendant  company.  The  case  was 
decided  against  his  client  in  the  Superior 
Court,  but  he  advised  an  appeal  to  the  Su- 
preme Court. 

In  that  court  the  cause  was  at  first  decided 
against  the  defendant  company,  by  a  decision 
in  department.  At  this  stage  a  lawyer  repre- 
senting the  plaintiff,  sought  to  compromise  the 
case  with  Mr.  Horton  for  his  client.  The  an- 
swer was  that  the  defendant,  feeling  its  posi- 
tion was  right,  would  not  pay  one  dollar  in 
the  way  of  compromise ;  it  would  lose  all  or 
nothing. 

Mr.  Horton  petitioned  the  Supreme  Court 
for  a  rehearing  in  bank,  which  was  granted, 
and  in  his  argument  before  the  court  in  bank 
reviewed  the  entire  case,  the  facts  and  law 
applicable  thereto.  The  cause  was  again  sub- 
mitted and  after  a  period  of  several  months 
the  Sunreme  Court  reversed  its  department 
decision,  and  the  decision  of  the  court  below 
and  decided  the  case  in  favor  of  the  defend- 
ant. Many  other  cases  might  be  mentioned 
btit  this  list  is  sufficient  to  show  the  success 
Mr.   Horton  has  met   in   his  profession. 

In  politics  he  is  a  Republican,  and  is  prom- 
inent in  his  oartv.  He  served  two  years  on 
the  city  board  of  education.  In  i8g6  Mr.  Hor- 
ton was  married  to  Miss  Millie  Kurtz,  daugh- 
ter of  Dr.  Joseph  Kurtz,  a  prominent  phyiscian 
and  one  of  the  pioneers  of  Los  Angeles. 

Mr.  and  Mrs.  Horton  reside  at  351  South 
Alvarado  street,  in  one  of  the  most  beautiful 
sections  of  elegant  homes  in  the  city  of  Los 
Angeles,  overlooking  West   Lake   Parl-c. 


FDWARD  L.  HUTCHISON. 

Mr.  Hutchison  was  born  in  Virginia.  His 
family  furnished  one  governor,  one  federal 
judge,  and  one  lieutenant  for  Stonewall  Jack- 
son. 

Mr.  Ilnlcliisdii  s])cnl  se\Tral  years  as  a  boy 
on  a  farm,  and  as  clerk  in  a  village  store  in 
Ohio.  When  he  was  twenty-one,  in  1885,  he 
came  to  C.'ilifornia,  and  located  at  Los  An- 
geles, lie  wi irked  there  for  three  years  as  a 
car])enter.  and  attended  night  school,  and  then 
for  seven  years  he  was  principal  of  various 
large  schools  in  that  city.  He  served  in  the 
city  cnnncil   fni-  two  years. 

Mr.  11  nlclii^i in''^  \vor]<  in  the  conncil  in  re- 
gard t(i  liu'  water  i|neslinn,  in  favor  of  James 
C.  Kays  ,1^  .nbit  r.itor.  in  favor  of  taking  the 
city  census,  wliicli  resulted  in  a  cotmt  of  103.- 
coo,  and  which  gave  the  city  many  additional 
postal  employes,  with  an  addition  to  their  sal- 
ary as  well,  his  stand  in  favor  of  the  shorten- 
in":  of  the  liours  of  work  of  jiolicemen  from 
len   and  .1   li.ilf  Imurs  to  eight  hoiu^s.   in   favor 


1036 


History  of  the  Bench  a)id  Bar  of  California. 


of  the  rights  of  the  hackmen  and  the  express- 
men, in  favor  of  the  use  of  the  Union  label 
upon  city  printing,  and  upon  all  questions  of 
interest  or  importance,  are  recorded  and  re- 
membered. 

Mr.  Hutchison  has  been  a  well  known  con- 
tributor to  the  columns  of  the  papers  for  the 
last  ten  years.  He  is  an  ardent  lover  of  books, 
and  has  read  nearly  everything  in  standard 
literature.  He  also  counts  four  modern  lan- 
guages  among   his   scholastic   attainments. 

He  spent  his  odd  time  during  nearly  ten 
years  in  studying  law,  and  has  practiced  that 
profession  since  he  made  the  race  for  lieuten- 
ant governor  on  the  Democratic  ticket  in  1898. 
He  was  the  Democratic  candidate  for  city  at- 
torney of  Los  Angeles  in  1900. 


Mr.  Hutchison  has  had  exceptional  success 
in  private  practice.  His  list  of  acquaintances 
is  very  large,  and  includes  the  greater  part  of 
the  population  of  the  city  in  all  walks  of  life. 

He  is  a  Past  Grand  of  the  Odd  Fellows,  a 
Past  Commander  of  the  Maccabees,  a  member 
of  I.  O.  O.  F.  Encampment,  the  Rebekahs,  the 
Knights  of  Pythias,  the  Knights  of  Labor,  and 
the  Fraternal  Brotherhood.  The  Los  Angeles 
Herald,  in  writing  of  him  in  igoo  said: 

"His  life  of  thirty-six  years  has  been  a  busy 
one,  and  he  may  be  called  aggressive  in  every 
way.  His  public  career  is  well  known,  and 
his  private  life  above  reproach,  unless  it  be  a 
reproach  that  he  remains  a  bachelor ;  but  his 
statement  that  he  is  'too  busy  to  marry'  must 
be  accepted  as  a  valid  excuse." 


WILLIAM  P.  JAMES. 

Judge  James  was  born  near  the  city  of  Buf- 
falo, New  York,  January  10.  1870.  When  he 
was  three  years  old  he  removed  with  his  par- 
ents to  California,  and  has  resided  in  the 
county  of  Los  Angeles  ever  since.  He  was 
graduated  from  the  Los  Angeles  High  School, 
and  received  admission  papers  to  the  State 
University,  but  took  up  the  study  of  law.  at 
the  same  time  engaging  in  newspaper  work  in 


Los  Angeles.  He  was  admitted  to  the  bar  in 
1894,  and  in  January,  1895,  was  appointed  dep- 
uty district  attorney  under  Major  J.  A.  Don- 
nell,  remaining  in  the  district  attorney's  office 
for  four  years.  In  the  fall  of  1898,  he  re- 
ceived the  Republican  nomination  for  Justice 
of  the  Peace  of  Los  Angeles  township,  to 
which  position  he  was  elected  in  the  follow- 
ing November,  for  a  four  years'  term,  which 
will  expire  in  January,  1903. 


GEORGE  L.  JONES. 


Mr.  Jones  is  the  son  of  W.  C.  Jones,  a  phy- 
sician and  surgeon,  well  known  throughout 
Northern  California.  He  was  born  at  Truckee, 
Nevada  county,  California,  May  11,  1873.  He 
located  at  Grass  Valley  with  his  parents  in 
1875,  and  that  has  been  his  home  ever  since, 
with  the  exception  of  the  period  spent  at  col- 
lege. 

He  attended  the  University  of  California  at 
Berkeley,  and  graduated  therefrom  in  1895,  re- 
ceiving the  degree  of  Ph.  B.  In  1897  he  was 
graduated  from  the  Hastings  College  of  the 
Law.  While  attending  that  law  college  he  was 
also  in  the  offices  of  Delmas  &  Short  ridge,  in 
San  Francisco.  In  August,  1897,  Mr.  Jones 
commenced  the  practice  of  law  in  Grass  Val- 
ley. He  is  the  attorney  for  the  city  of  Grass 
Valley,  and  also  attorney  for  the  public  admin- 
istrator of  Nevada  county. 

He  is  considered  a  young  man  of  good  at- 
tainments in  his  chosen  profession. 


JOHN  G.  JURY. 


John  G.  Jury,  one  of  the  most  successful 
members  of  the  bar  at  San  Jose,  California, 
was  born  in  the  town  of  Houghton,  state  of 
Michigan,  on  August  23,  1866.  On  both  the 
paternal  and  maternal  sides  he  is  descended 
from  the  sturdy  ancient  Britons,  and  the  rec- 
ords and  traditions  of  his  family  disclose  many 
names  among  his  ancestors  who  took  active 
and  prominent  part  in  the  struggles  and  victo- 
ries of  England,  both  on  sea  and  on  land.  Mr. 
Jury's  early  boyhood  was  spent  in  the  eastern 
states.  In  1875  his  parents  moved  to  the  state 
of  Nevada,  where  he  lived  till  1884,  in  which 
year  his  residence  was  taken  up  in  San  Jose. 
California. 

Like  many  other  western  lawyers,  prior  to 
his  admission  to  the  bar,  he  followed  for  a  few 
years,  first  the  vocation  of  a  school  teacher, 
and  later  that  of  an  editor.  Mr.  Jury's  edu- 
cation is  thorough  and  varied,  having  been  ac- 
quired in  the  public  schools  and  the  San  Jose 
State  Normal,  and  under  the  tutelage  of  pri- 
vate  instructors. 

On  May  2,  180?,  Mr.  Jury  was  admitted  to 
the  bar  of  the  Supreme  Court  of  the  State. 
Within  a  brief  time  after  his  admission  he  be- 
gan practice  in  San  Jose,  and  has  since  met 
with  more  than  usual  success.  He  is  es- 
teemed by  his  clients  and  by  members  of  the 
profession  both  in  San  Jose  and  wherever  else 
he   is  known,  as  an   able  and   skillful   lawyer. 


History  of  tJie  Bench  and  Bar  of  Califorjiia. 


1037 


Besides  representing  very  important  interests 
and  many  influential  clients  in  San  Jose,  he 
numbers  among  his  non-resident  clients  such 
well-known  persons  as  Hon.  James  D.  Phe- 
lan  of  San  Francisco,  whose  interests  in  Santa 
Clara  county  are  second  only  in  importance  to 
his  interests  in  San  Francisco ;  Mrs.  M.  E 
Mills,  of  San  Mateo  county,  administratrix  of 
the  estate  of  Robert  Mills,  deceased,  and  others 
in  various  parts  of  the  State.  In  addition  to 
the  customary  labors  of  an  attorney  and  coun- 
selor, Mr.  Jury  devotes  considerable  time  to 
patent  law,  he  being  a  registered  solicitor  of 
patents  in  the  Patent  Office  at  Washington. 


JULIUS  KAHN. 


Hon.  Julius  Kahn,  present  member  of  the 
national  house  of  representatives  for  a  portion 
of  San  Francisco,  twice  elected  thus  far,  as  a 
Republican,  from  a  Democratic  district,  was 
born  at  Kuppenheim,  in  the  Grand  Duchy  of 
Baden,  on  the  28th  day  of  February,  1861.  Our 
own  fair  land,  where  he  was  destined  to  attain 
to  high  public  station,  was  at  that  time  just 
passing  into  the  shadow  of  a  four  years'  war. 
Coming  with  his  parents  to  California  in 
1866,  he  was  educated  in  the  public  schools 
of  San  Francisco,  and  was  graduated  from  the 
Boys'  High  School  in  the  class  of  1878.  After 
leaving  school,  Mr.  Kahn,  before  attaining  his 
majority,  entered  the  theatrical  profession, 
which  he  followed  for  ten  years,  playing  with 
Edwin  Booth,  Joseph  Jefferson,  Tomassa  Sal- 
vini,  Mr.  and  Mrs.  W.  J.  Florence,  Clara 
Morris,  and  other  well-known  "stars."  He 
began  the  study  of  law  at  San  Francisco  in 
1890,  in  the  office  of  T.  C.  Coogan.  In  1892 
he  was  elected  to  the  assembly,  and  served  in 
the  thirtieth  session  of  the  legislature — Jan- 
uary-March, 1893.  The  assembly  was  Demo- 
cratic and  the  senate  Republican  at  that  ses- 
sion. In  July,  1893,  he  was  chosen  secretary 
of  the  finance  committee  of  the  California 
Mid-winter  International  Exhibition  of  the 
succeeding  winter. 

In  January,  1894,  Mr.  Kahn  was  admitted  to 
the  bar  by  the  State  Supreme  Court.  He  be- 
gan the  practice  of  law  at  once,  keeping  his  of- 
fice with  Mr.  Coogan.  The  two  gentlemen  have 
ever  since  continued  their  office  association, 
without  being  in  business  partnership.  Mr. 
Kahn  is  a  man  of  heavy  build  physically,  of 
strong  personality,  with  a  genial  countenance 
and  agreeable  manners.  He  is  generally  es- 
teemed. His  methods  are  deliberate.  He  had 
attained  fair  succcess  at  the  bar,  and  his  name 
was  connected  with  some  important  test  cases 
of  public  interest,  when,  in  the  fall  of  1898, 
he  was  elected  to  the  lower  house  of  congress, 
as  a  Republican  (from  Judge  Maguire's  old 
Democratic  district,  San  Francisco),  defeat- 
ing James  H.  Barry,  Democrat,  and  editor  of 
the  Weekly  Star;  W.  J.  Martin,  Socialist- 
Labor,  and  Joseph  P.  Kelly,  Independent  Dem- 
ocrat, iriis  nlurality  was  1600.  On  November 
6.  1900,  Mr.  Kahn  was  re-elected  to  congress, 
defeating  Hon.  R.  Porter  Ashe,  Democrat,  by 
a   large   majority. 


JOHN    W.   KEMP. 

Mr.  Kemp  was  born  in  the  state  of  Wis- 
consin, June  2,  1863.  His  father  was  born  in 
the  highlands  of  Scotland;  his  father,  in  Can- 
ada, of  English  parents.  He  came  with  his 
parents  to  California  in  1868,  and  grew  up 
in  the  northern  part  of  the  State.  His  educa- 
tion was  received  in  the  common  schools,  and 
at  the  Stockton  Business  College  and  Normal 
School,  from  which  latter  institution  he  was 
graduated  in  1884.  From  1886  to  1889,  in- 
clusive, he  was  engaged  in  teaching  school. 
He  read  law  in  the  office  of  D.  W.  Jenks,  Esq., 
one  of  the  leading  attorneys  of  the  northern 
counties,  and,  upon  being  admitted  to  the  bar 
of  the  Supreme  Court,  began  practice  in  Modoc 
county,  in  1889.  In  1891  he  went  to  the 
southern  part  of  the  State,  locating  in  San 
Diego.  There  he  continued  his  legal  studies  in 
the  office  of  Hon.  John  D.  Works,  until  1892. 
In  that  year  he  was  admitted  to  practice  by 
the  Supreme  Court  and  the  United  States 
courts,  at  Los  Angeles.  Throughout  the  same 
year  he  was  in  the  office  of  Hon.  Olin  Well- 
born at  San  Diego. 

•  Mr.  Kemp  removed  to  Los  Angeles  on  Jan- 
uary I,  1893,  and  has  ever  since  been  engaged 
in  active  practice  there.  For  some  years  he  has 
had  a  large  business,  of  varied  character,  and 
is  generally  recognized  as  a  careful  and  ac- 
complished practitioner.  His  success  is  the  re- 
sult of  hard  work  and  unflagging  watchful- 
ness over  interests  of  his  clients.  He  is  a  self- 
made  man.  He  has  never  aspired  to  public 
office,  and  is  happiest  when  occupied  with  pro- 
fessional business. 


ELIZABETH  L.  KENNEY. 

Miss  Elizabeth  L.  Kenney  was  born  in  Mat- 
toon,  Illinois.  July  4,  1869.  Her  father  was  a 
merchant.  Her  mother  is  a  proininent  worker 
in  the  cause  of  temperance,  and  has  been  presi- 
dent of  the  W.  C.  T.  U.  of  Southern  Califor- 
nia. Miss  Kenney  studied  at  Stanford  Uni- 
versity. She  was  graduated  from  the  North- 
western University  at  Chicago  in  1897,  with  the 
degree  of  LL.  B.  Since  that  time  she  has 
practiced  law  at  Los  Angeles,  California.  Her 
specialties  are  wills  and  probate,  and  the  prop- 
erly rights  of  women  and  children. 


C.    N.   KIRKBRIDE. 


Charles  N.  Kirkbride  was  born  in  Pueblo, 
Colorado,  November  15,  i8b8.  He  received  his 
primary  education  in  the  public  schools  of 
Soutiiern  Illinois,  Nevada,  and  California.  He 
entered  the  University  of  the  Pacific  at  San 
Jose,  Cal.,  in  1884,  and  was  graduated  in  1887, 
with  the  degree  of  Ph.  B.  He  then  became 
a  re])orter  on  the  San  Jose  Mercury,  and  so 
continued  for  two  years.  Subsequently  he  was 
associated  with  others  in  the  publication  of  the 
Leader,  a  newspaper  at  San  Mateo,  and  after- 
wards becoming  editor  of  the  Times  Gazette 
at  Redwood  City.  In  1891  we  went  to  Chicago 
and  entered  the  Northwestern  University  Law 
School,   graduating   in    1893,    with    the   degree 


1038 


History  of  the  Bench  and  Bar  of  California. 


of  LL  B  Ho  was  admittc-d  in  the  bar  in 
Illinois,  but  did  not  practice  in  that  State. 
Rctnrnnig  to  California,  he  received  l^'^  ''^'^n^f 
on  October  3.  1^93,  and  in  December  1894, 
returned  to  his  former  residence,  ban  Malco, 
and   onened   an   ofifice. 

Earlv  in  1895.  Mr.  Kirkbnde  became  the 
citv  attorney  of  San  Mateo,  a  position  which 
he' still  holds.  He  was  among  those  mstru- 
mental  in  organizing  the  League  of  Calitornia 
Municipalities,  and  is  now  chairman  of  the 
judiciary  committee  of  that  body. 


I 


FRANKLIN   K.  LANE. 

The  popular  and  efficient  city  and  county 
attorney  of  San  Francisco,  who  has  been  twice 
elected  to  that  office  by  unexampled  majorities, 
was  born  in  the  year  1864.  His  boyhood  was 
spent  in  Napa  and  Oakland,  where  he  at- 
tended the  public  schools,  graduating  from 
the  High  School  in  Oakland  at  sixteen  years 
of  age.  Afterwards  he  took  a  special  course 
of  study  at  the  University  of  California,  and 
later  spent  two  years  at  the  Hastings  College 
of  the  Law,  at  the  end  of  which  time  he  was 
-examined  by  the  Supreme  Court  and  admitted 
to  the  bar. 

Like  many  other  men  who  have  later  dis- 
tinguished themselves  in  the  law,  Mr.  Lane 
spent  several  years  in  journalistic  work,  for 
a  time  in  New  York  City,  as  a  correspondent 


for  Western  papers,  and  in  editorial  work,  and 
again  as  the  proprietor  and  editor  of  a  daily 
paper  in  the  city  of  Tacoma,  Washington. 

Mr.  Lane  has  never  offered  himself  as  a 
candidate  for  any  other  office  than  that  which 
he  now  occupies,  but  he  has  for  many  years 
taken  a  very  keen  interest  in  political  af- 
fairs. At  various  times  he  has  spoken  in  ad- 
vocacy of  Democratic  candidates  and  princi- 
ples not  alone  in  California,  but  in  Massa- 
chusetts, New  York,  Pennsylvania,  Washing- 
ton and  other  states. 

In  November.  1898.  Mr.  Lane  was  elected 
citv  and  countv  attorney  of  San  Francisco 
defeating  ex- Justice  of  the  Supreme  Court  W. 


F.  Fitzgerald  by  a  majority  that  caused  general 
surprise. 

One  year  later  Mr.  Lane  was  re-elected,  by 
a  majority  of  12,412,  the  largest  majority  ever 
given  to  a  candidate  for  that  office.  In  1899 
the  grand  jury  reported  that  not  one  dollar  in 
judgments  had  been  recovered  against  the  city 
during  Mr.  Lane's  incumbency  as  city  attorney, 
and  in  1900  the  grand  jury  said:  "We  found 
the  office  of  the  city  and  count}-  attorney  to  be 
conducted  in  the  best  possible  manner." 

Mr.  Lane  was  leading  counsel  for  the  city 
in  the  case  of  Fragley  vs.  Phelan,  in  which 
the  validity  of  the  new  charter  of  San  Fran- 
cisco was  established.  Since  the  coming  into 
operation  of  this  new  organic  law,  the  labors 
of  the  city  attorney  have  been  of  a  very 
high  order,  it  has  devolved  upon  him  to  inter- 
pret and  construe  the  charter  for  all  the  de- 
partments of  the  municipality.  Upon  attempt 
being  made  to  operate  thereunder,  the  charter 
was  found  to  be  full  of  ambiguities  and  incon- 
sistencies, which  it  has  been  the  difficult  duty 
of  the  city  attorney  to  make  clear  and  straight. 
The  work  done  by  Mr.  Lane  under  the  charter 
evidences  a  constructive  type  of  mind,  and  has 
greatly  added  to  his  professional  reputation. 
His  opinions  have  been  clear,  simple  and  direct 
in  style,  apppealing  to  the  layman  as  to  the 
lawyer  by  their  absence  of  all  trace  of  pedan- 
try. " 

CLARENCE    F.    LEA. 

Clarence  F.  Lea  is  a  native  son.  having  been 
born  at  Highland  Springs.  Lake  county.  Cali- 
fornia,  July    II,    1874.      His   great-grandfather 
bore  American  arms  in  the  Revolutionary  War. 
Mr.  Lea  was  born  on  the  farm,  paid  his  own 
way  through   college,  attended   Stanford  Uni- 
versity   two    years,    and    graduated    from    the 
University  of  Denver  in  1898.     He  was  editor 
of  the   University  Annual   for  his  department 
of  the  university  during  his  last  year  of  attend- 
ance there.     At  the  preparatory  school  and  at 
college,    young    Lea    took    an    active    part    in 
debating  societies.     At  the  age  of  twenty-two 
he  took   the  platform   for  his  party,   and   was 
considered   a   successful   campaigner.      In   1897 
he  passed  the  bar  examinations  for  admission 
to    the    Supreme    Court    of    Colorado,    with    a 
standing  next  to  the  highest  in  his  class.    After 
having  been  admitted  to  the  bar.  he  was  paid 
the  unusual   compliment  of  being  retained  by 
his    first    client,    to    argUe    a    case    before    the 
Supreme    Court.      A    few    months    after    his 
graduation    Mr.    Lea    returned    to    California 
and  settled  at  Santa  Rosa,  where  he  is  engaged 
in  the  practice  of  his  chosen  profession.     He  is 
of    the   firm    of    Schlotterback   i*^    Lea,    and    is 
one  of  the  youngest  members  of  the  Sonoma 
county    bar. 


F.  A.  LEONARD. 

F.  A.  Leonard  was  born  at  Watertown,  Wis- 
consin, in  December,  1864.  His  father  was  a 
sufferer  from  asthma,  which  cau.sed  his  re- 
moval from  St.  Louis  to  Colorado,  in  1872; 
later  to  New  Mexico,  and  then  to  San  Ber- 
nardino,  California. 


Walkr  H.  Linforth 


History  of  the  Bench  and  Bar  of  California. 


1041 


Mr.  Leonard's  father  was  an  attorney  of 
considerable  reputation  and  ability,  having 
been  for  some  years  prior  to  his  removal  to 
Colorado,  Circuit  Judge  in  the  state  of  Mis- 
souri, and  in  1870  was  the  Republican  nominee 
for  a  positon  on  the  Supreme  bench  of  that 
state  ;  and  in  1889  he  was  notified  by  General 
Lew  Wallace,  of  President  Harrison's  intention 
to  appoint  him  on  the  Supreme  bench  in  New 
Mexico,  but  at  the  time  he  was  suffering  from 
an  illness  which  soon  thereafter  resulted  in 
his  death. 

F.  A.  Leonard  passed  his  school  days  in 
Boulder,  Colorado,  and  attended  the  State  Uni- 
versity located  at  that  place.  He  entered  the 
St.  Louis  Law  School  in  1885,  and  after  com- 
pleting the  course,  was  admitted  to  practice  in 
New  Me.xico,  in  1887.  Removing  to  California 
in  1888,  he  located  at  San  Bernardino,  and 
formed  a  partnership  with  Henry  Goodcell, 
which  continued  for  eight  years.  He  is  now- 
practicing  by  himself;  and  possesses  a  good 
business. 

Mr.  Leonard  was  married  to  Fannie  E.  Saw- 
yer, at  Boulder,  Colorado,  in  1891.  He  has  a 
boy  of  six  and  a  girl  of  two  years. 


WALTER  H.  LINFORTH. 

Walter  Herbert  Linforth  was  born  in  San 
Francisco,  November  10,  1869.  His  father,  Ed- 
ward H.  Linforth,  and  his  mother,  Ellen  Lin- 
forth, were  both  born  in  Birmingham,  Eng- 
land. They  came  from  there  to  California  in 
1868,  and  located  in  San  Francisco.  Walter 
H.  Linforth  was  educated  in  tne  public  schools 
of  San  Francisco.  At  an  early  age  he  en- 
tered the  law  office  of  Henry  E.  Highton,  and 
remained  there  about  eight  years,  studying  law 
and  part  of  the  time  acting  as  managing  clerk. 
He  was  admitted  to  practice  by  the  Supreme 
Court  at  Sacramento  on  his  twenty-first  birth- 
day, November   10,   1890. 

Mr.  Linforth  remained  in  the  office  of  Mr. 
Highton  until  the  latter  part  of  1892,  when  he 
commenced  the  practice  of  the  law  on  his  own 
account.  Since  the  completion  of  the  Claus 
Sprcckels  buildmg,  his  office  has  been  therein. 
He  has  a  general  practice  of  great  value. 

Mr.  Linforth  took  an  active  part,  with  H.  E. 
Highton  and  Judge  E.  D.  Wheeler,  in  presen- 
tation of  the  claims  of  Alice  Edith  Blythe  to 
the  great  Blythe  estate.  He  was  one  of  the 
leading  counsel  for  the  wife  in  the  White  di- 
vorce case,  in  which  the  defendant  was  the 
"Mendocino  Cattle  King" — so  called.  Mr. 
Linforth,  with  Grove  L.  Johnson,  tried  the 
Henry  Martin  will  contest,  representing 
"Baby  John."  He  successfully  maintained  the 
right  of  Mrs.  Myra  E.  Wright  to  recover  from 
the  defunct  Union  SJivings  Bank  of  San  Jose, 
after  its  insolvency,  sixty  thousand  dollars, 
loaned  by  her  to  the  bank  before  its  failure — 
instead  of  her  being  compelled  to  pro  rate  with 
the  general  creditors.  He  has  tried  numerous 
railroad  cases,  getting  heavy  verdicts.  He  also 
tried  the  libel  case  of  George  D.  Graybill 
against  the  Chronicle,  recovering  a  verdict  for 
$1000. 

The    case    that    probably    afforded    Mr.    Lin- 


forth the  most  pleasure  to  try  was  that  of  Al- 
bert Roche  against  E.  J.  ("Lucky")  Baldwin. 
Roche  was  the  assignee  of  Mr.  Highton,  and 
the  action  was  to  recover  $10,000,  the  amount 
claimed  by  Mr.  Highton  as  his  fee  for  trying 
for  Baldwin  the  Ashley-Baldwin  seduction 
case.  The  action  to  recover  Mr.  Highton's  fee 
was  tried  before  Judge  Hunt  and  a  jury,  and 
a  verdict  was  rendered  in  plaintiff's  favor 
for  $8700. 

Mr.  Linforth  now  represents  a  number  of 
leading  firms  and  corporations,  including  W. 
W.  Montague  &  Co.,  the  San  Jose  Fruit  Pack- 
ing Company,  the  Jersey  Island  Dredging^ 
Company,  the  Sheba  Gold  Mining  Company, 
and  the  Jacalitas  Petroleum  Company. 

Mr.  Linforth  is  a  bachelor.  At  the  age  of 
thirty-one  he  is  one  of  the  best-known  lawyer* 
in  the  State.  His  activity  is  extraordinary.  He 
tries  a  great  many  cases  for  other  leading  law 
firms,  being  generally  accounted  a  most  tal- 
ented trial  lawyer.  Personally,  he  is  of  very 
agreeable  manners,  and  is  held  in  universal 
regard.  ^ ,    -, 

CARL  E.  LINDSAY.. 

Mr.  Lindsay  was  born  at  Bucyrus,  Ohio.  De- 
cember 6,  i86r.  He  removed  to  Salem,  Ore- 
gon, in  1871,  and  to  California  in  1876.  He 
was  educated  in  the  academic  department  of 
Willamette  University,  and  at  the  State  Nor- 
mal School  at  San  Jose,  California.  He  re- 
ceived a  first-grade  teacher's  certificate  when 
eighteen  years  of  age.  He  taught  one  year  at 
Darwin,  Inyo  county,  California,  and  subse- 
quently in  Santa  Cruz  county,  and  for  seven 
years  was  principal  of  the  Branciforte  Gram- 
mar School,  Santa  Cruz.  He  was  admitted  to 
the  bar  in  1890,  while  still  teaching,  and.  in 
the  same  year,  was  elected  district  attorney  of 
Santa  Cruz  county,  shortly  after  being  ad- 
mitted to  practice,  and  before  leaving  the 
school  room.  He  was  re-elected  to  the  office 
of  district  attorney  twice,  serving  eight  years 
in  all.  He  was  admitted  to  practice  before 
the  United  States  Supreme  Court  in  1897. 


LOUTS  LUCKEL. 

Louis  Luckcl,  of  tiie  L(xs  Angeles  bar,  is  a 
native  of  Kentucky,  was  born  August  15,  1861, 
and  has  since  1887  made  California  his  home. 
He  enjoys  a  wide  acquaintance  throughout 
the  State.  A  careful  student  of  the  law.  Mr. 
Luckel  has  also  devoted  much  of  his  time  to 
the  acquisition  of  foreign  languages,  and  en- 
joys the  distinction  of  being  nrobably  the  only 
lawyer  in  this  country  who  speaks  Chinese.  .\\ 
the  bar  his  successes  include,  among  olliers. 
the  case  of  the  Palmdalc  Irrigation  District,  in 
whicii  the  entire  issue  of  bonds,  amoiuuing  to 
$175,000.  as  also  the  existence  of  the  district, 
as  a  legal  organization,  were  decreed  null  and 
void. 

Mr.  Luckel  was  the  nominee  of  the  Peo- 
ple's party  in  1894  for  attorney-general  of  Cali- 
fornia, and  polled  upwards  of  68,000  votes, 
leading  all  liut  one  of  tlie  nominees  of  his 
party. 


1042 


History  of  the  Bench  and  Bar  of  California. 


DA\'1I)  LEISHMAN. 

David  Leishman  was  born  on  May  4th,  1867, 
at  Livinsfston,  county  of  Linlithgow,  Scot- 
land. His  father  was  one  of  the  parochial 
teachers    of    Scotland,    and    shortly    after    the 


Mr.  Leppo  was  born  in  Iowa,  November  S, 
1866,  but  came  with  his  parents  to  California 
in  1882,  where  he  has  since  resided,  the 
greater  portion  of  which  time  at  Santa  Rosa. 
He   is   an   enthusiast   in   shooting,   fishing   and 


birth   of  the   son   removed   to   Currie   School, 
within    six   miles   of   Edinburgh,    Scotland. 

David  Leishman  was  educated  first  at  Cur- 
rie Parish  School  and  afterwards  in  the  Edin- 
burgh Collegiate  Institution  in  Edinburgh. 
After  leaving  the  latter  he  received  private 
tuition  in  the  classics  in  Edinburgh  with  the 
intention  of  taking  up  the  study  of  medicine. 
This  he  abandoned  later  and  came  to  Cali- 
fornia, and  finally  entered  the  profession  of 
teaching.  He  was  elected  county  superin- 
tendent of  schools  of  Del  Norte  county, 
and  served  four  vears,  and  during  that 
period  devoted  his  spare  time  to  the  study  of 
the  law  until  he  was  finally  admitted  to  the 
Supreme  Court  of  California.  He  then  lo- 
cated at  Ukiah,  Mendocino  county,  and  en- 
gaged in  a  busy  practice  for  some  years.  In 
the  summer  of  1900  Mr.  Leishman  removed  to 
San  Francisco,  where  he  is  now  actively  fol- 
lowing his  profession. 


J.  R.  LEPPO. 


J.  R..  Leppo  was  admitted  before  the  Su- 
preme Court  of  California  in  1890,  and  shortly 
thereafter  was  appointed  assistant  district  at- 
torney of  Sonoma  county.  He  continued  in 
this  position,  under  both  Republican  and  Demo- 
cratic administrations,  until  1895,  when  he  re- 
signed his  office  to  enter  into  partnership  with 
Albert  G.  Burnett  at  Santa  Rosa.  This  asso- 
ciation was  terminated  in  1897,  by  Mr.  Bur- 
nett's election  as  Superior  Judge  of  Sonoma 
county,  since  which  time  Mr.  Leppo  has  en- 
gaged in  the  practice  alone.  His  career  as  a 
lawyer  has  been  successful,  and  he  is  rec- 
ognized as  an  able,  energetic  and  aggressive, 
but  careful,  practitioner  and  counsellor,  and 
his  integrity  is  unquestioned. 


driving,  and  other  outdoor  diversions.  These 
enable  him  to  apply  himself  the  more  effectively 
to  his  profession.  He  is  a  man  of  great  in- 
dustry. 

WARREN   E.   LLOYD. 

Warren  E.  Lloyd  is  a  young  member  of  the 
Los  Angeles  bar,  who  has  availed  himself  of 
more  than  ordinary  opportunities  for  prepara- 
tion for  his  profession.  He  was  graduated  with 
the  degrees  of  "B.L."  and  "M.  L."  from  the  Uni- 
versity of  California  in  1895,  after  which  he  con- 
tinued his  studies  in  the  universities  of  Berlin 
and  Munich.  Returning  tn  Yale  University  in 
order  to  accept  a  fellowship  offered  him  by  the 
Yale  Alumni  Association  of  California,  he  re- 
ceived the  degree  of  "Ph.  D."  from  that  insti- 
tution in  1898.  Thus  equipped,  he  took  up  the 
law  in  earnest,  and  entered  the  office  of  the 
well  known  firm  of  Bicknell,  Gibson  &  Trask, 
of  Los  Angeles,  first  as  a  student,  and  later  as 
an  assistant  in  the  office.  Recently  he  has  taken 
offices  of  his  own  at  rooms  340-341  Bradbury 
Block,  Los  Angeles,  California. 

Mr.  Lloyd  was  born  in  Nebraska  City.  Ne- 
braska. February  28.  1869,  the  son  of  Hon. 
Lewis  Marshall  Lloyd,  for  many  years  a  prac- 
ticing lawyer  of  Missouri,  twice  elected  county 
attorney,  and  state  senator  from  his  district. 
Warren  E.  Lloyd  moved  with  his  parents  to 
California  in  1887,  since  which  time  with  his 
father  and  brothers  he  has  been  connected  with 
various  successful  business  enterprises. 

Among  academic  honors  received  by  him 
while  in  college  were  the  appointment  as 
Charter  Day  speaker  of  the  Un-iversity  of  Cali- 
fornia in  1895.  and  the  offer  of  an  appointment 
as  lecturer  in  philosophy  at  Yale  University. 
He  is  an  active  member  of  the  University  Club 
of  Los  Angeles. 


Clifford  McClellan 


History  of  the  Bench  and  Bar  of  California. 


045 


CLIFFORD  McCLELLAN. 

Among  the  younger  members  of  the  CaHfor- 
nia  bar  few  are  better,  and  none  more  favora- 
bly, known  than  Mr.  Clifford  McClellan,  the 
junior  member  of  the  San  Francisco  law  firm 
of  McClellan  &  McClellan. 

Mr.  McClellan  oDtained  a  thorough  educa- 
tion in  the  schools  of  San  Francisco,  the 
Berkeley  High  School,  the  University  of  Cali- 
fornia and  the  Hastings  College  of  the  Law. 
Graduating  from  the  law  school,  he  was  ad- 
mitted to  practice  by  the  Supreme  Court  of  the 
State  of  California,  May  21,  i8g6,  immediately 
entering  into  practice  with  his  brother,  Mr. 
R.  Bruce  McClellan,  which  association  still 
continues. 

Mr.  McClellan  was  born  at  Bridgeport,  Con- 
necticut, September  2^,  1872,  but  came  to  Cali- 
fornia in  his  infancy,  and  has  since  remained 
here. 

In  his  college  days  much  prominence  was  at- 
tained in  athletic  circles,  and  many  trophies 
adorn  his  home. 

Like  his  brother,  Mr.  McClellan  has  always 
taken  a  deep  interest  in  letters  and  politics, 
contributing  his  efforts  largely  to  both  fields. 
Much  of  his  time  has  been  given  to  mining 
and  patent  law,  although  his  practice  embraces 
all  branches. 

JOHN  H.  MAGOFFEY. 

Mr.  Magoffey  was  born  at  Scott's  Bar  in 
Siskiyou  county,  on  the  ist  of  January,  1863. 
He  passed  his  youth  in  that  county  until,  at 
the  age  of  majority,  he  removed  to  Sacra- 
mento, where  he  followed  the  profession  of 
official  stenographic  reporter  in  the  Superior 
Court,  an  occupation  which  he  had  previously 
followed  for  several  years  in  the  Superior 
Court  of  Siskiyou  county.  Upon  the  election 
of  the  Hon.  C.  H.  Garoutte,  now  Associate 
Justice  of  the  Supreme  Court,  as  Superior 
Judge  of  Yolo  county,  Mr.  Mas^offey  received 
the  appointment  of  official  stenographic  re- 
porter of  that  county,  and  kept  the  position 
until  in  1890.  In  that  year  he  was  admitted 
to  practice  in  the  Supreme  Court  of  this 
State.  Afterward,  in  1891,  1892  and  1893, 
he  was  city  attorney  of  Woodland,  the  county 
seat  of  Yolo  county.  It  was  a  period  when  a 
great  many  important  legal  questions  arose, 
affecting  the  city  government.  Mr.  Magoffey 
carried  on  the  various  actions  to  a  successful 
termination  so  long  as  he  continued  to  hold 
the  office.  In  the  beginning  of  the  year  of 
1893  he  resigned,  to  remove  to  Los  Angeles. 
In  January,  1894,  he  was  recalled  to  the 
county  of  his  nativity  by  the  death  of  his 
father,  and  has  since  continued  to  reside  there 
and  practice  his  profession.  He  has  built 
up  a  large  and  lucrative  practice  and  enjoys 
the  esteem  of  the  people  generally. 

JAMES  P.  MAHAN. 

James  P.  Mahan  was  born  at  Blue  Lake, 
California.  August  18.  1868.  He  is  of  Irish 
descent.  He  was  educated  at  Blue  Lake,  Eu- 
reka, and  San  Jose  in  this  State,  and  at  Ami 
Arbor,  Michigan.    He  was  graduated  from  the 


law   school   of  the   University  of  Michigan   in 
the  class  of  1895. 

Mr.  Mahan  commenced  practicing  law  in 
Eureka  in  1895.  He  is  senior  member  of 
the  law  firm  of  Mahan  &  Mahan,  of  that  place. 
Before  commencing  the  practice  he  had  been 
at  different  times  a  farmer,  woodsman,  tally- 
man and  school  teacher.  He  was  principal  of 
the  Blue  Lake  schools  for  seven  terms.  Mr. 
Mahan  is  a  Democrat  in  politics,  and  has  been 
secretary  of  the  Democratic  county  comtnit- 
tee  of  Humboldt  county  since  1896. 


LAWRENCE   E.   MAHAN. 

Lawrence  E.  Mahan  was  born  in  Blue  Lake, 
California,  on  May  27th,  1871.  He  is  of  Irish 
descent;  and  is  a  graduate  of  the  University 
of  Michigan,  of  the  class  of  1895.  In  that  year, 
1895,  he  commenced  the  practice  of  law  in  Eu- 
reka. He  is  junior  member  of  the  law  firm  of 
Mahan  &  Mahan.  Before  taking  up  the  prac- 
tice of  law  he  was  a  school  teacher  and  a 
rancher.     He  is  a  Democrat  in  politics. 


CHAS.   A.   MAU. 


Charles  Albert  Mau  was  born  at  the  Calis- 
toga  Hot  Springs,  Napa  county,  California, 
March  29th,  1869.  His  father  was  born  in 
Germany  and  came  to  the  United  States  at  the 
age  of  fourteen  years,  settling  in  New  York. 
He  came  to  California  in  1850,  and  became  a 
prominent    civil    engineer. 

Mr.  Man's  mother  is  a  native  of  New  York. 
One  of  her  ancestors  was  General  William 
Prescott,  of  Bunker  Hill   fame. 

Mr.  Mau  received  a  common  school  edu- 
cation, and  at  the  age  of  twelve  years,  went  to 
work  on  a  farm  in  Capay  vallev,  California. 
Leaving  the  farm,  he  went  to  San  Francisco 
and  finished  his  education.  At  the  age  of 
twenty-one  years  he  entered  the  United  States 
customs  service,  studying  law  at  evenings. 
He  afterward  entered  the  law  office  of  John 
H.  Henderson  in  San  Francisco,  where  he 
continued  his  studies  until  admitted  to  the 
bar  in  1892.  Since  then  he  has  continued  to 
practice  with  much  success.  He  also  has  been 
prominently  connected  with  politics  in  this 
Stale,  and  has  been  president  of  the  Repub- 
lican club  of  his  assembly  district.  He  is  of 
pleasing  address  and  has  a  wide  acquaintance. 
He  is  very  much  devoted  to  his  profession, 
and  his  legal  business  has  already  called 
him  to  various  parts  of  the  State,  and  to 
New  York  city.  He  has  a  wife  and  a  son. 
He  was  married  at  San  Francisco,  on  the  nth 
of  January,  1893,  to  Miss  Louise  Hofman, 
of  that  city. 

A.  B.  McCUTCHEN. 

A.  B.  McCutchcn  was  born  in  Columbia, 
Missouri.  .August  14.  1866.  and  grew  up  in  Cali- 
fornia, coming  to  this  State  at  the  age  of 
five  years.  He  was  educated  in  the  public 
schools  and  also  under  private  tuition.  He 
was  engaged  in  general  merchandising  and 
the   wholesale   grocery   business   from    1884   to 


1046 


History  of  the  Bench  and  Bar  of  California. 


1888.  in  San  Francisco.  In  1888-1890  he  was 
assistant  cashier  of  the  Farmers'  Savmgs  Bank 
at  Lakeport,  California. 

Mr.  McCutchcn  studied  law  at  San  Diego, 
where  he  went  in  1890.  and  entered  the  office 
of  Hunsakcr.  Britt  &  Goodrich. 

In  1 891  he  was  admitted  to  the  bar  by  the 
State  Supreme  Court.  He  removed  to  Los 
Angeles  in  1893.  Two  of  his  San  Diego  pre- 
ceptors. Messrs.  Hunsakcr  and  Goodrich,  had 
already  removed  to  the  larger  city,  and  were 
practicing  there  in  partnership,  and  he  now 
became  one  of  the  firm,  which  took  the  style 
of  Hunsaker.  Goodrich  &  McCutchen.  This 
firm  was  dissolved  in  1895-  I"  1896  the  part- 
nership of  Goodrich  &  McCutchen  was  formed, 
and  is  still  existing.  This  is  one  of  the  busiest 
firms  in  the  State,  and  has  always  had  the  good 
will   of  the   profession   and   the   esteem  of  the 

bench.  .  ,,     •  ,        r 

Mr.  McCutchcn  is  in  the  full  tide  of  pros- 
perity in  his  profession,  and  is  a  most  worthy 
man  personally.  „  o     Af 

He  married,  on  December  28.  1898.  Miss 
Harriet  A.  Chapman,  eldest  daughter  of  John 
S  Chapman,  the  head  of  the  Los  Angeles 
bar  (q.  v.)  They  have  one  child,  a  boy,  born 
March   5,   1900. 

HENRY    B.    MAYO. 

Henry  B.  Mayo,  although  hardly  yet  in  his 
prime,  has  been  well  known  and  in  successful 
practice  at  the  San  Francisco  bar  for  many 
years.     He   was   born    in    Peoria   county.    IIH- 


on  which  he  looks  back  with  much  satisfac- 
tion. He  is  a  genial  man.  a  good  talker  and 
well  read,  and  greatly  devoted  to  the  profes- 
sion. He  has  been  at  the  San  Francisco  bar 
ever   since  his  admission,   in   1887. 


nois.  May  28.  1861.  He  came  to  California  at 
the  age  of  twelve,  with  his  father.  Colonel 
H.  H.  Mavo.  who  had  been  Colonel  of  the 
Fourteenth  Illinois,  and  had  been  in  business 
at  Rock  Island.  His  father's  death  occurred 
here,  and  the  son  went  ba^^k  to  Illinois,  at- 
tended school  and  jireparea  nimself  for  the 
bar.  He  was  admitted  to  practice  in  1887. 
Prior  to  this,  and  after  leaving  school,  he 
followed  several  other  pursuits,  and  had  many 
adventures,  and  hardships,  which  need  not  be 
detailed,  but  which  gave  him  breadth  of  view 
and  helped  to  mould  a   strong  character,   and 


DANIEL    McFADZEAX. 

Daniel  McFadzean  was  born  in  the  province 
of  Ontario,  Canada,  May  19,  1867.  His  ances- 
tors were  from  Scotland.  He  spent  his  boy- 
hood in  Ontario,  and  obtained  a  common 
school  education  in  the  schools  of  that  prov- 
ince. He  afterwards  prepared  himself  for  a 
school  teacher  by  taking  a  course  in  a  pro- 
fessional training  school,  and  in  his  eight- 
eenth year  commenced  teaching.  After  pursu- 
ing this  calling  nearly  three  years  he  made  a 
trip  to  Alabama,  and  shortly  afterwards 
started  for  California,  where  he  arrived  in  his 
twenty-first  year.  He  located  at  Visalia.  Tu- 
lare county,  and  taught  in  the  high  school 
of  that  city  for  four  years.  During  his  spare 
hours  he  read  law,  and  after  spending  some 
time  in  the  law  offices  of  Mullany,  Grant  & 
Gushing,  in  San  Francisco,  he  was  admitted 
to  the  bar  on  examination  before  the  Supreme 
Court  of  the  State  in   August.   1893. 

He  immediately  returned  to  Visalia,  and 
there  formed  a  law  partnership  with  R.  F, 
Roth,  under  the  firm  name  of  Roth  &  Mc- 
Fadzean, which  firm  still  continues.  In  the 
same  year  he  married  Miss  Nell  Owen,  a 
native  daughter  of  Visalia.  whose  family  has 
been  identified  with  the  public  and  political 
history  of  Tulare  county   since  its   formation. 

Mr.  McFadzean  has  for  the  past  two  years 
been  president  of  the  board  of  education  of 
Visalia.  He  has  been  given  the  distinction  of 
being  elected  master  of  the  Masonic  lodge  of 
his  city  for  two  successive  years. 

Although  both  members  of  the  firm  of 
Roth  &  McFadzean  are  young  men,  they 
have  been  attorneys  of  record  in  many  of 
the  important  cases  that  have  arisen  in  the 
county. 

JOHN  L.  McNAB. 

Mr.  McNab  was  born  in  Mendocino  county, 
of  Scotch  parentage.  March  3.  1874.  His  fa- 
ther was  one  of  the  leading  photographers  of 
Scotland,  but  was  compelled  by  ill  health  to 
remove  to  California.  He  purchased  a  large 
ranch  near  Ukiah.  and  it  was  there  that  the 
son  was  born.  The  latter  was  educated  in  the 
common  schools  and  at  Oakland  High  School. 
He  was  brought  up  in  a  home  life  where  he 
was  in  a  literary  atmosphere,  and  an  exten- 
sive library  was  at  his  command.  He  read 
widely,  and  when  about  eighteen  began  con- 
tributina:  to  the  editorial  columns  of  various 
weekly   newspapers. 

Mr.  McNab,  after  devoted  study  of  the  law, 
was  admitted  to  the  bar  immediately  upon 
coming  of  age.  He  gave  two  years  more  to 
literary  and  mstorical  application  and  legal 
branches,  and  then  started  in  practice  of  law 
at  Ukiah.  Soon  afterwards  he  was  engaged 
in  several  important  criminal  cases.  He  as- 
sisted in  the  prosecution  of  the  Dodge  murder 
trial,    in    wliicli    case    the    defendant    was    sent 


( 


i 


R.  Brace  McQellan 


History  of  the  Bench  and  Bar  of  California. 


1049 


lo  prison  for  life.  Soon  after  this  he  defended 
Gregoria  Berevara,  the  murderer  of  Benjamin 
Henderson,  a  weahhy  resident.  The  defense 
was  insanity,  and,  in  the  oi)inion  of  tlie  older 
members  of  the  bar,  it  was  skillfidly  conducted. 

After  two  years  in  practice,  Mr.  McNab 
formed  a  partnership  with  Maurice  Hirsch, 
and  the  new  firm,  under  the  name  of  McNab 
&  Hirsch,  succeeded  to  the  practice  of  J.  A. 
Cooper,  on  his  becoming  a  commissioner  of 
the  Supreme  Court.  The  firm  has  an  exten- 
sive practice,  being  attorneys  for  the  bank  of 
A.  F.  Redemeyer.  the  Bank  of  Mendocino,  and 
a  number  of  milling  corporations  ;  also  a  valu- 
able probate  practice,  having  handled  a  num- 
ber of  very  large  estates.  The  firm  has  quite 
a  large  library. 

Mr.  McNab  takes  an  active  interest  in  poli- 
tics, but  only  as  a  citizen,  not  as  a  candidate. 
He  gives  to  his  practice  most  of  his  time.  Un- 
der the  auspices  of  the  State  central  commit- 
tee, he  stumped  the  State  for  McKinley  in 
1900.  He  is  an  ardent  student  of  oratory, 
gifted  with  a  large  vocabulary,  and  has  a 
raDiu  delivery  and  a  clear,  strong  voice ;  in- 
deed, this  native  son,  who  is  so  well  estab- 
lished in  his  native  county,  is  one  of  the  most 
pleasing  and  effective  public  speakers  in  the 
State.  

R.  BRUCE  McCLELLAN. 

This  gentleman  is  the  senior  member  of  the 
law  firm  of  McClellan  &  McClellan,  with  ofifice^ 
at  San  Francisco,  California. 

Mr.  McClellan  was  born  in  San  Francisco 
thirty  years  ago,  and  received  his  education 
in  the  public  schools  of  that  city,  the  High 
School  at  Berkeley,  and  the  Hastings  College 
of  the  Law,  a  department  of  the  University  of 
California.  Admission  to  practice  was  granted 
Mr.  McClellan  by  the  Supreme  Court  of  the 
State  of  California  on  January  11,  1892,  and 
since  that  time  he  has  been  practicing  in  con- 
junction, first,  with  his  father,  the  late  R.  Guy 
McClellan,  and  after  the  latter's  demise,  witli 
his  brother,   Mr.   Clifford   McClellan. 

During  his  student  days  considerable  energy 
was  devoted  to  journalistic  work,  followed 
later  by  contributions  to  literature  in  the  way 
of  sketches  and  short  stories  in  the  periodicals 
of  the  day.  Politics  have  always  been  a  source 
of  keen  interest  to  Mr.  McClellan,  but,  al- 
though several  times  proffered  nominations  to 
liigh  office,  he  has  preferred  to  devote  himself 
lo  his  i)rofession. 

GEORGE  W.  MONTFJTH. 

George  Wilfrid  Monteith  was  born  in  Jack- 
son, Michigan,  April  9,  1862.  His  father,  the 
Hon.  John  Monteith,  was  a  popular  and  bril- 
liant member  f)f  the  famous  Yale  class  of  1856. 
that  graduated  so  many  distinguished  men. 
among  whom  arc  Justices  Brown  and  Brewer, 
of  the  United  States  Supreme  Court ;  Chaun- 
cey  M.  Depew.  Chief  Justice' Magruder  of  Illi- 
nois, and  many  others.  Mr.  Monteith's  mother 
was  Maria  Loomis,  and  she  died  in  1889.  His 
father,  originally  a  minister,  removed  from 
Jackson  to  Cleveland.  Ohio,  living  there  for 
three    years,    and    going    thence    to    St.    Fouis, 


in  1866,  and  residing  in  Alissouri  for  twenty 
years.  Mr.  Monteith's  grandfather.  Rev.  John 
Monteith,  Sr.,  was  the  son  of  Lieutenant  Dan- 
iel Monteith,  an  officer  in  the  Virginia  Regi- 
ment in  the  Revolutionary  War.  I'he  family 
came  from  Scotland  in  171a,  and  settled  in 
Virginia ;  the  younger  branch  of  the  family  now 
residing  in  the  Southern  States.  The"  Rev. 
John  Monteith,  Sr.,  married  Abigail  Harris, 
the  daughter  of  Captain  Luther  Harris,  an  offi- 
cer in  one  of  the  Connecticut  regiments  in  the 
Revolutionary  Army,  and  one  of  the  pioneers 
who  went  from  that  state  to  settle  the  western 
reserve  in  northern  Ohio,  soon  after  the  cen- 
tury began.  The  Rev.  John  Monteith,  Sr.,  was 
the  founder  and  first  nresident  of  Michigan 
University,  and  after  his  marriage  resided  in 
Elyria,  Ohio.  Although  of  Southern  parentage, 
lie  was  an  early  pioneer  in  the  movement  for 
the  abolition  of  slavery.  He  was  a  man  of 
strong  character,  of  great  moral  courage  and 
of  sterling  integrity.  Mr.  Monteith's  mother 
was  a  direct  descendant,  on  her  father's  side. 
of  Colonel  Ezekiel  Loomis,  who  commanded 
a  New  York  regiment  in  the  Revolutionary 
Army ;  and  on  her  mother's  side  of  Colonel 
William  Lewis,  a  nephew  of  General  Richard 
Montgomery,  who  fell  at  Quebec.  She  was 
born  in  Utica.  and  her  family,  the  Loomis,  is 
well  known  throughout  New  York  state. 

Mr.  Monteith's  father  gave  up  the  ministry 
in  1870, .when  he  became  state  superintendent 
of  schools  under  the  administration  of  Gov- 
ernor B.  Gratz  Brown,  and  to  him.  more  than 
to  any  other  man,  is  the  state  of  Missouri  in- 
debted for  its  magnificent  public  school  sys- 
tem. At  the  end  of  his  term,  he  returned  to 
his  farm,  and  soon  after  became  secretary  of 
the   state   board    of   agriculture. 

George  W.  Monteith  attended  the  public 
schools  from  the  time  he  was  seven  until  he 
was  eleven  years  of  age,  when  he  entered  the 
junior  class  of  the  Normal  School  at  Warrens- 
burg,  Missouri.  His  progress  as  a  scholar  was 
exceedingly  rapid,  and  so  much  so  that  had  he 
remained  at  the  Normal  School  he  would  have 
been  able  to  graduate  at  the  age  of  thirteen, 
five  years  under  the  legal  age  of  graduation. 
He  was  taken  from  school  in  1875  to  his  fa- 
ther's farm,  and  during  the  five  years  follow- 
ing lived  the  life  of  a  plain,  cvery-day  country 
boy.  During  this  period  he  had  few  compan- 
ions, and  spent  most  of  his  spare  time  in  read 
ing;  he  read  all  the  standard  literature,  fa- 
miliarized himself  with  history  and  political 
economy,  and  latterly,  read  most  of  the  (irei'k- 
and  German  philosophies.  .\t  the  age  nf 
eighteen  he  went  to  St.  Louis  to  start  life  on 
his  own  account.'  He  first  essayed  journalism, 
and  finally  launched  out  in  the  publication  i  f 
;i  r.'iilroad  monthly,  from  which  he  earned 
enough  money  to  carry  out  his  ambition  \o 
study  law.  In  October.  1881.  he  entered  ilu- 
St.  Louis  Law  School,  then  under  the  man- 
agement of  that  great  legal  educator.  Dr.  Wil- 
liam G.  Hammond.  He  attended  both  junior 
and  senior  lectures,  and  in  seven  months  passed 
the  examinations  and  was  admitted  to  the  bar: 
a  nioiiih  after  he  was  twenty  years  of  age. 
\\illi  his  preceptor  he  was  a  pronounced  fa- 
vorite   and    in     iS.'^o.    at     the    meeting    of    the 


1050 


History  of  the  Bench  and  Bar  of  California. 


American  Bar  Association  in  Chicago.  Di. 
Hammond,  in  discussing  Mr.  Monteith  with 
the  president.  David  Dudley  Field,  said,  "He 
is  the  best  of  all  my  boys ;  his  keen  wit,  un- 
commonly quick  mmd,  coupled  with  a  fine 
memory,  and  a  most  remarkable  faculty  for 
analysis,  exceeds  that  of  any  pupil  I  have  ever 
known  in  all  my  twenty-five  years  of  expe- 
rience. His  limitless  resources,  and  his  ability 
to  think  on  his  feet  and  speak  without  pre- 
vious preparation,  nas  surprised  me  again  and 
again.     I  expect  much  of  him  in  the  future." 

After  being  admitted  to  the  bar,  Mr.  Mon- 
teith practiced  law  in  St.  Louis  two  or  three 
years,  living  with  his  parents  in  a  suburb  of 
the  city,  called  Webster  Grove.  In  1885  he 
came  to  California,  and  located  in  Riverside. 
Upon  his  arrival  there,  he  did  not  know  a  single^ 
soul  in  the  town,  and  had  but  seventeen  dollars 
in  his  pocket.  Within  a  year  he  had  the  best 
practice  in  the  place,  was  city  attorney,  and  as- 
sistant district  attorney  of  the  county.  As  an 
official  he  handled  the  business  of  the  city 
so  well  that  he  never  lost  a  case  for  it,  but 
saved  it  a  great  deal  of  money.  As  a  public 
prosecutor  he  was  the  terror  of  the  evildoers 
of  the  community,  although  eminently  fair  and 
impartial  in  the  prosecution  of  one  accused  of 
crime. 

There  are  many  incidents  in  his  career  which 
serve  to  illustrate  his  cleverness  as  a  strategist, 
and  his  ability  as  a  lawyer.  His  first  case  tried 
when  a  law  student,  was  that  of  a  darkey 
preacher,  caught  in  the  act  of  stealing  wood 
from  the  railroad  company,  and  placed  on  trial 
with  a  clear  case  of  petit  larceny  against  him. 
He  secured  Mr.  Monteith  to  defend  him.  The 
prosecution  made  out  a  perfect  case,  without 
a  single  objection  from  Mr.  Monteith,  who,  by 
way  of  defense,  put  twenty  citizens  on  the 
stand  to  prove  his  own  client  would  steal  every- 
thing he  could  lay  his  hands  upon.  A  physi- 
cian followed,  who  explained  the  symptoms  of 
kleptomania,  and  with  an  authority  or  two  to 
establish  it  as  valid  defense,  Mr.  Monteith  won 
the  case.  The  effect  on  the  negro  population 
of  the  community  was.  however,  demoraliz- 
ing. 

Trying  a  case  in  a  justice's  court,  where  his 
opponent  was  a  lawyer  of  unsavory  reputation, 
who  had  succeeded  in  filling  the  jury  with  his 
political  adherents,  Mr.  Monteith  first  proved 
a  good  case,  from  which  it  was  evident  he  \yas 
entitled  to  the  verdict.  .\s  the  case  was  being 
submitted  to  tne  jury  he  stood  up  and  coolly 
told  them  that  he  knew  they  had  been  bribed 
to  decide  the  case  against  his  client;  that  he 
expected  notliing  at  their  hands,  and  dared 
them  to  deliver  the  goods.  Both  opposing 
counsel  and  jury  were  panic-stricken,  and  the 
latter,  without  a  murmur,  returned  a  verdict  in 
favor' of  Mr.  Monteith's  client. 

An  ancient  justice  of  the  peace  at  Webster 
Grove,  being  defeated  for  re-election  after 
many  years  01  service,  poured  forth  the  an- 
guisii  of  his  broken  heart  into  the  sympathetic 
ear  of  the  young  lawyer,  who  at  once  under- 
took the  task  of  securing  him  an  appointment 
from  the  County  Court.  For  that  purpose  he 
resurrected  an  antiquated  Missouri  statute  that 
for    some    unaccountable    reason    awarded    an 


extra  justice  of  the  peace  to  each  town  or 
city  in  the  state,  "containing  or  located  within 
five  hundred  yards  of  a  spring  of  curative  or 
supposed  curative  effects."  To  win  his  case 
Mr.  Monteith  only  needed  a  spring,  and  found 
one  four  hundred  and  ninety-six  yards  from 
the  town.  A  local  physician  prescribed  the 
water  to  several  patients,  with  results  suffi- 
cient to  enable  him  to  certify  to  the  "sup- 
posed curative  effects"  of  the  water,  and  the 
old  justice  obtained  the  coveted  appointment. 

Not  far  from  Riverside,  in  the  town  of  Col- 
ton,  there  lived  a  justice  of  the  peace  by  the 
name  of  Earp,  the  father  of  the  famous  Earp 
boys.  He  had  an  old  friend  and  crony  by  the 
name  of  Parks,  a  shrewd  English  pettifogger, 
who  always  dropped  his  h's.  In  Earp's  court 
Parks  was  invincible,  and  all  of  the  leading 
lawyers  in  San  Bernardino  county  had,  one 
after  the  other,  fallen  before  his  prowess,  much 
to  their  disgust.  They  concluded  to  bring  Mr. 
Monteith  in  contact  with  this  difficult  combina- 
tion, and  a  San  Bernardino  lawyer  in  the  plot 
induced  him  to  appear  in  his  place  in  a  case 
before  Earp.  with  Parks  as  his  opponent.  Mr. 
Monteith  appeared  at  the  appointed  time  with 
a  large  audience  of  his  fellow-members  at  the 
bar  on  hand,  to  enjoy  his  discomfiture.  Upon 
completing  the  testimony.  Mr.  Monteith  quickh' 
divining  the  purpose  of  the  plotters,  addressed 
the  ancient  justice,  and  told  him  that  he  fully 
appreciated  both  the  learning  of  Parks  and  of 
the  legal  acumen  of  his  honor ;  that  while  peo- 
ple generally  believed  that  Parks  had  some 
undue  influence  with  the  court,  still  he  did  not 
think  so.  and  that  the  reason  that  Parks  al- 
wavs  won  his  cases  was  due  to  his  great  dis- 
cretion in  only  selecting  good  cases,  and  to  the 
justice's  keen  discernment  of  the  accuracy  of 
Parks'  logic.  However,  he  said,  there  are  ex- 
ceptions to  all  rules,  and  this  case  would  prove 
the  exception  that  would  prove  the  rule,  in  that, 
in  this  particular  case.  Parks  had  inadvert- 
ently gotten  on  the  wrong  side,  and  that  the 
same  painstaking  discernment  that  had  induced 
his  honor  to  recognize  the  merits  of  Parks' 
other  cases  would  lead  him  to  recognize  that 
in  this  one  particular  he  had  made  a  blunder. 
The  justice  availed  himself  of  the  opportunity 
to  prove  the  rule  by  the  execution,  and  found 
in  favor  of  Mr.  Monteith's  side  of  the  case. 

While  in  the  district  attorney's  office  ho 
tried  everybody  alike,  on  one  occasion  prose- 
cuting two  of  his  intimate  friends,  who  becom- 
ine  intoxicated,  had  torn  down  the  signs  and 
broken  the  windows  of  a  young  merchant  just 
starting  out  in  business.  Neither  personal 
friendship  imr  the  strong  local  influence  en- 
listed in  favor  of  the  culprits  swayed  him  for 
one  minute,  and  he  succeeded  in  giving  each 
of  the  young  men  a  jail  sentence.  When  the 
Gabilan  murder  occurred,  a  poor  friendless 
old  man  was  charged  with  the  offense,  upon 
evidence  purely  circumstantial.  Pul)lic  senti- 
ment was  at  whitje  heat  against  the  accused. 
Mr.  Monteith  made  a  careful  investigation  in 
the  matter,  and  satisfied  himself  that  the  wrong 
man  had  been  arrested:  and  when  the  case 
came  on  for  preliminary  examination,  in  a 
crowded  courtroom  filled  with  angry  men.  fear- 
lessly dismissed  the  charge.     He  was  roundl} 


,.V^^;:Y.^7^'-.-.'--.-Jp,- 


f 


George   W.   Monteith 


History  of  the  Bench  and  Bar  of  California. 


1058 


abused  for  it,  and  barely  escaped  personal  vio- 
lence, and  the  sentiment  was  so  sirong  that  his 
principal  was  defeated  for  re-election  on  ac- 
count of  the  stand  he  had  taken.  The  incom~ 
ing  district  attorney  unsuccessfully  prosecuted 
the  old  man  twice,  and  he  died  in  jail,  waiting 
his  third  trial.  Shortly  after  new  evidence  de- 
veloped, which  demonstrated  conclusively  that 
the  wrong  man  had  been  prosecuted,  and  that 
Mr.  Monteith's  view  of  the  case  was  correct. 
It  took  no  small  amount  of  moral  courage  to 
stand  up  and  dismiss  this  charge,  and  free  this 
old  man,  who  had  not  a  friend  in  the  world,  or 
even  a  dollar  to  employ  an  attorney. 

In  1887  ex-Governor  Merrill,  Richard  Gird 
and  others  conceived  the  plan  of  connecting  the 
Southern  Pacific  at  Pomona  with  San  Diego, 
and  employed  Mr.  Monteith  as  their  attorney. 
He  sold  out  his  tine  practice  in  Riverside  and 
removed  to  San  Diego,  where  he  incorporated 
the  Pomona,  Elsinore  &  San  Diego  Railroad. 
The  projectors  of  this  enterprise  sent  him  and 
Mr.  Gird  to  meet  Mr.  Huntington  and  Mr. 
Crocker  in  San  Francisco,  and  after  some  pre- 
liminary suggestions,  a  final  meeting  was  ar- 
ranged in  Governor  'Stanford's  old  office,  at 
Fourth  and  Townsend  streets.  Mr.  Creed  Hay- 
mond,  the  attorney,  produced  a  written  agree- 
ment and  turned  it  over  to  Mr.  Huntington, 
who  read  it  and  laid  it  on  the  table.  Mr.  Mon- 
teith, much  to  Mr.  Huntington's  annoj'ance, 
picked  it  up  and  read  it,  and  saw  that  it  bound 
Mr.  Gird  personally  to  furnish  the  Southern 
Pacific  with  free  right  of  way,  station  and  ter- 
minal facilities  on  the  entire  line  ;  an  undertak- 
ing that  would  ruin  Mr.  Gird.  In  spite  of  warn- 
ing scowls  and  nudges,  Mr.  Monteith  called 
Mr.  Gird  out  in  the  hall  and  induced  him  to 
refuse  to  attach  his  signature  to  the  agree- 
ment, and  to  leave  the  building,  while  Mr. 
Monteith  returned  to  the  railroad  magnate. 
Mr.  Huntington  was  wrathy,  he  raved  and 
stormed.  Mr.  Crocker  reproached  and  Hay- 
mond  cajoled,  and  all  to  no  purpose.  Mr.  Mon- 
teith firmly  and  plainly  told  Mr.  Huntington 
that  he  did  not  propose  to  permit  his  client  to 
sign  the  agreement,  and  that  he  was  utterly 
indifTerent  both  to  their  threats  and  their  prom- 
ises of  future  preferment.  Mr.  Huntington 
told  him  that  they  had  the  power  to  make  and 
unmake  men  in  California,  and  warned  him  of 
the  consequences  of  what  he  denominated  his 
folly.  Mr.  Monteith  was  obdurate ;  the  nego- 
tiations were  ended,  and  the  Southern  Pacific 
never  went  to  San  Diego.  Mr.  Huntington 
never  forgave  Monteith,  and  Monteith  never 
forgot  Huntington.  During  the  trial  of  the 
strikers  in  the  United  States  District  Court 
Frank  M.  Stone,  the  attorney,  was  called  by 
the  prosecution,  and,  by  clever  cross-e.xamina- 
tion,  Mr.  Monteith  drew  out  of  this  witness  all 
the  evidence  necessary  to  estal)Iish  Mr.  Hunt- 
ington's violation  of  the  interstate  commerce 
law  in  giving  Stone  a  pass  for  political  rea- 
sons. Mr.  Monteith  then  advised  the  strikers 
to  have  Mr.  Huntington  arrested,  and  he  pre- 
pared and  filed  a  complaint,  which  was  signed 
by  one  of  the  strikers,  charging  Mr.  Hunting- 
ton with  that  offense,  and  in  that  way  brought 
about  his  indictment  by  the  Federal  grand 
jury,  which  resulted  in  Mr.  Huntington  leav- 


ing hastily  for  Europe,  where  he  remained 
uniil  nis  iNCw  Yorls.  lawyers,  wtio  appeared  m 
lus  defense,  arranged  lUe  matter  to  nis  satis- 
laction.  in  ibyb  ne  brought  iVlr.  Huntington 
before  the  railroad  commissioners,  and  tne  lat- 
ter, who  had  boasted  of  his  wiiungness  to  an- 
swer the  questions  of  oUiers,  quailed  before 
answering  me  questions  ^Vir.  Monteith  proposed 
to  ask  him,  and  refused  to  do  so.  Mr.  ivion- 
leiui  nad  liim  cited  for  contempt.  Huniingion 
tooK  a  train  and  left  the  State,  m  the  meantime 
getting  the  courts  to  enjoin  the  railroad  com- 
missioners from  proceeding.  Mr.  Huntington 
never  came  to  California  afterwards  wituout 
more  or  less  apprehension  as  to  what  cliarac- 
ter  of  entertainment  Mr.  Monteith  had  in  store 
lor  mm.  He  hated  him  as  he  only  haled 
Adolph  Sutro,  and  in  1899,  published  a  vitriolic 
interview  in  language  that  was  neither  chaste 
nor  choice.  Mr.  Monteith  replied  with  good- 
humored  sarcasm  by  writing  Mr.  Huntington 
one  of  his  famous  open  letters,  wherein  he  drew 
a  characteristic  pen  picture  of  the  magnate  in 
that  piquant  style  of  which  ue  undoubtedly  is 
a  master.  It  was  copied  widely  and  Hunting- 
ton felt  keenly  the  lash  so  mercilessly  laid  on. 

During  his  residence  in  San  Diego,  Mr.  Mon- 
teith tried  a  number  of  important  cases,  includ- 
ing the  famous  Russell  vs.  McDowell  election 
contest,  where  he  succeeded  in  unearthing  great 
frauds,  and  having  the  vote  of  three  precincts 
thrown  out.  It  required  three  months'  trial, 
and  the  production  of  1600  witnesses  in  open 
court  to  do  this. 

Mr.  Monteith  removed  his  office  from  San 
Diego  to  San  Francisco  in  1892,  residing  in 
San  Rafael  for  six  years,  and  finally  removed 
to  the  city  in  1898. 

In  1894  he  was  employed  to  defend  the  Amer. 
ican  Railway  Union  strikers,  indicted  under 
the  Sherman  anti-trust  act,  for  engaging  in  a 
conspiracy  to  retard  interstate  commerce.  This 
great  case  was  tried  for  five  months  before  a 
jury,  and  is  the  longest  criminal  case  of  the 
kind  ever  tried.  He  defended  it  all  alone,  and 
in  the  end  won  the  case. 

In  1894  he  was  employed  by  the  local  labor 
unions  to  save  the  life  of  S.  D.  Worden,  con- 
victed of  train  wrecking,  who  was  to  be  hanged 
on  June  4.  He  had  but  four  days  in  which 
to  act,  and  spent  two  of  these  in  an  unsuccess- 
ful appeal  to  the  Governor,  and  then  obtained 
a  writ  of  habeas  corpus  from  the  United  States 
Court,  perfected  an  appeal  and  obtained  a  stay 
of  proceedings  just  in  time  to  keep  his  man 
from  being  hanged,  the  scaffold  being  erected 
and  the  execution  ready  to  take  place,  when 
the  papers  were  served  upon  the  warden.  I'lti- 
mately,   Worden's  life  was  saved. 

As  a  lawyer,  he  never  engages  in  any  busi- 
ness for  any  corporation  exercising  a  public 
franchise,  and  a  great  deal  of  his  business  is 
among  the  poorer  class  of  clients.  His  intimate 
knowledge  of  practice  and  his  large  fund  of 
resources  have  brought  him  a  great  deal  of 
business,  which  he  has  successfully  handled 
after  others  have  given  it  up. 

The  Corte-Madera  land  case  litigation  for 
forty  years  achieved  its  first  succccss  on  be- 
lialf  of  the  occupants  under  his  management, 
and  then  in  the  Federal   Supreme  Court.  An- 


1054 


History  of  the  Bench  and  Bar  of  California. 


oilier  example  is  the  J.  Z.  Davis  will  case,  in 
which  nearly  all  the  lawyers  in  San  Francisco 
to  whom  it  was  offered  had  given  it  up.  but  he 
found  a  way  in  which  to  get  his  client  into 
court.  Gratz   K.  Bkowx. 

W.  W.  MIDDLECOFF. 

Mr.  .Middlecoff  was  born  in  Missouri  in 
1871.  His  education  was  acquired  in  the  pub- 
lic schools  of  that  State,  and  in  the  Univer- 
sity of  Southern  California  at  Los  Angeles. 
He  studied  law  in  San  Francisco,  and  was 
admitted  to  the  bar  in  that  city  on  July  25. 
1892.  Mr.  Middlecoff  is.  although  a  young 
man.  well  known  throughout  the  State,  and 
has  tried  as  many  cases,  perhaps,  as  any  other 
attorney  of  his  years.  He  is  a  member  of  the 
Knights  of  Pythias,  F.  &  A.  M.,  Union  League 
Club  of  San  Francisco,  and  the  San  Francisco 
Bar  Association.  He  is  now  settled  at  Stock- 
ton, and  is  practicing  in  partnership  with  ex- 
Congressman  James  A.  Loutitt  ( Loutitt  & 
Middlecoff). 

ALFRED  J.   MORGANSTERN. 

Mr.  Morganstern  is  a  native  of  Pennsyl- 
vania. His  education  was  acquired  in  the  pub- 
lic schools  of  his  native  State  and  of  the  State 
of  Minnesota.  He  began  the  practice  of  law  in 
San  Francisco  in  1890,  and  has  since  figured  in 
much  litigation  of  a  semi-political  character. 
He  has  been  a  prominent  figure  in  Repub- 
lican politics  in  California  since  1892,  and 
until  recently  devoted  much  of  his  time  to 
affairs  of  government.  The  growth  of  his 
private  practice  has  gradually  withdrawn  him 
from    political    matters. 

Mr.  Morganstern  has  accpiired  a  considera- 
ble reputation  as  a  trial  practitioner,  and  many 
of  the  poorer  classes  of  San  Francisco  testify 
to  the  fact  that  he  practices  his  profession 
rather  from  love  of  it  than  from  mere  gain. 
He  is  still  a  young  man  and  his  many  engage- 
ments bespeak  his  activity. 

JOHN   W.    AHTCHELL. 

John  W.  Mitchell,  of  the  Los  Angeles  bar, 
was  born  in  Lynchburg.  Virginia,  November 
2^,  1861.  His  early  education  was  received 
in  public  and  private  schools.  In  his  prepara- 
tion for  the  bar  he  spent  about  five  years  in 
the  office  of  John  W.  Daniel,  now,  and  for 
some  years  past.  United  States  senator.  This 
was  followed  by  a  course  in  Professor  Minor's 
law  class  at  the  University  of  Virginia.  He 
was  admitted  to  the  bar  in  1881.  After  prac- 
ticing law  in  his  native  state  for  several  years 
he  removed  to  Texas,  and  followed  the  pro- 
fession, first  at  Houston,  then  at  Galveston. 

Mr.  Mitchell  caine  to  California  in  1887. 
He  located  at  Los  Angeles,  and  has  always 
since  been  at  that  bar.  He  soon  acquired  a 
fine  practice.  .Among  his  clients  arc  large 
corporations  and  manufacturing  comi)anies. 
whose  legal  business  has  turned  him  to  cor- 
poration law  as  a  specialty.  He  has  conducted 
alone  and  taken  to  the  higher  courts  some 
celebrated  cases,  notably  the  case  of  Byrne  vs. 
Drain,  street  superintendent  of  Los  .Angeles. 
In    this   action,    the   procedure    in    the    opening 


and  widening  of  streets,  which  liad  been  fol- 
lowed for  years  in  Los  Angeles,  was  set  aside. 

Also  worthy  of  mention  is  the  case  of 
Swarth  vs.  The  Los  Angeles  LTniversity,  in 
the  State  and  United  States  Courts,  in  which 
is  involved  the  right  to  divert  the  use  of 
])roperty  from  the  purpose  intended  by  the 
donors — for    educational    purposes. 

Mr.  Mitchell  is  of  Democratic  politics.  He 
has  served  for  many  years  as  a  member  of  the 
State  Central  Committee  of  his  party.  He 
has  made  a  state  reputation  as  a  campaign  ora- 
tor, and  has  taken  the  platform  for  his  party 
in  all  sections  of  the  State.  In  the  campaign 
oi  1894.  which  resulted  in  the  election  of  Gov- 
ernor Budd,  and  in  i8g6.  the  first  Bryan  cam- 
])aign.  he  was  particularly  active.  A  cultured 
man.  he  has  contributed  to  literature,  through 


leading  journals  and  magazines,  is  the  author 
of  several  plays  of  decided  merit,  and  has 
been  editor-in-chief  of  an  influential  daily 
newspaper,  the  Houston  (Texas)  Post.  His 
knowledge  of  law,  his  general  learning,  his 
conversational  powers,  and  his  personal  ad- 
dress, make  him  an  authority  in  his  profes- 
sion, and  an  interesting  man  in  private  life. 
His  friends  are  many,  including  eminent  men 
of  our  bench  and  bar,  prominent  citizens  and 
public  officials.  These,  from  time  to  time, 
enjoy  the  hospitality  of  his  beautiful  home  in 
the  Western  part,  the  fine  residence  section,  of 
Los   Angeles   city. 

Mr.  Mitchell  was  united  in  marriage  at  Los 
Angeles  on  the  30th  day  of  May.  1888,  to  the 
only  daughter  of  Nathaniel  C.  Selby.  of  Ken- 
tucky. 

There  are  no  children  of  this  union.  Mrs. 
Mitchell  was  appointed  by  Governor  Budd  a 
trustee  of  Whittier  State  School,  in  1895,  and 
has  since  held  this  position.  She  has  also 
been  honored  by  being  elected  president  of 
the  board  of  trustees  of  Whittier  State  School. 
She  has  given  particular  study  to  the  refor- 
mation of  wayward  children.  She  is  regarded 
as  an  authority  on  this  branch  of  sociological 
reform. 


Louis  Oneal 


History  of  the  Bench  and  Bar  of  California. 


1057 


LOUIS  ONEAL. 

Louis  Oneal,  State  senator-elect  for  the 
Thirty-first  senatorial  district,  San  Jose,  was 
born  in  the  town  of  Paradise  Valley,  near  the 
boundary  line  of  California  and  Nevada,  in 
1874.  A  young  senator,  indeed.  But  he  was 
nominated  by  his  party  (Republican)  for  the 
office  on  August  18,  1900,  amid  great  enthu- 
siasm, after  many  speeches  had  been  made  in 
his  eulogy,  and  was  elected  on  the  6th  of  No- 
vember by  an  overwhelming  majority. 

The  Senator's  father  was  a  poor  cattle 
ranger  of  Paradise  Valley,  and  died  when  the 
son  was  a  boy,  leaving  also  a  widow  and  a 
young  daughter.  "Louie"  attended  the  country 
school  in  his  native  town,  and  by  toil  of  various 
kinds,  educated  himself  and  maintained  the 
family.  After  some  years  the  cattle  range  was 
sold,  and  the  family  removed  to  San  Jose. 
The  son  was  now  sixteen.  He  passed  through 
the  public  schools  with  credit  and  took  a  col- 
lege course.  He  then  began  the  study  of  the 
law  at  San  Jose,  and  in  due  time  was  admitted 
to  practice  by  the  Supreme  Court.  Leading 
attorneys  had  become  interested  in  him  and 
gave  him  advice  and  legal  training.  During 
this  period  he  maintained  himself  and  the 
family  by  clerking  and  driving  a  delivery, 
wagon  for  Oscar  Promis,  the  crockery  mer- 
chant, holding  the  position  until  after  his  ad- 
mission to  the  bar. 

Mr.  Oneal,  not  long  after  he  began  his  pro- 
fessional career,  manifested  much  skill  and 
ability  in  the  trial  and  argument  of  cases,  and 
was  appointed  deputy  district  attorney,  to  fill 
a  vacancy.  Thereafter  he  was  selected  by  the 
board  of  supervisors  to  fill  a  vacancy  as  justice 
of  the  peace.  From  this  place  he  passed  to  the 
senate  chamber  at  Sacramento.  There  he  has 
already  justified  the  good  opinion  and  expec- 
tation 01  his  constituency.  He  is  a  man  of 
great  natural  force,  a  strong  speaker,  widely 
informed,  and  to  a  vigorous  mind  unites  a 
sunny  disposition. 


JAMES  C.  NEEDHAM. 

Hon.  James  Carson  Needham,  representa- 
tive in  congress  from  the  Seventh  district,  com- 
prising the  counties  of  Stanislaus.  Merced.  San 
Benito,  Madera,  Fresno,  Kings.  Tulare,  Kern. 
San  Bernardino,  Riverside,  Orange  and  San 
Diego,  was  born  in  Carson  City,  Nevada,  on 
September  17,  1864.  He  had  his  birth  in  an 
emigrant  wagon,  his  parents  being  at  the  time 
en  route  across  the  plains  to  the  golden  shore, 
where  he  was  fated  to  achieve  distinction  in 
law  and  politics. 

Mr.  Needham  attended  the  public  scliools, 
and  was  duly  graduated  from  the  San  Jose 
High  School.  He  also  took  a  collegiale  course 
at  the  Univicrsity  of  the  Pacific  at  San  Jose, 
graduating  in  the  year  1886,  with  the  degree 
of  Ph.  B.  He  then  took  up  the  study  of  law, 
and  had  spent, a  year  in  the  law  department 
of  the  University  of  Michigan  when  he  was 
appointed,  under  civil  service  rules,  to  a  clerk- 
ship  in   the   adjutant-general's  office  al    Wash- 


ington. D.  C.  This  position  he  soon  relin- 
quished, and  returned  to  the  Michigan  Uni- 
versity. He  completed  his  law  course,  and 
was  graduated  with  the  class  of  1889,  with  the 
degree  of  LL.  B.  Coming  back  to  California, 
he  located  at  Modesto,  in  November,  1889,  and 
has  ever  since  resided  there,  following  the 
practice  of  law.  He  very  soon  became  promi- 
nent at  the  bar,  and  on  the  Republican  side  of 
politics — indeed,  his  party  nominated  him  for 
State  senator  in  the  following  year.  His  dis- 
trict was  strongly  Democratic,  and  he  was  de- 
feated. He  has  been  chairman  of  the  Repub- 
lican county  committee,  and  a  member  of  the 
congressional  committee.  He  was  elected  in 
1898  to  the  Fifty-sixth  congress,  by  a  majority 
of  113  in  a  total  vote  of  over  41,000,  his  Demo- 
cratic competitor  being  Dr.  C.  H.  Castle  of 
Merced.  In  November,  1900,  Mr.  Needham 
was  re-elected  by  a  large  majority,  the  Demo- 
cratic candidate  being  Mr.  W.  D.  Crichton,  an 
able  and  successful  lawyer  of  Fresno. 


NATHAN  NEWBY. 


Mr.  Newby  is  a  native  of  Perquimans 
countv  North  Carolina.  He  was  the  son  of 
a  prosperous  planter,  and  was  born  on  his 
father's  extensive  plantation,  September  30, 
1868.  From  his  sixth  year  he  was  reared  at 
Hertford,  the  county  seat,  and  attended  Hert- 
ford Academy.  He  entered  the  law  class  at 
the  University  of  Virginia  in  October,  1887, 
and  was  graduated  in  June  of  the  following 
year,  with  the  degree  of  Bachelor  of  Law,  al- 
though the  prescribed  course  of  study  con- 
temnlated,  and  usually  necessitated,  the  period 
of  two  years  at  least. 

Not  being  of  age  at  the  time  of  graduation, 
he  entered  the  law  office  of  Hon.  T.  G.  Skin- 
ner then  a  member  of  Congress,  representing 
the  first  North  Carolina  district,  and  further 
pursued  the  study  of  law  while  learning  also 
the  procedure  in  actual  practice.  He  was  ad- 
mitted to  the  bar  by  the  Supreme  Court  of 
North  Carolina  on  September  28,  1889,  at 
which  time  he  was  still  two  days  under  his 
majority.  He  entered  on  the  profession  in  the 
far-famed  "Land  of  the  Sky,"  in  his  native 
state,  with  residence  and  office  at  Bryson  City, 
and  practiced  in  Swain  and  the  adjoining 
counties  constituting  the  Twelfth  Judicial  Dis- 
trict. 

So  far  as  his  share  in  the  litigation  of  his 
district  and  his  conduct  and  management  of 
the  same,  are  to  be  considered.  Mr.  Newby's 
professional  career  in  that  region  was  a  dis- 
tinguished success.  He  was,  with  an  occasional 
execution,  on  one  side  or  the  other,  of  every 
action  instituted,  but  law  business  was  scant, 
and  such  employment  as  lawyers  found  was 
poorly  compcn.sated.  Mr.  Newby  came  to  Cal- 
ifornia and  has  always  since  lived  and  prac- 
ticed at  Los  Angeles,  at  which  city  he  located 
July  18,  1895.  He  says  there  was  nothing 
overdrawn  in  the  picture  of  that  well-favored 
city,  dashed  off  for  him  in  the  Old  North 
State  b}^  a  returned  Californian.  six  years  ago. 

Mr.  Newby  is  alone  in  the  practice.  His 
clientage   is   valuable   and   increasing. 

1  lo   is   an   able  and   learned   man.  of  careful 


1058 


History  of  the  BcitcJi  and  Bar  of  California. 


and  correct  professional  methods.  He  is  of 
Democratic  politics,  and  has  done  brilliant  and 
effective  service  for  his  party  as  a  pnblic 
speaker,  especially  in  the  campaign  of  1896. 
Of  fine  example  and  pure  life,  he  adorns  the 
profession  to  which  he  is  devoted. 

Mr.  Newby  is  a  religious  man.  and  was  for 
two  years  State  President  of  the  Epworth 
League  of  the  Methodist  Church  South  in  this 
State.  He  is  one  of  the  regular  lecturers  of 
the  Los  Angeles  Law  School,  being  one  of 
the  members  of  the  bar  of  that  city  who 
give  to  the  law  school  their  services  in  this 
capacity  without  compensation.  Hon.  Lewis 
A.  Groff,  who  is  also  federal  postmaster  at  Los 
Angeles,  is  the  dean  of  that  school.  Mr. 
Newby's  subject  is  Torts,  on  which  he  delivers 
a  lecture  to  the  school  once  a  week. 


OSCAR  C.  MUELLER. 

Probably  no  profession  affords  a  wider  field 
for  individual  enterprise  and  ability  than  does 
the"  law,  and  this  fact  has  attracted  to  its 
ranks  multitudes  of  ambitious  young  men  in 
every  generation  since  law  became  reduced  to 
a  recognized  science.  Our  subject  belongs  to 
that  class  of  young  men.  His  father.  Otto 
Mueller,  now  deceased,  was,  during  his  life- 
time, one  of  the  most  prominent  business  men 
of  Southern  California.  Oscar  C.  Mueller  was 
born  in  Denver,  Colorado,  in  1876,  but  has  re- 


is  varied,  he  has  made  probate  law  and  the 
law  relating  to  real  property  his  specialty.  Mr. 
Mueller  belongs  to  several  Masonic  orders. 
While  he  is  not  a  politician  in  any  sense  of 
the  word,  he  favors  the  platform  of  the  Re- 
publican party.  He  was  married,  April  5, 
igoo,  to  Miss  Ivy  S.  Schoder,  daughter  of  Jo- 
seph Schoder,  president  of  the  Union  Hard- 
ware and  Metal  Company,  of  Los  Angeles. 


HENRY  MULVIHILL. 

Henry  Mulvihill,  of  San  Francisco,  was 
born  and  educated  in  Ireland.  After  gradu- 
ating from  college,  he  entered  the  law  offices 


of  one  of  the  most  distinguished  legal  firms 
in  Ireland.  He  applied  himself  closely  to  the 
practical  as  well  as  theoretical  details  of  the 
profession,  and  there  he  gained  that  system- 
atic legal  training  which  is  indispensable  to 
success. 

Mr.  Mulvihill  was  admitted  to  practice  by 
the  Supreme  Court  of  California,  and  by  the 
Ignited  States  Federal  Courts.  He  is  a  close 
student,  and  devotes  his  whole  time  to  the 
interest  of  his  profession,  and  is  building  up 
a  good  business.  He  has  a  large  and  increas- 
ing clientele,  and  has  hosts  of  friends. 


sided  in  Los  Angeles  since  1880.  He  attended 
the  public  schools  until  he  determined  to  de- 
vote his  life  to  the  law.  His  legal  training 
was  received  in  the  law  office  of  the  late  Judge 
W.  H.  Wilde,  and  at  the  University  of  Vir- 
ginia. After  being  admitted  to  the  Supreme 
Court  of  California  he  traveled  extensively 
abroad.  Shortly  after  his  return  to  Los  An- 
geles he  went  into  partnership  with  Hon.  C.  C. 
Wright,  but  is  at  the  present  time  engaged  in 
the  practice  of  law  alone.     While  his  practice 


HENRY  NEWBURGH. 

Henry  Newburgh  was  born  at  Petaluma, 
California,  in  1873.  He  was  educated  in  the 
grammar  schools  and  the  High  School  of  that 
place.  He  read  law  in  the  office  of  C.  W. 
Cross,  in  San  Francisco,  and  attended  Hastings 
College,  and  was  graduated  from  that  institu- 
tion in  1897.  He  has  been  in  practice  in  San 
Francisco  since  that  time,  associated,  but  not 
as  a  partner,  with  Mr.  Cross,  before  named, 
and  F.  P.  Kelly.  He  is  Nobk-  Grand  of  Bay 
City  Lodge.  No.  71,  of  the  Odd  Fellows  or- 
der. 


m 


*! 


H 


Charles  L.  Taiton 


History  of  the  Bench  and  Bar  of  California. 


1601 


CHARLES  L.  PATTON. 

Mr.  Patton  is  not  a  "Philadelphia  lawyer," 
but  he  first  read  law  there.  He  is  one  of  our 
own  "native  sons"  of  reputation,  like  Stephen 
M.  White,  William  J.  Hunsaker,  and  some 
others  noticed  in  this  History.  He  was  born 
at  Petaluma,  in  1862.  nis  early  education 
was  begun  in  the  public  schools  of  San  Fran- 
cisco. In  1869  he  went  to  Philadelphia,  and 
remainea  as  late  as  1885,  graduating  from  one 
of  the  high  schools  there.  That  was  the  native 
city  of  his  father,  Charles  Patton,  who  was 
born  in  1812.  The  latter's  father  emigrated 
to  Philadelphia  from  England  about  the  year 
1780.  Our  subject's  mother,  Elizabeth  L. 
Clark,  was  also  born  in  that  city,  in  1827.  She 
was  descended  from  Jonas  Clark,  ruling  elder 
of  Cambridge,  Massachusetts,  in  1630.  She 
was  descended  through  her  mother  from 
George  Gray,  who  settled  in  Philadelphia  in 
1745.  A  large  section  in  the  southern  part  of 
that  city  is  named  Gray's  Ferry,  after  George 
Gray. 

Mr.  Patton  studied  law  in  Philadelphia  un- 
der the  supervision  of  R.  H.  Hinckley.  Re- 
turning to  California  in  1885,  he  was  admitted 
to  practice  by  our  State  Supreme  Court,  in 
January,  1887,  and  later  by  the  federal  courts 
at  San  Francisco.  All  of  his  professional  ca- 
reer has  been  in  that  city.  All  of  his  practice 
has  been  in  the  civil  line.  He  has  a  large  and 
valuable  business,  elegant  offices,  splendid  law 
and  miscellaneous  libraries,  and  is  in  easy  cir- 
cumstances. As  we  have  had  occasion  to  say 
of  others  of  our  subjects,  Mr.  Patton,  in  ad- 
dition to  his  powers  of  mind,  is  a  man  of  great 
physical  strength.  He  is  in  the  manifest  en- 
joyment of  hardy  manhood  and  a  well-regu- 
lated life. 

Mr.  Patton  is  prominent  in  the  line  of  fra- 
ternal work.  He  is  past  grand  master  of  Ma- 
sons in  California,  and  past  grand  chancellor 
of  Knights  of  Pythias.  He  is  of  Republican 
politics.  In  1898,  at  the  age  of  thirty-six,  he 
was  the  Republican  candidate  for  mayor  of 
San  Francisco,  against  Hon.  James  D.  Phelan. 
Mayor  Phelan  was  then  holding  the  office,  and 
by  his  administration  thereof  had  increased 
his  popularity,  and  he  was  re-elected,  in  1898, 
as,  indeed,  he  was  at  the  next  election,  over 
the  distinguished  citizen  of  wealth  and  learn- 
ing, Hon.   Horace  Davis. 

Mr.  Patton  married,  at  Oakland.  California, 
June  4,  1887,  Virginia  M.  Bowen.  Mrs.  Pat- 
ton died  at  Cape  May,  New  Jersey,  August  17, 
1900.     There  is  no  child  of  the  union. 


EDWARD   M.    NORTON. 

This  gentleman  is  the  son  of  Colonel  L.  A. 
Norton,  whose  life  of  thrilling  adventure  has 
already   been   narrated. 

He  was  born  at  Healdsburg,  Cal.,  on  the 
17th  of  September,  1868.  Admitted  to  the  bar 
on  the  20th  of  May,  1890,  he  has  been  in  con- 
tinuous practice  at  the  place  of  his  birth  ever 
since.  He  began  in  association  with  his 
father,  and  from  the  date  of  the  latter's  death 
(August  16,  1891),  he  has  been  in  partnership 


with  Hon.  W.  W.  Moreland  (Moreland  & 
Norton).'  He  was  city  attorney  of  Healds- 
burg for  four  years.  In  that  capacity  he 
prosecuted  the  case  of  the  City  of  Healds- 
burg vs.  Geo.  Mulligan  et  al.,  to  a  successful 
issue.  This  was  a  case  of  more  general  in- 
terest, perhaps,  than  any  other  that  has  ever 
arisen  in  that  city.  Mr.  Norton  is  unmar- 
ried. 

Mr.  Norton  received  his  early  education  in 
the  public  schools  of  Healdsburg,  and  he  is  a 
graduate  of  the  University  of  California. 


L.   N.   PETER. 


Mr.  Peter  was  born  in  Plumas  county, 
March  24,  1872,  and  was  raised  on  a  farm  in 
that  county.  He  received  his  education  in  the 
public  schools  of  Plumas,  and  commenced  the 
study  of  law  in  the  office  of  Judge  C.  E.  Mc- 
Laughlin, at  Quincy,  in  the  winter  of  1893. 
He  was  admitted  to  practice  by  the  Superior 
Court  of  Plumas  county,  in  March,  1895.  He 
remained  in  the  office  of  Judge  McLaughlin 
until  January  i,  1807.  at  which  time  Judge 
McLaughlin  assumed  the  duties  of  the  office 
of  Superior  Judge  of  Plumas  county.  Mr. 
Peter  then  opened  a  law  office  in  Quincy,  and 
has  practiced  law  ever  since.  He  was  ad- 
mitted to  the  bar  of  the  Supreme  Court  and 
to  that  of  the  United  States  Circuit  Court 
in  August,  i8g8. 

In  1898  Mr.  Peter  was  the  Democratic  nom- 
inee for  district  attorney  of  his  county,  but 
was  defeated  by  the  present  incumbent.  U.  S. 
Webb,  bv  ten  votes.  He  is  a  member  of  the 
Native  Sons  of  the  Golden  West. 

He  was  married,  February  22.  1899,  and  has 
one  daughter. 


JOSEPH  R.  PATTON. 

Mr.  Patton  was  born  in  the  Uvas  Valley. 
six  miles  northwest  of  Gilroy,  in  the  county  of 
Santa  Clara.  State  of  California,  on  the  nth 
dav  of  March,  1861,  and  is  the  eldest  son  of 
Warren  H.  Patton,  one  of  the  early  settlers 
and  officers  of  that  countv.  He  attended  the 
public  schools  in  the  neighborhood  of  his  birth 
until  1874 ;  then  he  spent  one  year  in  a  private 
school,  and  in  the  year  1S76  entered  as  a  stu- 
dent in  the  University  of  the  P.Tcific.  located 
near  San  Jose.  He  was  graduated  from  that 
institution  on  the  5th  of  June.  T879.  with  the 
degree  of  Bachelor  of  Philosophv.  He  then 
taught  school  for  six  months,  and  engaared  in 
work  in  other  directions  for  a  year,  and  in 
October,  1880,  entered  as  a  Taw  student  in  the 
law  department  of  the  University  of  Michi- 
gan, grad'iating  llicrefrom  on  the  20th  of 
March.  1882. 

Before  orradiralion.  however,  Mr.  Patton. 
uoon  examination  before  the  Supreme  Court  of 
the  state  of  Michigan,  was  duly  licensed  to 
practice  law  in  all  the  courts  of  that  state. 
He  hns  since  been  duly  licensed  to  practice  in 
the  Federal,  Supreme,  Circuit  and  District 
Courts,  and  in  the  State  Supreme  Court  of 
California. 


1062 


History  of  flic  Bcncii  ami  Bar  of  Caiifornia. 


Returning  to  California,  he  entered  the  office 
of  the  firm  of  Moore,  Laine  &  Johnson  of  San 
Jose,  and  continued  there  for  some  months, 
and  then  went  to  San  Luis  Obispo  county,  and 
opened  an  office  for  himself  in  January,  1883. 

In  the  fall  of  1894  he  received  the  nomina- 
tion for  district  attorney,  on  the  Republican 
ticket,  and  was  elected,  and  served  in  such  ca- 
pacity for  two  years. 


came  to  Ipswich.  Mass.,  in  1635 ;  Edmund 
Littlefield,  John  Libby,  John  Sparks,  and  Dr. 
Bray  Rosseter,  oi  Guilford,  Conn.  On  his 
mother's  side,  his  ancestors  were  Quakers. 
The  Aliens  and  Neals  were  early  settlers  in 
Maine.  His  great-grandfather,  Jacob  Allen, 
served  in  the  Revolutionary  War. 

Mr.     Perkins    began    his    education    in    the 
public    schools,    and    prepared    for    college    at 


In  the  month  of  January,  1887,  he  returned 
to  Santa  Clara  county,  and  opened  his  law- 
office  at  San  Jose,  at  which  place  he  has  since 
continued    to    reside. 

Mr.  Patton  has  given  but  little  attention  to 
criminal  law  since  1887.  but  has  rather  con- 
fined himself  to  the  general  practice,  giving 
particular  attention  to  the  law  of  corporations, 
probate  law  and  examination  of  land  titles.  In 
this  capacity  he  has  been  employed  by  several 
of  the  largest  corporations  in  Santa  Clara 
county,  and  during  the  past  ten  years  has 
handled  some  of  the  largest  estates  which 
have  been  administered  on  in  that  county. 

In  1888  Mr.  Patton  was  united  in  marriage 
to  Nellie  Flickinger,  one  of  the  daughters  of 
the  late  J.  H.  Flickinger  of  San  Jose.  There 
are  two  sons  of  the  union. 


THOMAS    ALLEN    PERKINS. 

This  gentleman  is  a  native  of  Wells,  York 
county,  Maine,  the  son  of  Sainuel  H.  and 
Sarah  (Allen)  Perkins.  On  his  father's  side, 
his  ancestors  were  among  the  earliest  Eng- 
lish settlers  of  New  England.  He  is  a  de- 
scendant of  John  Perkins,  of  Ipswich,  Mass., 
who  came  over  with  Roger  Williams  in  the 
ship  Lion  in  1631.  Other  of  his  ancestors 
were:  Rev.  John  Cotton,  minister  and  author, 
and  "father  of  Boston."  who  settled  in  Bos- 
ton, Mass.  in  1633;  Judge  Thomas  Bradbury, 
who  settled  in  York.  Maine,  in  1634;  Major 
Robert  Pike,  "the  Puritan  who  defended  the 
Quakers,  resisted  clerical  domination,  and 
opposed     witchcraft     prosecution."    and    who 


Berwick  Academy.  Maine.  He  graduated  from 
Dartmouth  College,  in  1890.  and  later  took  the 
degree  of  M.  A.  from  that  college.  He  has 
since  graduated  frotn  the  University  of  Cali- 
fornia ;  and  from  Hastings'  College  of  the 
Law,  with  the  degree  of  L.  L.  B.  He  was  ad- 
mitted to  the  bar  by  the  Supreme  Court  of 
California,  in  1894.  Since  then  he  has  prac- 
ticed in  San  Francisco.  He  takes  an  active 
interest  in  educational  institutions,  and  espe- 
cially those  from  which  he  graduated.  He  is 
a  member  of  Dartmouth  chapter,  .Alpha  Delta 
Phi ;  Legal  Fraternity  of  Phi  Delta  Phi ; 
Apollo  Lodge,  No,  123,  I.  O.  O.  F.  :  California 
Lodge.  No.  I.  F.  &  A.  M.  ;  and  the  Sons  of 
the   American    Revolution. 


W.  G.  POAGE. 


W.  G.  Poage,  district  attorney  of  Mendo- 
cino county,  was  born  in  Bates  county,  Mis- 
souri, March  21,  1869.  His  father,  S.  C. 
Poage.  who  was  also  a  lawyer,  was  a  Con- 
federate .soldier,  having  enlisted  as  a  boy  of 
si,xtecn.  and  served  during  the  four  years  of 
the  Civil  War.  He  was  twice  woinidcd  and 
for  some  time  a  prisoner  in  a  Northern  prison 
durinc  the  latter  part  of  the  war.  When  the 
great  conflict  was  over  he  returned  to  Mis- 
souri, and  commenced  the  study  of  law.  In 
1870  he  was  admitted  to  the  bar  and  began 
practice  in  Butler,  the  capital  of  the  county. 
In  1876  he  came  to  California  and  practiced 
for  several  years  in  Fresno,  and  then  in  San 
Luis  Obispo,  then  going  to  Idaho,  wdiere  he 
remained  for  three  years.  He  was  elected  a 
member  of  the  upper  house  of  the  Territorial 
legislature   and   went  to   Boise   City  and  took 


History  of  the  Bench  and  Bar  of  California. 


1063 


a  prominent  part  in  the  deliberations  of  that 
body.  He  returned  to  California  in  order  to 
find  better  educational  facilities  for  his  chil- 
dren. In  1884  he  located  in  Ukiah  and  there 
followed  his  profession  until  the  time  of  his 
death  in  1894.  He  was  for  several  years  city 
attorney  of  Ukiah  and  was  regarded  as  one 
of  the  best  informed  men  at  the  bar. 

His    son,    the    subject    of    this    sketch,    was 


San  Francisco,  where  he  has  been  many  years 
engaged  in  the  coffee  business ;  he  has  re- 
sided in  the  State  since   1850. 

Louis  C.  Pistolesi  received  a  common  school 
education,  and  after  graduating  from  Heald's 
Business  College,  engaged  in  the  coffee  busi- 
ness, but  he  soon  abandoned  mercantile  pur- 
suits for  the  study  of  law,  and  was  admitted 
to  the  bar  in   1802. 


educated  in  the  public  schools  of  Califor- 
nia, and  by  his  own  efforts  in  private,  and 
at  the  age  of  nineteen  became  a  teacher  of  a 
district  school  in  Mendocino  county.  He 
taught  in  various  places  until  in  1891,  when 
he  entered  the  State  University  with  the 
class  of  '95.  He  remained  here  two  years, 
taking  a  course  in  History  and  Political 
Science,  and  after  reading  law  in  his  father's 
office,  and  a  year's  study  at  Hastings  College 
of  Law,  he  was  admitted  to  practice  in  the 
Supreme  Court  in  January.  1894.  In  Febru- 
ary following  he  was  appointed  city  attor- 
ney of  Ukiah.  From  the  start  he  enjoyed  a 
lucrative  practice.  In  1898  he  was  nominated 
by  the  Democratic  party  for  district  attor- 
ney and  after  a  warmly  contested  campaign, 
during  which  he  spoke  from  the  stump  in 
every  precinct  in  the  county,  he  was  elected 
in^  a  majority  of  565  votes. 

On  March  21st.  1899,  on  h>^  30th  birthday 
Mr.  Poage  was  married  to  Miss  Ella  Laugh- 
lin.  then  one  of  the  teachers  of  the  Ukiah 
public  school.  He  has  a  pleasant  home  in 
the  suburbs  of  Ukiah.  Mr.  Poage  is  also  in- 
terested in  fruit  culture  and  has  one  of  the 
prettiest  prune  orchards  in  the  vallcj;  situated 
near  his  home. 

LOUIS  C.  PISTOLESI. 

Louis  C.  Pistolesi,  who  is  fast  taking  a 
prominent  position  among  the  members  of 
the  San  Francisco  bar,  was  born  at  San  Fran- 
cisco on  the  1st  day  of  January,  1866.  His 
family,  one  of  the  oldest  in  Italy,  counts 
amongst  its  sons  many  distinguished  in  the 
arts  and  sciences,  and  gave  its  name  to  the 
ancient  city  of  Pistola.  His  father,  G.  Pis- 
tolesi, is  one  of  the  best-known   merchants  in 


He  has  earned  an  en\iable  repulati(jn  for 
the  earnest  and  energetic  manner  in  which  he 
guards  the  interests  of  his  clients  and  has  been 
rewarded  by  a  considerable  practice. 

He  is  one  of  the  most  popular  members  of 
the  order  of  Native  Sons  of  the  Golden 
West,  and  on  the  occasion  of  the  reception 
tendered  to  the  returning  California  Volun- 
teers after  the  Spanish- American  war,  he  was 
selected  grand  marshal  of  the  largest  parade 
ever  seen  in  San  Francisco. 

He  is  past  president  of  Sequoia  Parlor.  N. 
S.  G.  W.,  and  now  a  deputy  grand  president  of 
that  order. 

R.   F.   ROBERTSON. 

R.  F.  Robertson,  city  attorney  of  Los  Gatos, 
Santa  Clara  county,  was  born  in  Mazatlan, 
Mexico,  on  October  12,  1863,  his  father,  R.  L. 
Robertson,  being  at  that  time  United  States 
consul    at    that    i)ort. 

He  came  with  his  parents  to  San  Francisco 
when  three  months  of  age,  and  tliere  received 
the  rudiments  of  his  education  in  the  public 
schools.  At  the  age  of  twenty  years  he 
moved  to  Los  Gatos.  where  he  has  since  con- 
tinuously resided.  He  is  well  established  in 
the  practice.  Mr.  Robertson  has  been  an 
active  worker  in  fraternal  matters,  having 
been  presiding  officer  in  the  local  lodges  of 
A.  O.  U.  W.,  I.  O.  O.  F.,  K.  of  P..  and  F.  & 
A.    M. 


W AI.ri'R  H.  ROBINSON. 

Walter  11.  Robinson  came  lo  California 
when  four  years  old.  and  with  his  parents  set- 
tled   in    Los    Angeles,    where   he    obtained    his 


1064 


History  of  the  Bench  and  Bar  of  California. 


education.  His  father  died  lliere  when  the 
son  was  very  young,  and  the  latter  earned  his 
own  Hving  and  assisted  his  mother  while  pre- 
paring for  his  future  career.  He  studied  law 
witlv  S.  P.  Mulford,  now  of  Mulford  & 
Pollard,  entering  that  office  in  1890.  He  re- 
mained there  until  1893,  when  he  obtained 
a  lucrative  position  in  a  prominent  law  office 
in  San  Francisco,  and  while  he  had  a  great  deal 
of  work  and  obtained  much  experience,  he 
had  to  work  at  night  to  prepare  for  examina- 
tion before  the  Supreme  Court.  He  was  ad- 
mitted to  practice  in  1896,  and  immediately 
thereafter  became  associated  with  Joseph  H. 
Moore,  of  the  old  law  firm  of  E.  J.  &  J.  H. 
Moore  one  of  the  oldest  and  best  established 
firms  of  San  Francisco.  He  remained  with 
Mr.  Moore  until  the  latter's  death,  on  Feb- 
ruary 8,  1899,  and  took  over  his  offices  and 
practice,  which  consisted  principally  of  pro- 
bate and  land  title  matters.  Mr.  Robinson  has 
continued  with  success  in  the  same  branches 
ever  since,  and  is  now  enjoying  a  lucrative 
practice.  It  will  be  seen  that  he  owes  his 
success  entirely  to  his  own  efforts. 

E.  M.  REA. 

Mr.  Rea,  of  the  San  Jose  law  firm  of  Cobb 
&  Rea.  was  born  at  Eureka,  California,  Jan- 
uary 23,  1874.  He  was  graduated  from  Leland 
Stanford  University  in  1895,  with  the  degree 
of  Bachelor  of  Arts,  and  from  the  law  depart- 
ment of  Harvard  University  in  1898,  as  LL.  B. 
He  was  admitted   to   the  bar   of  the   Supreme 


Court  of  California,  September  8,  1898,  and 
has  since  been  practicing  at  San  Jose,  in  asso- 
ciation with  C.  W.  Cobb,  with  offices  in  the 
Rea  Building.  A  sketch  of  Mr.  Cobb  is  on 
another  page.  This  is  a  strong  and  active 
firm,  conducting  a  most  profitable  business,  and 
in  high  favor  with  the  bar  and  the  people. 

GEO.   T.    ROLLEY. 

George  T.  Rolley  was  born  in  Morris,  Grun- 
dy county,  Illinois,  on  the  5th  of  February, 
1874.  At  an  early  age  his  parents  moved  to 
Fortuna,    California,    where    he    received    his 


education.  He  studied  law  with  Hon.  J.  N. 
Gillett  and  was  admitted  to  practice  before 
the  Supreme  Court  of  California  in  June, 
1895.  He  is  a  member  of  several  fraternal 
orders. 

Mr.  Rolley  is  a  Republican,  is  very  em- 
phatic in  his  expressions  on  expansion,  the 
holding  of  the  Philippines,  and  believes  the 
United  States  should  have  the  finest  navy 
afloat. 


He  was  prominently  mentioned  as  a  candi- 
date for  State  senator  for  the  first  senatorial 
district   in    1900. 

He  was  appointed  attorney  for  the  public 
administrator  of  Humboldt  county  in  January, 
1899,  and  still  holds  the  position.  His  home 
and  office  are  at  Eureka,  California. 

There  are  few  young  men  more  worthy 
of  confidence  or  more  capable,  and  he  has  a 
good  clientage. 

A.  RUEF. 

This  gentleman,  at  the  age  of  thirty-six 
years,   is  experienced  and  mature  at  the  bar. 


His  father,  Meyer  Ruef,  is  a  prosperous  citi- 
izen  of  San  Francisco,  now  little  past  life's 
prime,  and  actively  engaged  in  business  in  the 


Edgar  D.   Teixotlo 


History  of  the  Bench  and  Bar  of  California. 


1067 


line  uf  real  estate.  He  gave  his  son  a  first- 
class  education  and  saw  him  press  his  way, 
now  a  good  many  years  ago,  to  a  front  place 
in  his  profession  and  also  in  the  councils  of 
the   Republican   party. 

Abraham  Ruef  was  born  in  San  Francisco 
on  September  2nd,  1864,  and  has  always  lived 
in  that  city.  He  was  graduated  from  the 
University  of  California,  academic  depart- 
ment in  May,  1883,  and  from  the  law  depart- 
ment, Hastings  College  of  the  Law,  in  1886. 
He  has  an  extensive  general  practice,  and  has 
been  connected  with  some  of  the  most  notable 
cases  tried  in  our  great  city  in  recent  years. 
In  1899  he  was  attorney  for  the  public  admin- 
istrator. Mr.  Ruef  speaks  fluently  several 
languages.  His  addresses  to  court  and  jury 
are  sincere,  spirited  and  demonstrative,  and 
are  always  well  received. 

He  has  acquired  by  his  law  practice  a  fine 
estate.  He  has  always  been  "in  politics,"  and 
with  his  professional  and  party  engagements, 
he  is  one  of  the  busiest  of  men. 


EDGAR  D.  PEIXOTTO. 

Mr.  Peixotto  was  born  in  New  York  on 
December  23,  1867,  and,  although  he  is,  at  the 
close  of  1900,  only  thirty-three  years  of  age, 
he  has  been  for  seven  or  eight  years  past 
much  in  public  view  by  reason  of  his  connec- 
tion with  important  litigation,  his  able  conduct 
of  trials  and  his  general  ability  as  a  public 
speaker. 

Mr.  Peixotto  comes  of  a  distinguished  fam- 
ily that  easily  traces  its  ancestry  to  remote 
times.  The  connection  of  the  Peixotto  family 
with  America  dates  from  the  early  s^'tlement 
of  Rhode  Island,  in  the  latter  part  of  the  sev- 
enteenth century.  His  grandfather,  Dr.  D.  L. 
M.  Peixotto,  was  a  distinguished  New  York 
physician,  a  writer  of  ability,  and  dean  of  the 
faculty  of  medicine  of  Columbia  College.  His 
uncle,  Benjamin  F.  Peixotto,  was  an  eminent 
lawyer,  at  one  time  associated  with  Stephen 
A.  Douglas,  practiced  for  a  short  time  in  San 
Francisco,  and  became  distinguished  in  the 
diplomatic  service  of  the  United  States,  oc- 
cupying the  positions  of  minister  to  Roumania, 
under  President  (jrant.  and  consul  at  Lyons, 
under  President  Hayes.  Mr.  Peixotto's  fa- 
ther, Raphael  Peixotto,  holds  a  high  and  re- 
spected position  in  the  San  Francisco  com- 
munity, and  is  a  successful  merchant.  His 
brother,  Ernest  C.  Peixotto,  is  the  artist  and 
writer  whose  work  is  so  well  known  to  the 
readers  of  Scribners,  and  another  brother, 
Sidney  S.  Peixotto,  has  an  enviable  reputation 
through  his  connection  with  i)liilanthropic 
work  among  the  Boys'  Clul)s  of  San  Fran- 
cisco. His  sister,  Jessica  B.  Peixotto.  has  the 
distinction  of  being  the  second  woman  to  re- 
ceive the  degree  of  Doctor  of  Philosophy  in 
the  University  of  California. 

Mr.  Peixotto  was  educated  in  the  public 
schools  of  San  Francisco,  was  graduated  from 
Hastings  College  of  the  Law  in  June,  1888, 
and  admitted  to  the  bar  of  the  State  Supreme 
Court   in  January,   1889. 

After  his  admission  he  spent  a  year  in  travel 


in  the  United  States  and  Europe,  and  then 
began  practice  at  San  Francisco.  In  Decem- 
ber, 1893,  he  became  assistant  district  attor- 
ney of  San  Francisco,  and  had  a  distinguished 
part  in  the  administration  of  the  afifairs  of  that 
office  in  a  most  eventful  period  of  its  long  his- 
tory, iiis  principal  was  Hon.  W.  S.  Barnes, 
who  held  the  office  for  three  terms.  Mr.  Peix- 
otto conducted  the  prosecution  of  Patrick  Col- 
lins, who  was  convicted  of  murder  and  hanged. 
He  conducted  the  first  trial  of  Jane  Shattuck, 
who  was  convicted  of  murder  and  sentenced 
to  life  imprisonment,  but  who  was  granted  a 
new  trial  by  the  Supreme  Court. 

Mr.  Jr*eixotto  was  Mr.  Barnes'  only  assist- 
ant counsel  in  the  trial  of  William  Henry  The- 
odore Durrant,  for  murder,  in  the  summer 
of  1895  (the  crime  of  a  century),  and  made 
the  opening  address  to  the  jury  on  behalf 
of  the  people.  This  argument  is  an  excellent 
example  of  Mr.  Peixotto's  forcible  and  suc- 
cinct style.  In  1899  he  wrote  the  history  of 
that  case,  which  was  published  by  a  Detroit 
house.  The  work  is  well  illustrated  and  is  de- 
signed both  for  the  general  reader  and  for  the 
profession. 

Shortly  after  this  celebrated  trial,  Mr.  Peix- 
otto resigned  from  the  district  attorney's 
office,  and  has  since  been  fully  occupied  with 
his  private  practice,  having  a  fine  library  and 
elegant  offices  in  the  Claus  Sprcckels  Build- 
ing. In  1899,  when  the  terms  of  the  county 
officers  were  shortened  to  one  year,  on  ac- 
count of  the  adoption  of  a  new  city  charter, 
Mr.  Peixotto  was  attorney  for  the  sheriff, 
Henry  S.  Martin.  In  1896,  and  again  in  1900, 
he  was  a  delegate  to  the  National  Republican 
convention,  and  in  the  latter  year  he  was  sec- 
retary of  the  California  delegation,  and  ex- 
tended his  travels  to  Europe,  visiting  the  Ex- 
position at  Paris. 

Mr.  Peixotto  has  always  been  an  ardent 
Republican,  and  is  always  heard  on  the  stump 
in  the  various  campaigns.  He  is  a  prominent 
niinnber  of  the  Bohemian  and  other  clubs,  and 
of  several  fraternal  orders,  and  is  well  known 
and  a  favorite  as  a  platform  and  after-dinner 
speaker.     Mr.  Peixotto  is  unmarried. 

EARL  ROGERS. 

Anyone  who  has  taken  notice  of  the  princi- 
pal- criminal  cases  in  Los  Angeles  county  dur- 
ing the  last  four  years,  but  is  at  the  same  time 
not  personally  acquainted  with  Earl  Rogers, 
will  be  surprised  to  learn  that  he  is  a  man  so 
young  in  years  as  here  portrayed,  for  his  name 
lias  appeared  in  cnnncctiou  with  almost  every 
important  criminal  case  in  tliiil  county  during 
this  period. 

Such  is  the  case ;  Earl  Rogers,  thirty-two 
years  of  age,  stands  today  easily  in  the  first 
rank  of  his  profession  in  the  criminal  courts 
of  Southern  California.  His  is  a  unique  and 
interesting  personality,  and  his  methods  -of 
handling  a  case  differ  widely  from  those  used 
by  the  ordinary  criminal  lawyer.  It  might 
truly  be  said  that  at  the  present  time  he  stands 
in  a  class  alone,  not  only  in  his  skill  in  this 
respect,    but    also   in    the    number   of  big  crim- 


1068 


History  of  the  Bench  and  Bar  of  California. 


inal  cases  he  has  had  and  has  fought  to  a  suc- 
cessful termination. 

In  the  last  three  years  Mr.  Rogers  has  de 
fended  more  than  one  hundred  felony  cases 
in  the  courts  of  this  State ;  and  from  this 
large  number  there  is  only  one  of  these  de- 
fendants who  has  ever  passed  behind  the  doors' 
of  the  State  prison ;  a  record  that  probably 
cannot  be  equaled  in  this  or  any  other  state. 
It  will  readily  be  presumed,  however,  and  cor- 
rectly so,  that  he  does  not  undertake  the  de- 
fense of  every  case  that  is  presented  to  him. 
Unless  he  believes  that  there  is,  as  he  terms 
it,  "a  fighting  chance  to  win,"  he  invariably 
refuses  to  take  the  case,  but  once  in,  "he  fights 
from  the  drop  of  the  hat,  and  clever  indeed 
must   be   the   prosecuting  attorney   who  gains 


even  a  temporary  advantage.  Every  step  is 
fought  with  unyielding  determination,  and 
with  every  weapon  to  be  found  in  the  arsenal 
of  the  criminal  law.  Earl  Rogers  is  a  born 
fighter,  and   was  never  known  to  quit. 

In  addition  to  having  the  leading  criminal 
business  of  Los  Angeles  county,  he  has  a  large 
amount  of  civil  business,  to  which  he  attends 
with  the  same  care  and  diligence  that  he  gives 
to  his  criminal  cases. 

One  of  the  contributing  causes  to  his  great 
success  is  the  fact  that  he  never  goes  to  trial 
without  the  most  thorough  preparation,  both 
on  the  law  and  the  facts.  It  is  rarely  ever 
that  the  opposing  counsel  is  able  to  give  him 
a  surprise  in  any  step  in  the  case. 

Although  born  in  the  state  of  New  York, 
Mr.  Rogers  has  lived  in  California  practi- 
cally all  the  time  since  lie  was  four  years  old. 
taking  out  the  years  when  he  was  completing 
his  cfassical  education  at  Syracuse  University, 
New  York. 

At  the  age  of  twenty-four  he  l)egan  the  study 
of  law  in  the  office  of  the  late  Judge  W.   P. 


(Gardiner  of  Los  Angeles,  and  was  admitted 
to  tlie  l)ar  of  the  Supreme  Court  in  Oc'ober, 
1894.  He  began  the  active  practice  of  law 
for  himself  about  one  year  later.  For  more 
than  two  years  he  worked  and  struggled  as 
almost  every  young  lawyer  must,  but  at  last 
his  opportunity  came,  and  when  it  came  it 
found  mm  ready  for  it.  That  was  the  Black- 
man  embezzlement  case,  the  most  noted  of  its 
kind  in  recent  years.  In  this  case  Mr.  Rogers 
rose  almost  in  a  single  day  from  the  plane  of 
a  comparatively  unknown  young  lawyer  to  a 
commanding  position  at  the  California  bar.  a 
position  he  has  ever  since  held.  After  the 
Blackman  case,  one  criminal  case  after  an- 
other was  brought  to  him,  until  without  any 
original  intention  or  desire  on  his  part,  but 
really  against  his  purpose,  he  has  been  al- 
most compelled  to  follow  the  criminal  branch 
of  the  practice  to  a  much  greater  extent  than 
he  has  wished,  and  while  he  has  not  permitted 
this  work  to  encroach  upon  his  civil  practice, 
it  has  been  necessary  for  him  to  devote  him- 
self more  closely  to  his  profession  than  most 
attorneys   find  agreeable. 

Among  the  many  cases  in  which  Mr.  Rogers 
has  been  engaged  may  be  especially  mentioned 
the  Alford,  Crandall,  Chaudfosse,  Teresa 
Kerr,  Mootry,  Watson,  Murray,  Yglesias  and 
Barboza  cases,  all  murder  cases  of  much  pub- 
lic interest.  Perhaps  the  most  remarkable  se- 
ries of  cases  ever  tried  in  the  courts  of  Los 
Angeles  county  were  those  known  generally 
as  the  Watson  cases,  from  the  name  of  Walter 
Watson,  the  chief  defendant,  and  the  one 
whom  the  police  authorities  tried  hardest  to 
convict.  The  history  of  these  cases  is  fresh 
in  the  public  mind.  A  very  carnival  of  crime 
seemed  to  prevail  in  Los  Angeles  city.  In  the 
short  course  of  three  months  over  forty  hold- 
ups and  three  murders  from  attempted  hold- 
ups had  occurred.  All  the  efforts  of  the  po- 
lice to  detect  the  perpetrators  were  fruitless. 
At  last  a  young  and  industrious  boilermaker 
named  Walter  Watson,  and  a  number  of  his 
associates  and  friends  were  selected  by  the 
police  as  the  parties  upon  whom  the  crimes 
wore  to  be  fastened.  Every  artifice  known  to 
the  police  department  was  made  use  of  to 
convict  Watson.  He  was  tried  on  three  sep- 
arate charges,  two  for  highway  robbery  and 
one  for  murder,  and  was  triumphantly  ac- 
quitted of  all,  in  no  case  the  jury  being  out 
more  than  ten  minutes  before  returning  a  ver- 
dict of  "not  guilty."  It  may  be  said  in  pass- 
ing that  the  actual  criminals  have  never  been 
arrested. 

One  of  Mr.  Rogers'  strongest  (|ualitics  's  his 
readiness  in  the  actual  trial  of  a  case.  He  is 
quick  and  alert,  not  a  point  either  of  weak- 
ness in  the  case  of  his  opponent  or  of  strength 
in  his  own  escapes  his  immediate  detection. 
Mr.  Rogers  is  especially  strong  in  cross-ex- 
amination, in  which  his  methods  diffcf  mate- 
rially from  those  usuallj'  employed. 

If  it  be  true  that  "the  law  is  a  jealous  mis- 
tress,' but  showers  her  choicest  treasures  upon 
him  who  gives  himself  entirely  to  her,  then  the 
future  certainly  has  much  in  store  for  Earl 
Rogers. 


James  C.  Ri'ves 


History  of  the  Bench  and  Bar  of  California. 


1071 


JAMES  C.   RIVES. 

James  C.  Rives,  district  attorney  -of  Los  Ar\- 
geles  county,,  was  born  January  4,  1864,  near 
Atlanta,  Georgia,  while  Grant  and  Sherman 
were  planning  the  famous  "March  to  the  Sea." 
His  parents  remained  at  Atlanta  during  the 
seige  and  capture  of  the  city.  Shortly  after 
the  close  of  the  Civil  War  his  father  started 
overland  with  his  family  for  California,  trav- 
eling in  primitive  style,  with  ox  teams.  They 
remained  two  years  at  Sulphur  BlutT,  Te.xas, 
and  arrived  in  Los  Angeles  county,  California, 
in  i86g.  They  settled  in  what  is  known  as 
the  Los  Nietos  Valley,  which  lies  to  the  east 
of  Los  Angeles  city.  The  father,  Burrell  Ed- 
ward Rives,  was  one  of  the  pioneer  practi- 
tioners of  medicine  in  Los  Angeles  county. 

For  the  past  thirty-two  years  the  present 
district  attorney  has  resided  continuously  in 
that  county.  The  life  history  of  James  C. 
Rives  and  his  preparation  for  his  profession 
savors  of  the  old,  rather  than  the  new,  sys- 
tem. He  is  distinctly  a  self-made  man.  He 
was  forced  to  abandon  his  schooling  and 
studies  at  the  early  age  of  fourteen  years.  He 
had  never  attended  anything  but  a  public 
school.  He  had  no  opportunity  to  acquire  a 
college  education.  From  his  father's  side  he 
inherits  the  blood  of  one  of  Virginia's  best 
families,  and  from  his  mother's  side  that  of 
the  family  to  which  Alexander  H.  Stephens 
belonged.  This  was  his  only  inheritance.  After 
the  death  of  his  father,  he  being  then  fourteen 
years  of  age,  he  was  compelled  to  abandon 
school,  and  turned  his  attention  to  the  printer's 
trade  as  a  means  of  livelihood  for  himself, 
his  mother,  and  two  younger  children.  With 
his  wages  he  supported  himself  and  the  family. 
At  the  age  of  sixteen  he  started  in  the  print- 
ing business  on  his  own  account,  and  before 
he  had  reached  his  majority  he  was  the  pub- 
lisher and  proprietor  of  a  weekly  paper,  at 
Downey,  called  the  Dozviiey  IVeclcly  Rcviciv, 
which  he  continued  to  publish  with  profit.  Dur- 
ing the  years  he  was  engaged  in  the  printing 
business  he  took  up  the  study  of  law,  and  in 
the  year  1887  'le  entered  upon  the  practice. 
As  an  attorney  he  has  achieved  great  success, 
and  up  to  the  present  time  he  has  practiced 
with  good  fortune,  both  from  financial  as  well 
as  other  points  of  view.  Like  many  other  pro- 
fessional men,  he  takes  great  pride  in  fruit 
growing  and  farming,  and  is  the  possessor  of 
a  fine  eighty-acre  ranch  located  near  the  town 
of  Downey,  which  he  manages  very  profitably. 
He  has  always  been  an  active,  consistent  and 
energetic  member  of  the  Republican  party,  and 
his  efforts  in  its  behalf  have  greatly  aided  in 
its  many  victorious  campaigns  in  California. 
He  is  an  able  speaker,  and  has  taken  the  stump 
in  every  political  contest  of  the  past  fifteen 
years,  as  well  as  being  a  ceaseless  worker 
along  other  lines  in  his  party's  behalf.  In 
1808  he  was  nominated  by  a  vote  of  two  to  one 
over  three  strong  competitors,  for  the  office  of 
district  attorney  of  Los  Angeles  county.  This 
nomination  was  followed  by  an  animated  cam- 
paign, and  he  was  elected  by  one  of  the  largest 
majorities  ever  given  any  candidate  for  office 
in  his  county. 


His  tall  and  angular  form,  sharp  features, 
keen  perception  of  human  nature,  his  knowl- 
edge of  men  and  his  humor,  and  his  well- 
known  history  have  won  for  him  the  title  of 
"the  Abraham  Lincoln  of  California."  In  his 
excellent  executive  ability  and  his  choice  of 
deputies,  in  his  scrupulous  integrity  and  wise 
administration  of  the  difficult  duties  of  his 
office,  he  has  still  further  justified  the  refer- 
ence to  the  honored  statesman.  Mr.  Rives' 
management  of  the  civil  and  criminal  affairs  of 
the  largest  county  government  in  the  State  of 
California  has  given  great  satisfaction.  No 
breath  of  scandal  has  tainted  his  administra- 
tion. 

He  was  married  on  September  4,  1889,  to 
Miss  Mary  L.  Crowell  of  Downey.  The  union 
has  been  blessed  with  four  children,  three  boys 
and  one  girl. 

JOHN   SATTERWHITE. 

John  Satterwhite  is  one  of  the  successful 
young  lawyers  of  Los  Angeles,  California.  He 
was  born  in  San  Bernardino  county,  California, 
July  18,  1868.  His  father,  John  W.  Satter- 
white. was  a  prominent  lawyer  of  San  Ber- 
nardino, and  was  widely  known  in  Southern 
California,  and  throughout  the  State.  He  was 
a  member  of  the  assembly  from  San  Bernar- 
dino county  at  the  sessions  of  1865-66,  and 
1869-70.  and  was  State  senator  from  San 
Diego  and  San  Bernardino  counties  during  the 
years    1872   to    1880. 

John  Satterwhite  went  to  the  public  schools 
in  San  Bernardino,  and  afterwards  to  the  Oak- 
land High  School,  at  Oakland,  Alameda 
county,  California,  where  he  graduated.  He 
then  went  to  Hastings  Law  College  for  three 
years,  and  graduated  from  that  institution  in 
June,  1891.  After  he  graduated  he  returned 
to  San  Bernardino,  where  he  commenced  the 
practice  of  law  in  co-partnership  with  Colonel 
A.  B.  Paris.  After  two  years  he  moved  to 
Los  Angeles,  and  has  practiced  law  at  that 
place   ever    since. 

Since  locating  in  Los  Angeles  Mr.  Satter- 
white has  made  great  progress  in  his  profes- 
sion. He  is  regarded  by  the  bench  and  bar  of 
that  city  as  one  of  the  most  careful  and  safe 
attorneys  and  advisers.  He  has  conducted 
some  of  the  most  important  litigation  in  the 
State,  and  has  been  unusually  successful  in  all 
his  cases.  He  has  never  sought  office,  though 
he  takes  an  interest  in  politics,  and  has  at- 
tended, as  a  delegate,  many  of  the  conventions 
of  his  party.  He  is  popular,  and  possesses 
tlie  confidence  of  the  general  public,  and  is 
especially  esteemed  by  his  extensive  clientage. 

Mr.  Satterwhite  is  a  close  reasoner.  and  pos- 
sesses a  strong,  well-trained,  judicial  mind, 
and  though  yet  a  young  man,  many  prominent 
business  men  of  Los  Angeles  show  their  con- 
fidence in  his  judgment  by  consulling  Iiim. 

lie  ni;irrie<l,  in  October,  lS()7.  and  lias  one 
cliild. 

SAMUEL  B.  RUSSELL. 
Samuel  B.  Russell  was  born  in  Leavenworth, 
Kansas,  on  the  27th  day  of  May,  1870,  and  is 
one  of  a  family  of  five  ciiildren.     His  parents 


1072 


History  of  the  BeucJi  and  Bar  of  California. 


emigrated  to  California  when  he  was  but  five 
years  of  age.  He  attended  the  public  schools 
in  the  country  districts  until,  at  the  age  of 
thirteen,  stern  necessity  compelled  him  to 
take  up  his  end  of  the  task,  and  assume  a  por- 
tion of  the  responsibility  of  providing  for  the 
welfare  of  those  who  were  near  and  dear  to 
him.  He  engaged  in  mechanical  pursuits,  and 
at  the  age  of  eighteen,  impelled  by  a  thirst 
for  knowledge  and  a  determination  to  improve 
his   condition,   went   to    San    Francisco,   where 


he  is  now  located.  Here  the  evening  schools 
and  accessible  libraries  claimed  his  attention 
when  working  hours  were  over.  Choosing  the 
law  as  a  profession,  he  studied  and  has  been 
admitted  to  practice  by  the  Supreme  Court  of 
the  State  of  California.  He  is  a  member  of 
the  Independent  Order  of  Odd  Fellows,  the 
Improved  Order  of  Red  Men,  and  the  Royal 
Arcanum.  He  has  the  virtues  of  honesty, 
fidelity  and  candor,  and  is  enjoying  success  in 
the  law.  

JAMES  G.  SCARBOROUGH. 

Mr.  Scarborough  was  born  in  Louisiana,  in 
1862.  His  father,  who  was  a  planter,  moved  to 
Texas  in  1868,  taking  with  him  his  son,  who 
was  educated  at  Baylor  University,  at  Waco, 
Texas,  and  was  finally  graduated  at  Howard 
College,  Marion,  Ala.  Mr.  Scarborough  was 
valedictorian,  taking  first  honors  in  a  class  of 
eighty-three.  He  commenced  reading  law  at 
Waco,  Texas,  in  the  office  of  Anderson  & 
Flint.  He  was  admitted  to  practice  by  the 
Supreme  Court  of  Texas  in  February,  1885. 
He  immediately  came  to  California,  settling  at 
Los  Angeles,  and  beginning  the  practice  of  law 
at  that  place.  After  some  years,  he  removed  to 
Santa  Ana,  Orange  county,  where  he  passed 
an  active  period  of  his  life,  covering  six  years. 
He  was  the  attorney  for  the  Santa  Ana  and 
Newport  Railway  Company,  and  other  corpora- 
tions, and  served  a  term  as  district  attorney 
of  Orange  county.  Returning  to  Los  Angeles, 
he  has  since  resided  and  practiced  there,  be- 
ing always  one  of  the  busiest  men  at  the  bar. 
His  clients  are  principally  corporations. 


Mr.  Scarborough  is  married,  and  has  one 
child.  He  is  prominent  in  the  Knights  of  Py- 
thias, being  colonel  of  the  Uniform  Rank.  He 
commanded  the  company  that  \vent  to  Detroit 
to  the  national  encampment,  and  which  won 
the  first  prize  for  drill.  On  that  occasion  Col- 
onel Scarborough  was  awarded  the  medal  for 
the  best   commanding  officer. 


OWEN  D.  RICHARDSON. 

Owen  D.  Richardson  was  born  in  Evansville, 
Indiana.  December  18.  1868.  He  was  grad 
uated  at  the  University  of  Indiana  in  189^1. 
with  the  degree  of  A.  B..  and,  coming  to  Cali- 
fornia in  that  year,  was  awarded  the  degree 
of  A.  M.  at  Leland  Stanford  Junior  Univer- 
sity, in  1894.  The  following  two  years  he 
spent  at  the  law  schood  of  Cornell  University. 
Ithaca,  New  York,  graduating  in  1896.  with 
the  degree  of  LL.  B.  Returning  to  California 
in  the  same  year,  he  entered  upon  the  practice 
of  law  in  San  Jose,  where  he  has  since  resided. 


He  was  a  candidate  for  the  assembly  in  1898, 
on  the  Democratic  ticket,  from  the  Fifty-fifth 
assembly  district,  but  was  defeated,  although 
he  received  more  than  his  party  vote.  In  1900 
he  was  elected  city  justice  of  the  peace  of  the 
city  of  San  Jose  by  a  majority  of  800,  being 
the  only  Democratic  local  candidate  that  was 
successful.  He  is  a  popular  man,  and  ambi- 
tious. He  is  conducting  his  present  office  with 
ability  and  honor,  and  success  will  attend 
him  through  life. 


LAWRENCE    SCHILLIG 

Lawrence  Schillig  was  born  in  Sutter 
county,  California,  August  13,  1869,  and  grew 
up  to  manhood  in  that  county,  on  his  parents' 


Frank  H.  Short 


History  of  the  Bench  and  Bar  of  California. 


1075 


farm,  attending  the  public  schools  of  the  neigh- 
borhood. At  the  age  of  twenty  he  was 
graduated  from  Pierce  Christian  College,  with 
the  degree  of  B.  S.  In  the  fall  of  the  same 
year  (1889)  he  entered  Hastings'  College  of 
the  Law,  and  took  the  three  years'  course, 
graduating  in  June,  1892,  with  the  degree  of 
LL.  B.  Immediately  thereafter  he  was  admit- 
ted to  practice  by  the  Supreme  Court,  and 
has  ever  since  been  engaged  in  a  general  law 
practice  in  his  native  county,  with  his  office 
at  Yuba  City. 

Mr.  Schillig  was  elected  to  the  assembly  in 
November,  1900,  and  served  at  the  legislative 
session  of  1901,  being  one  of  the  most  active 
and   influential   members   of  that   body. 


FRANK  H.  SHORT. 


This  long-prominent  lawyer  of  Fresno, 
known  all  over  the  State,  was  born  in  Shelby 
county,  Missouri,  on  September  12,  1862.  He 
did  not  take  any  university  or  law  school 
course,  but  prepared  for  the  profession  in  the 
law  office  of  his  uncle,  the  Hon.  J.  F.  Whar- 
ton, who  was  practicing  law  in  Fresno.  In 
1887  he  was  admitted  to  practice  in  Fresno, 
and  in  1889  was  admitted  in  the  Supreme 
Court,  and  later  in  the  Federal  courts. 

Mr.  Short  has  enjoyed  a  very  good  prac- 
tice, and  especially  for  the  last  seven  or  eight 
years.  When  still  young  at  the  bar  he  was  in 
most  of  the  important  criminal  cases  tried  in 
Fresno  county.  Among  the  more  notable  were 
those  of  the  people  against  J.  D.  Smith  for  the 
killing  of  Percy  Williams.  He  was  associated 
with  Grove  L.  Johnson  in  the  prosecution  of 
the  case  of  the  People  against  Richard  Heath 
for  the  killing  of  L.  B.  McWhirter.  He  also 
defended  Prof.  William  A.  Sanders,  charged 
with  forgery,  and  accused  of  murdering  Wil- 
liam Wootton.  The  case  of  forgery  was  tried 
four  times,  the  first  trial  resulting  in  a  dis- 
agreement ;  the  second  in  a  conviction,  and  in 
an  appeal  to  the  Supreme  Court,  where  the 
conviction  was  reversed.  This  case  is  re- 
I)orted  in  114  California,  page  216,  and  is  one 
of  the  most  extraordinary  cases  in  the  books. 
After  its  reversal  in  the  Supreme  Court,  the 
case  was  retried,  and  the  jury  again  disa- 
greed; upon  the  fourth  trial,  Judge  Carroll 
Cook  of  San  Francisco,  presiding,  the  defend- 
ant was  convicted,  and  from  this  conviction 
no  appeal  was  taken  :  it  not  being  thought  pos- 
sible without  the  reappearance  of  William 
Wootton  or  the  appearance  of  the  alleged 
John  Knausch  and  Mr.  Graves,  that  the  case 
could  be  successfully  tried.  Neither  Wootton 
nor  Graves  nor  Knausch  has  ever  been  heard 
from,  and  the  case  remains  a  profound  mys- 
tery, the  evidence  being  circumstantial  as  to 
the  killing  of  Wootton  by  Sanders. 

More  recently,  Mr.  Short  has  been  connected 
with  other  litigalion  representing  the  Fresno 
Canal  and  Irrigation  Company,  Miller  and 
Lux  and  other  large  irrigators  in  the  San 
Joaquin  Valley.  He  has  been  engaged  in  a 
considerable  number  of  cases  involving  tlv- 
right  to  water  Tor  irrigation  purposes,  and  in 


the  case  of  the  Fresno  Canal  and  I'rrigation 
Company  against  Park,  wherein  the  Supreme 
Court  has  recently  decided  that  water  right 
contracts  for  a  given  price,  conveying  the  right 
for  a  definite  period,  were  constitutional  and 
valid.  The  defendants  contended  under  the 
law  that  the  constitution  prohibited  such  con- 
tracts, and  required  all  rates  to  be  fixed  by 
the  boards  of  supervisors.  Mr.  Short  was  as- 
sociated with  Judge  John  Garber  in  sustaining 
the  validity  of  the  contracts.  The  case  was 
considered  one  of  very  great  importance,  and 
some  five  or  six  briefs  were  filed  by  promi- 
nent attorneys  throughout  the  State,  appear- 
ing amicus  curiae  most  of  them  on  behalf  of 
the  contention  of  the  defendants.  Mr.  Short 
is  also  at  present  associated  with  the  attorney- 
general  in  prosecuting  the  case  against  the 
Southern  Pacific  Company  for  raising  its  rates 
without  the  permission  of  the  board  of  rail- 
road commissioners,  when  it  had  reduced  them 
throughout  the  southern  part  of  the  State  to 
meet  the  competition  of  the  San  Francisco  and 
San  Joaquin  Valley  Railroad.  In  this  case 
before  the  railroad  commissioners,  the  con- 
tention of  the  railroad  company  was  over- 
ruled, and  it  was  ordered  to  restore  the  re- 
duced rates.  Before  Judge  Bahrs  in  San 
Francisco  this  order  was  affirmed  and  the  rail- 
road company  enjoined  from  violating  the 
order  of  the  commission.  The  railroad  com- 
pany appealed  to  the  Supreme  Court  and  the 
matter  has  been  there  very  recently  submitted 
for  final  decision.  The  matter  is  of  the  greatest 
public  importance,  involving  the  question  of 
the  jurisdiction  of  the  railroad  commission  and 
their  right  to  hear  a  final  determination  of 
matters  between  the  public  and  the  railroad 
company  touching  its  public  duties. 

Mr.  Short  has  also  recently  been  engaged 
in  the  litigation  between  mineral  locators  and 
the  scrippers  concerning  title  to  petroleum 
lands,  and  is  representing  the  mineral  locators 
before  the  Interior  Department  and  in  the 
Federal  courts.  The  litigation  involves  prop- 
erty of  the  value  of  many  millions  of  dollars, 
and  thus  far  the  mineral  locators  have  been 
successful. 

Mr.  Short  was  a  delegate  to  the  Republican 
National  convention  in  1896.  He  has  attended 
many  State  conventions,  and  done  nnich  cam- 
l)aign  work  for  the  Republican  party.  He 
married  in  Fresno,  at  the  age  of  twenty-four, 
his  first  wife  having  died  some  years  ago. 
He  married  his  present  wife  in  1897.  and  has 
two  children.  His  wife's  maiden  name  was 
Nellie  Curtis,  and  she  is  a  sister  of  J.  W. 
Curtis,  a  well-known  attorney  of  San  Bernar- 
dino, and  is  a  niece  of  William  S.  Ilolman. 
for  forty  years  a  member  of  congress  from  In- 
diana.    

P.  L.  SCHLOTTERBACK. 

1'.  L.  Schlotterback  was  Imrn  at  Ligonier 
Noble  county,  Indiana,  October  14,  1864,  w-hile 
his  father  was  in  active  service  with  the  LTnion 
army.  When  the  war  was  over  the  father 
returned,  and  the  family  remained  on  the  farm 
until    1879.    when    they    moved    into    Western 


1076 


History  of  the  Bench  and  Bar  of  California. 


Texas.  A  few  months  later  unfortunate  busi- 
ness transactions  resulted  in  the  loss  to  the 
father  of  all  his  property.  Then,  at  the  age 
of  fifteen,  Mr.  Schlotterback  was  thrown  upon 
his  own  resources,  not  only  maintaining  him- 
self, but  assisting  in  the  support  of  his  family 
also.  In  1881  he  became  an  apprentice  in  phar- 
macj%  in  which  he  was  rapidly  promoted  until 
he  stood  at  the  head  of  his  profession.  After 
continuing  in  the  practice  of  pharmacy  for  a 
few  years,  he  successfully  engaged  in  land 
speculation  in  Western  Texas.  In  1883  he 
came  to  California  on  a  pleasure  trip,  on  a 
return  ticket,  the  return  part  of  which  he 
never  used.  Arriving  in  Santa  Rosa  he  again 
engaged  in  the  practice  of  pharmacy,  devoting 
his  spare  time  to  the  reading  of  law.  In  1898 
Mr.  Schlotterback  creditably  passed  the  exam- 
inations for  admission  to  practice  before  the 
Supreme  Court  of  California.  He  soon  en- 
gaged in  the  practice  of  law  in  Santa  Rosa  by 
becoming  a  member  of  the  firm  of  Schlotter- 
back &  Lea.  of  which  firm  he  is  still  a 
partner. 

HENRY  C.  SCHAERTZER. 

Henry  C.  Schaertzer  was  born  in  San  Fran- 
cisco, May  3,  1869.  and  was  educated  in  the 
common  schools  of  that  city.  He  attended 
the  lectures  at  Hastings  College  of  the  Law 
for  two  years,  and  was  admitted  to  practice 
by  the  Supreme  Court  of  the  State  on  May 
5,  1900.  He  was  also  admitted  to  practice  in 
the  United  States  Circuit  Court  of  Appeals, 
the  United  States  Circuit  Court  and  the  thiited 
Stales   District   Court. 


Mr.  Schaertzer  devotes  his  time  exclusively 
to  his  profession,  and  has  not  held  a  public 
or  politic.Tl  office.  He  is  married,  and  has  two 
children.  He  is  at  present  local  counsel  for 
a  number  of  New  York  corporations,  and  prac- 
tices largely  in  the  United  States  courts.  He 
has  been  prominent  in  fraternal  organizations, 
but  at  present  has  little  time  to  devote  to  such 
afifairs. 


.      A.    E.    SHAW. 

A.  E.  Shaw  was  born  near  Sacramento 
city,  California,  on  July  31,  1867.  His  father, 
A.  D.  Shaw,  who  had  been  a  practicing  attor- 
ney in  the  East,  was  then  engaged  in  farm- 
ing. 

Mr.  Shaw's  boyhood  was  cast  in  Sacramento 
Monterey  and  Alameda  counties.  His  educa- 
tion was  received  in  the  public  schools  of 
Oakland.  He  was  graduated  from  the  Oak- 
land High  School,  and  in  1891  from  the  State 


iX 


<> 


University,  with  the  degree  of  A.  B.  He 
studied  law  in  the  office  of  Fox  &  Kellogg,  in 
San  Francisco,  and  was  admitted  to  the  bar 
by  the  State  Supreme  Court  in  July,  1892.  He 
has  practiced  in  San  Francisco  ever  since.  His 
only  partnership  was  in  1893-94.  with  Fred- 
eric R.   King,   son  of  Thomas   Starr  King. 

Mr.  Shaw  had  his  first  case  in  the  Supreme 
Court  of  the  United  States  in  August,  1895, 
when  he  was  twenty-eight  years  old. 


FREDERIC  \V.  STEARNS. 

Frederic  W.  Stearns  was  born  in  Chicago. 
Illinois,  December  6.  1867.  He  was  graduated 
from  the  University  of  Wisconsin  in  the  mod- 
ern classical  course  in  1889,  securing  the  B.  L. 
degree.  He  was  graduated  from  the  law  de- 
partment of  the  same  university  in  1891,  tak- 
ing the  full  course,  and  also  working  in  the 
office  of  one  of  the  leading  lawyers  of  the 
State  while  attending  the  law  school.  He  lo- 
cated in  San  Diego,  California,  in  the  spring 
of  1892.  In  1894  he  entered  into  partnership 
with  James  E.  Wadham.  under  the  firm  name 
of  Wadham  &  Stearns.  This  partnership  con- 
tinued   until    1898. 

In  1899  the  firm  of  Stearns  &  Sweet,  con- 
sisting of  Frederic  W.  Stearns  and  A.  H. 
Sweet  was  established.  It  has  been  connected 
with  most  of  the  irrigation  district  litigation 
in  San  Diego  county,  representing  the  bond- 
holders of  the  Escondido.  Linda  Vista  and 
Jamacha  irrigation  districts.  The  firm  rep- 
resented  such  bondholders  in   the  case  of  the 


Samuel  M.  Shortridge 


History  of  the  Bench  and  Bar  of  California. 


1079 


People  vs.  Linda  Vista  Irrigation  District,  one 
of  the  most  important  irrigation  district  cases, 
being  an  action  of  quo  warranto  brought  by 
the  people  of  the  State  of  California  to  dis- 
solve the  district,  and  involving  the  validity 
and  effect  of  the  confirmation  proceedings  had 
under  the  act  of  the  legislature  passed  in  1889. 
The  case  was  decided  both  by  the  lower  court 
and  by  the  Supreme  Court  in  favor  of  the  dis- 
trict. The  firm  has  made  a  specialty  of  bond 
and  corporation  law. 


SAMUEL  M.  SHORTRIDGE. 

Mr.  Shortridge  has  been  at  the  bar  only 
fifteen  years,  but  it  seems  much  longer.  He 
became  prominent  very  soon  after  his  ad- 
mission, and  has  been  familiar  to  the  people 
of  the  State  for  a  greater  period  as  an  elo- 
quent public  speaker. 

He  was  born  in  Mt.  Pleasant,  Henry  county, 
Iowa,  on  the  3rd  of  August,  1861.  His  re- 
mote ancestors  lived  in  Scotland  and  the  north 
of  Ireland.  Some  four  generations  back,  the 
family  was  established  in  Kentucky,  where  it 
produced  several  great  lawyers  and  preach- 
ers. Mr.  Shortridge's  father,  Elias  W.  Short- 
ridge, was  born  in  Indiana,  his  mother  also. 
The  father  prepared  himself  for  the  bar  in 
company  with  Oliver  P.  Morton,  but,  without 
entering  upon  the  profession,  turned  to  the 
pulpit,  and  became  a  clergyman  of  the  "Chris- 
tian denomination,  in  which  President  Gar- 
field was  prominent.  He  was  a  man  of  deep 
and  cultured  mind. 

In  Kentucky,  the  ShortridgeS,  like  the  fam- 
ily of  Abraham  Lincoln,  intermarried  with  the 
family  of  Daniel  Boone.  The  branch  that  went 
south  adorned  the  history  of  Alabama  with 
distinguished  names.  As  late  as  the  year 
1855  the  strong  mentality  of  the  race  was  ex- 
emplified in  Hon.  George  D.  Shortridge,  a 
man  of  great  learning,  and  one  of  the  Circuit 
Judges  of  that  State.  But  the  most  command- 
ing name  in  this  branch  of  the  family  was 
that  of  Eli  Shortridge,  father  of  George  D. 
Eli  Shortridge  was  also  a  Circuit  Judge  in 
Alabama,  but  had  won  an  enviable  reputation 
as  a  lawyer  and  orator  in  Kentucky,  where  he 
was  born.  In  a  volume  on  the  noted  men  of 
Alabama,  written  by  Hon.  William  Garrett, 
who  had  been  secretary  of  state,  is  a  very 
entertaining  notice  of  Eli  Shortridge.  Mr. 
Garrett   says : 

"His  addresses  to  the  jury,  while  at  the  l)ar 
as  an  advocate,  were  models  of  beauty  and  elo- 
quence, so  pronounced  by  comjietent  men  who 
have  heard  him.  He  had  a  peculiar  softness 
and  cunhony  in  his  voice  which  exerted  a 
charm  on  the  listeners.  Nothing  could  be 
more  captivatinsr.  It  was  like  the  tones  of 
a  parlor  organ,  rich  in  melod}'  and  gushing 
out  in  a  perpetual  concord  of  sweet  snnnds. 

"His  style  was  not  less  beautiful  in  i)nril\ 
of  diction,  and  it  seemed  as  if  Ik-  alw.ivs  lu'Id 
a  check  on  himself,  as  if  to  curb  ;i  vivid  ini 
agination.  There  were  occasions.  liDwcvcr. 
when  he  soared  beyond  his  restraint  ihdugli 
never  to  the  height  of  his  capacity." 

Mr.  Shortridge's  father  removed  witli  lii^ 
whole    family    to    Oregon    in    the    year    1874. 


and  came  with  them  to  California  in  1876,  set- 
tling at  San  Jose.  At  that  place  Samuel  grad- 
uated from  the  High  School  in  1879,  deliver- 
ing, at  the  graduation  exercises,  the  valedic- 
torv  address.  Subsequently  he  received  a 
first-grade  State  certificate,  and  went  to  Napa 
county,  where  he  taught  school  for  four  years, 
a'c  ditferent  places. 

During  this  period  of  Mr.  Shortridge's  ca- 
reei  his  great  mental  activity  was  evidenced 
by  lectures  to  his  schools  on  instructive 
themes,  and  by  public  addresses  and  contribu- 
tions to  the  press  on  questions  of  popular  con- 
cern. 

His  experience  as  a  teacher  and  principal 
in  the  public  schools  confirmed  the  high  esti- 
mate he  had  been  taught  to  place  upon  our 
common  school  system. 

After  coming  to  this  State  and  before  go- 
ing to  school  at  San  Jose,  young  Shortridge 
and  his  brother,  Charles  M.,  worked  for  some 
time  as  conmion  miners,  in  the  mines  of  Ne- 
vada county.  Samuel  had  the  law  for  his 
goal,  and  he  kept  his  eyes  fixed  there  through 
a  boyhood  and  early  manhood  of  toil.  His 
opportunity  came  in  the  year  1883.  He  was 
twenty-two.  Having  read  law  books  with  in- 
creasing interest  in  rare  moments  of  leisure, 
he  resigned  his  position  as  principal  of  the 
public  schools  of  St.  Helena,  Napa  county, 
and  moving  to  San  Francisco,  now  began  the 
study   with    system   and   devotion. 

He  was  admitted  to  practice  by  the  Supreme 
Court   in  the   month   of   May,   1885. 

It  was  in  the  presidential  campaign  of  1884 
that  he  became  known  to  the  people  of  the 
whole  State  as  an  orator,  while  canvassing 
in  the  support  of  James  G.   Blaine. 

The  comparatively  short  period  that  has 
elapsed  since  Mr.  Shortridge  came  to  the  bar, 
has  been  long  enough  to  realize  to  him  his 
boyhood  hopes.  He  has  displayed  high  aliility 
in  both  civil  and  criminal  departments  of  the 
practice.  His  commanding  form  is  sustained 
l)y  robust  physical  strength,  and  he  is  capable 
of  great  endurance,  both  of  mind  and  body. 
Flis  ambition  is  strong,  his  aims  are  high. 
He  has  an  enthusiastic  love  for  the  profession. 
And  his  zeal  is  not  that  ardor  of  mind  that 
burns  or  cools  with  circumstances,  but  has 
its  springs  in  a  healthy  intelligence.  He  has 
the  intellectual  ((ualities  that  are  masters  of 
victory. 

As  a  jmblic  speaker.  Mr.  Shortridge  is  earn- 
est, I)nt  not  excitable,  fervid  but  not  fiery. 
His  expression  is  careful,  his  gesture  graceful, 
with  a  connnanding  sweep  of  arm.  His  voice 
is  strong,  full  and  imfailing.  of  pleasing  qual- 
ity, and  thunders  or  softens  at  his  will. 

ITe  has  been  a  close  student  of  rhetoric. 
but  has  soiight  to  learn  oratory  and  acqtn're 
the  art  of  eloc|uencc  from  the  great  orig- 
inals— the  ]ierennial  fountains — Demosthenes, 
("icero  Burke.  Chatham.  Webster,  and  Clay, 
regarding  them  as  the  masters,  and  an  inti- 
ni,!te  ;'C(|uaintance  with  them  as  essential  to 
,1   kindred   excellence. 

Since  coming  to  the  bar  Mr.  Shortridge 
has  been  orator  of  the  day  on  many  historical 
cccasions.  His  Memorial  Day  orations  and 
Fom-tli     of     Tulv    addresses.     deli\-ered     in     the 


1080 


History  of  tJie  Bench  and  Bar  of  California. 


principal  cities  of  California,  have  been 
widely  circulated,  and  have  earned  for  him 
a  reputation  for  scholarship  and  eloquence 
which  may  ripen  into  fame. 

Born  and  reared  a  Republican,  he  has  ren- 
dered yeoman  service  to  his  party,  canvassing 
the  State  in  its  interest  in  nine  successive 
campaigns.  He  was  one  of  the  Republican 
presidential  electors  in  1888,  and  again  in 
1900.  In  the  latter  campaign  he  received  the 
largest  vote  on  his  ticket,  and  the  largest  ever 
cast  for  a  candidate  in  California,  and  was 
chosen  by  his  fellow-electors  to  carry  the  vote 
of  his  State  to  Washington.  The  address  de- 
livered by  Mr.  Shortridge  before  the  Repub- 
lican State  convention,  at  Santa  Cruz,  in 
September,  1900,  was  issued  as  a  campaign 
document  and  won  great  praise. 

Having  studied  Chinese  history,  the  Chinese 
race  and  characteristics,  he  early  opposed 
Chinese  immigration  on  the  broad  and  justi- 
fiable ground  of  self-preservation,  the  first  law 
of  nature,  applicable  alike  to  nations  and  to 
irdividuals.  He  elaborated  his  views  in  a 
speech  at  Metropolitan  Temple,  San  Francisco, 
in  1&87,  when  he  used  these  words: 

"A  total  abrogation  of  the  Chinese  treaty 
and  a  closing  of  our  doors  to  further  coming 
of  this  objectionable  race  are  the  only  effective 
n)elhods  of  grappling  with  this  great  and  dan- 
geious  evil.  The  State,  as  such,  is  powerless; 
the  nation  must  speak  and  act.  The  warfare 
of  Californians  against  the  Chinese  is  a  pa- 
triotic and  righteous  warfare,  justified  by  the 
principle  of  self-protection.  It  is  even  not  un- 
christian hatred  or  petty  spite  which  prompts 
them  to  act,  but  an  honest  conviction  that 
seeks  only  to  protect  the  interests  of  Amer- 
ican labor. 

"We  stand  here  today  as  the  Athenian  stood, 
threatened  by  the  advancing  hosts  of  Syria : 
as  the  Roman  stood,  menaced  by  Goth  and 
Vandal  of  the  north.  Around  and  about  us 
are  the  monuments  of  our  Christian  and  en- 
lightened civilization,  the  magnificent  results 
of  a  national  progress  unparalleled  in  the  his- 
tory of  man,  the  precious  and  inestimable 
blessing?  of  liberty  achieved  by  heroic  sacri- 
fice and  thus  far  treasured  and  preserved  by 
lofty  I'nd  self-denying  patriotism.  Shall  these 
blessing?  be  jeopardized  and  lost  forever? 
Shall  these  splendid  results  be  sacrificed, 
these  monuments  of  our  liberty,  our  industry, 
our  progress  be  ruthlessly  overturned?  Shall 
these  shrines  be  desecrated,  these  oracles  of 
freedom  hushed,  these  free  laborers  reduced 
to  bf^ggary"'  Tt  were  better  that  the  waves 
of  the  "ocean  overwhelm  and  swallow  us  up. 
it  were  better  that  Heaven's  lightning  smite 
and  wither  us  than  that  Chinese  slavery  should 
pollute  the  air  of  American  freedom." 


JAMES    ROBERT    TAPSCOTT. 

Mr.  Tapscott  was  born  on  September  9.  1865. 
near  Staunton.  Augusta  county.  State  of  Vir- 
ginia. His  narents  were  James  F.  Tapscott 
and  Isabella  J.  Tapscott.  They  were  both  cul- 
tivated and  refined  people,  whose  sterling 
traits  of  character  and  moral  worth  were  rec- 


ognized by  all  who  knew  them.  Their  chief 
pride  in  life  was  to  train  and  educate  their 
children  to  be  genuine  factors  for  good.  They 
spared  no  pains  nor  trouble  to  impress  upon 
them  the  importance  of  observing  the  Golden 
Rule.  They  were  both  conscientious  Chris- 
tians— practicing,  rather  than  preaching,  the 
doctrines  of  their  faith.  The  devoted  mother 
(there  have  been  many  such  in  this  dear  land) 
was  "devotion"  itself  to  her  children,  and 
they  in  turn  loved  her  with  an  affection  too 
genuine  to  be  hidden  ;  but  while  this  was  true, 
the  children  were  always  taught  to  "respect" 
her  as  well  as  their  father. 

General  Robert  D.  Lilley.  who  for  many 
years  after  the  Civil  War  was  connected 
with  Washington  and  Lee  University,  was  the 
brother  of  Mr.  fapscott's  mother,  and  he  was 
one  of  the  most  lovable  of  men.  On  one  oc- 
casion General  R.  E.  Lee  expressed  in  writ- 
ing his  estimate  of  General  Lilley's  character, 
and  he  said  : 


"I  take  pleasure  in  commending  him  to  all 
as  a  Christian  gentleman  and  brave  soldier. 
He  enjoys  the  confidence  of  those  who  have 
known  him  from  boyhood  and  has  the  ad- 
miration of  all  who  are  acquainted  with  his 
character  and  conduct  in  his  mature  years." 

Mr.  Tapscott  received  his  education  in  the 
Valley  of  Virginia,  where  he  was  raised,  and 
where  educational  facilities  were  at  that  time, 
and  are  now,  among  the  very  best  in  the  coun- 
try. 

When  he  finished  school,  although  pleasantly 
situated,  and  most  devoted  to  home  and  home 
influences,  he  felt  that  present  pleasures  must 
not  interfere  with  his  future  welfare  and 
prosperity,  and  when  an  opportunity  was  pre- 
sented to  him  to  try  his  fortune  amid  new 
scenes,  he  bid  an  affectionate  farewell  to 
mother  and  father,  and  his  "Uncle  Robert" 
(who  accompanied  him  to  the  train")  and  his 
boyhood  friends,  and  at  the  age  of  eighteen 
years,  crossed  the  continent  and  came  direct 
to  the  Golden  Sate.  The  first  winter  after  he 
arrived    here     he     spent     with     relatives     and 


History  of  the  Bench  and  Bar  of  California. 


1081 


friends  near  Colusa,  in  the  Sacramento  Val- 
ley, and  the  following  spring  he  went  to  Red 
Bliifif  where  he  at  once  entered  the  law  office 
of  Mesrs.  Chipman  and  Garter  (Gen.  N.  P. 
Chipman  and  Col.  Chas.  A.  Garter)  as  a  law 
student,  and  with  them  pursued  his  law  studies 
until  he  was  admitted  to  practice  law. 

During  the  month  of  May,  i88g,  he  accepted 
an  offer  to  enter  into  a  law  partnership  with 
Hon.  H.  B.  Gillis,  at  Yreka,  Siskiyou  county, 
California,  and"  immediately  thereafter  re- 
moved to  that  place  and  they  established  the 
law  firm  of  "Gillis  &  Tapscott,"  and  the  firm 
has  continued  in  existence  up  to  the  present 
time — over  eleven  years.  During  this  period 
the  i"irm  has  maintained  its  place  among  the 
leading  law  firms  in  the  northern  part  of  Cali- 
fonua.  and  has  enjoyed  a  very  extensive  and 
successful  practice.  Throughout  this  entire 
time  the  courts  of  that  section  of  the  State 
have  been  kept  busy  settling  the  various  com- 
plications which  constantly  arise  wherever  val- 
uable mining  properties  are  being  discovered 
and  developed,  and  this  litigation  has  not  been 
confined  to  the  local  courts,  but  the  most  im- 
portant part  of  it  has  invariably  found  its  way 
into  the  Supreme  Court,  and  not  infrequently 
into  the  United  States  Federal  Courts,  and  the 
Supreme  Court  reports  afford  abundant  evi- 
dence that  no  law  firm  in  that  part  of  the 
State  has  taken  a  more  a(?tive  part  in  this 
litigation,  or  been  more   successful  therein. 

In  order  to  keep  abreast  of  the  times  the 
firm  has  acquired  and  kept  up  one  of  the 
must  valuable  law  libraries  to  be  found  north 
of  Sacramento,  and  their  office  facilities  are 
in  keeping  with  their  practice. 

In  politics  Mr.  Tapscott  has  never  found 
any  satisfactory  reason  for  changing  those 
Jeffersonian  principles  which  he  inherited 
from  a   long  line   of  Old   Virginia   ancestors. 

Tl'ough  a  sincere,  an  avowed  and  active 
Democrat  and  for  several  years  secretary  of 
the  Democratic  Comity  Central  Committee 
of  Siskiyou  county,  and  once  elected  chairman 
of  tliat  committee,  he  has  never  allowed  him- 
self to  be  persuaded  into  aspiring  for  any 
office — though  often  advised  by  well-meaning 
friends  to  do  so.  He  has  usually  felt  that 
"office"  was  a  luxury  which  but  few  wcll-eslal)- 
lished  yoimg  business  men  could  afford. 

He  has  ])een  more  or  less  prominent  in  tiic 
Masonic  fraternity  for  the  past  ten  years, 
and  values  most  highly  the  honors  which  have 
been  bestowed  upon  him  in  that  connection. 

Mr.  Tanscott  was  most  happily  married  on 
October  i6th,  1889,  to  Miss  Katie  Merrill.  n[ 
Red  iiluff.  who  is  a  native  daughter  of  Cali- 
fornia. Tliey  have  two  very  bright  and  en- 
tertaining children  to  bring  sunshine  to  their 
delightful  mountain  home — Robert  Afcrrill 
Tapscott,  aged  seven  years,  and  Katliarine  Isa- 
bel 1  apscott,  aged  five  years.  Of  all  the  treas- 
ures this  rich  mountainous  gold-bearing  sec- 
tion possesses,  none  arc  so  valualile  as  these 
"Iiome  treasures."  and  it  would  be  hard  to 
find  anywhere  a  happier  bnnie  or  one  lliat 
enjoys  in  greater  measm-i.'  tlic  good  will  of 
the   community. 


ARTHUR  J.  THATCHER. 

Arthur  J.  Thatcher  was  born  at  Placerville, 
m  this  State,  in  1864.  In  1869  his  parents  re- 
moved to  Mendocino  county,  where  they  have 
ever  since  resided.  Mr.  Thatcher  entered  the 
State  University  at  Berkeley,  and  was  grad- 
uated therefrom  in  the  class  of  1887.  After 
graduation  he  went  to  the  Hawaiian  Islands, 
as  a  teacher  in  the  government  schools,  and 
while  there  married  Miss  Fannie  Low.  Re- 
turning to  Mendocino  county,  he  became  ed- 
itor and  part  owner  of  the  Ukiah  Republican- 
Press.  Not  finding  newspaper  work  congenial, 
he  sold  out  his  interest  in  the  Press  and  ac- 
cepted the  principalship  of  the  Placerville 
schools,  and  later  the  same  position  in  the  Red- 
wood City  schools.  Having  resolved  to  enter 
the  legal  profession,  he  devoted  his  spare  time 


while  teaching,  to  the  study  of  law,  and  was 
admitted  to  practice  by  th'c  Supreme  Court. 
After  admission  to  the  bar,  he  opened  an  office 
at  Redwood  City.  In  iSgC)  he  returned  to 
Mendocino  county,  locating  at  Ukiah.  wiiere 
he  formed  a  co-partnership  with  Hon.  John  W. 
Johnston,  now  of  Sacramento.  This  continued 
until  Mr.  Johnston's  removal  from  the  county, 
two  years  later.  Mr.  Thatcher  has  always 
taken  an  active  interest  in  politics,  on  liie 
Republican  side,  being  the  candidate  of  that 
I)arty  for  district  attorney  of  Mendocino 
county,  in  1898,  and  chairman  of  the  county 
central  conunittee  in  lyoo.  He  is  one  of  the 
best  lawyers  in  Northern  California,  and  one 
of  the-  most  respected  citizens  of  Ln<i;ih.  and 
his    i)ractice    is    steadily   increasing. 


T.  C.  THORNTON. 

A  very  receiU  accession  to  the  bar  of  Los 
Angeles  is  Colonel  T.  C.  Thornton,  who  re- 
moved to  that  city  from  Texas  so  late  as  the 
15th  of  July,  1900.  He  was  born  in  Texas. 
in  186.3,  and  is  a  graduate  of  the  Texas  Uni- 
versity, and  practiced  law  in  that  state  for 
fifteen  years.  He  is  an  accomplished  lawyer, 
of    fine    i)resence    and    address,    and    the    most 


1082 


History  of  the  Bench  and  Bar  of  California. 


cheerful  temperament,  and  is  one  of  llie  men 
to  whom  the  battle  of  life  seems  easy.  We  had 
the  pleasure  of  becoming  acquainted  with  him 
about  two  months  after  he  had  settled  down 
in  his  California  home.  We  learned  enough 
of  him  to  be  fully  assured  that  the  following 
fine  words  of  commendation  were  not  misap- 
plied. They  are  from  the  Greenville  (Texas). 
Morniug  Herald. 

"The  many  friends  in  Hunt  county  and 
throughout  the  state  of  Colonel  T.  C.  Thorn- 
ton WK.  regret  to  learn  that  he  leaves  today 
for  Los  Angeles.  California,  where  he  expects 
to  reside  permanently.  Colonel  Thornton  has 
been  a  member  of  the  Greenville  bar  for  some 
ten  years,  and  is  an  attorney  of  character  and 
ability.  He  has  enjoyed  a  lucrative  practice 
here,  being  retained  in  many  of  the  most  im- 
portant criminal  and  civil  cases  before  the 
courts,  and  is  intUicnced  in  leaving  Greenville 
for  Los  Angeles  because  of  social  and  family 
ties  at  the  latter  place.  In  his  practice,  in  his 
rulings  as  special  judge,  and  in  his  arguments 
before  the  higher  courts  of  the  state  he  has 
continually  shown  his  intimate  knowledge  of 
the  principles  of  law,  and  his  ability  to  suc- 
cessfully apply  them.  Colonel  Thornton  has 
not  only  been  a  prominent  and  successful  at- 
torney, but  he  has  for  years  taken  an  active 
part  in  the  politics  of  the  state.  He  served  as 
assistant  secretary  of  state  under  Governor 
Culberson,  and  was  later  urged  by  friends 
throughout  the  state  to  become  a  candidate  for 
lieutenant-governor.  He  numbers  among  his 
personal  friends  many  of  the  most  prominent 
men  in  the  state,  including  Supreme  and  Ap- 
pellate Court  Judges,  state  officials,  past  and 
present,  and  other  leading  men  of  Texas.  Col- 
onel Thornton  is  genial  and  pleasant  in  social 
life,  correct  in  his  conduct,  steadfast  in  his 
friendships,  and  in  every  relation  a  splendid 
gentleman.  He  will  take  with  him  to  his  new 
home  the  best  wishes  of  his  associates  at  the 
bar  and  friends  everywhere  for  a  useful  and 
successful   life." 


W.ALTEK   J.     l-R.XSK, 

This  gentleman,  tiie  junior  member  of  a 
leading  firm  of  Los  Angeles,  has  himself  taken 
a  place  at  the  very  front  of  the  younger  bar  of 
the  State  as  a  trial  lawyer.  He  was  born  in 
Jefferson.  Maine,  July  6,  1862.  His  education, 
after  his  early  boyhood  schooling,  was  received 
at  Nichols'  Latin  Schtxil  in  Lewiston.  Maine, 
and  in  Waterville  Classical  Institute.  He  read 
law-  in  the  office  of  Eugene  M.  Wilson,  at 
Minneapolis,  Minnnesota,  and  in  that  of  War- 
ner &  Stevens,  in  the  neighboring  city  of  St. 
Paul,  and  was  admitted  to  the  bar  at  St.  Paul 
in  1886.  He  practiced  law  there  in  partner- 
ship with  John  A.  Lovely,  who  is  now  one  of 
the  justices  of  the  Supreme  Court  of  Minne- 
sota. 

Mr.  Tra«k  came  to  California  in  i8go.  and 
located  at  Los  Angeles,  where  he  has  always 
since  lived  and  practiced.  In  the  year  1893 
he  became  a  partner  of  the  bar  leader,  John  D. 
Bicknell.  Ex-Judge  James  A.  Gibson  after- 
wards joined   them,   and   the   firm  of   Bicknell, 


Gibson  &  Trask  still   continues. 

Mr.  Trask  usually  tries  the  cases  of  tlie 
firm.  He  has  become  a  skilled  and  well  ■ 
equipped  lawyer,  generally,  and  has  had  large 
and  special  experience  in  transportation  and 
oil  cases. 

JOHN  R.  TYRRELL. 

Hon.  John  R.  Tyrrell  of  Grass  Valley 
county.  State  senator  of  the.  counties  of  Ne- 
vada, Sierra  and  Plumas,  was  born  in  the  city 
of  Hale,  England,  January  30,  1868.  He  was 
only  a  year  old  when  brought  to  California, 
and  his  entire  life  since  has  been  passed  in  the 
always  thriving  city  which  is  now  his  home, 
excepting  a  few  years  of  his  early  manhood, 
spent  in  the  employ  of  one  of  the  iron  works 
of  San  Francisco.  Before  such  employment 
he  had  attended  for  some  years  the  common 
schools  of  Grass  Valley.  From  the  iron  works 
lie  went  back  to  that  city,  and  opened  a  feed 
store,  and,  while  conducting  that  business,  pre- 
pared for  the  bar  by  private  study  of  the  proper 
books.  He  had  begun  the  study  of  law  in 
San  Francisco.     After  a  while  he  sold  out  his 


store  and  devoted  himself  entirely  to  study. 
He  was  elected  a  justice  of  the  peace.  Being 
admitted  to  the  bar,  he  resigned  his  office,  and 
entered  on  the  practice  of  law  in  Grass  Valley. 

In  IQOO  Mr.  Tyrrell  was  nominated  by  the 
Republican  senatorial  convention  of  Nevada. 
Sierra  and  Plumas  counties  for  joint  senator 
from  those  counties.  Before  his  nomination, 
when  his  candidacy  was  first  announced,  the 
Nevada  City  Transcript  endorsed  him  in  a 
hearty  editorial,  from  which  the  following  is 
quoted  : 

"ITpon  the  breaking  out  of  the  Spanish  War 
he  was  first  lieutenant  of  Company  I,  N.  G.  C. 
and  when  that  company  was  called  out  he  en- 
tered the  service  of  the  United  States  as  first 
lieutenant  of  Company  I,  of  the  Eighth  Regi- 
ment, U.  S.  Volunteers,  and  remained  in  the 
service  until  tTiustered  out  at  Vancouver  Bar- 
racks at  the  close  of  the  war.  All  of  his  com- 
rades   are    enthusiastic    about    his    candidacy 


History  of  the  Bench  and  Bar  of  California. 


1083 


for  iIk-  senate,  for,  as  they  say,  'he  treated 
iliem  as  an  equal  and  paid  especial  attention  to 
iheir  every  want.'  He  is  at  present  a  member 
cif  the  board  of  education  of  the  city  of  Grass 
V'alley.  In  every  instance  where  he  has  been 
a  candidate,  the  vote  has  shown  the  confi- 
ilence  and  high  esteem  in  which  he  was  held 
m  that  community.  He  was  appointed  by  the 
court  to  defend  E.  H.  Moore,  the  murderer 
of  Nignt  watchman  William  Kilroy,  when 
everyone  thought  that  there  was  no  chance  of 
saving  him  from  the  gallows,  but  by  untiring 
work  and  shrewdness  he  showed  his  legal 
ability  when  he  succeeded  in  getting  a  verdict 
of  imprisonment  for  life.  In  this  case  alone 
he  demonstrated  that  he  was  a  lawyer  of  great 
ability.  Mr.  Tyrrell  has  been  adm.itted  to  prac- 
tice by  the  Supreme  Court  of  this  State,  and 
the  United  States  District  Court. 

"If  the  people  of  the  joint  senatorial  dis- 
trict should  elect  Mr.  Tyrrell  to  represent  them 
in  the  State  senate,  they  will  have  a  senator 
who  understands  their  needs  as  well  as  ^any 
one  in  the  district,  and  he  will  not  cease  to 
labor  in  their  behalf  from  the  day  he  takes  the 
seat  until  the  expiration  of  his  term.  Mr. 
Tyrrell  is  one  of  the  most  popular  young  men 
in  the  county,  and  his  nomination  would  be 
equivalent  to  an  election." 

It  so  transpired.  The  nominee  was  elected 
by  a  larger  majority  than  had  ever  been  re- 
ceived by  a  candidate  for  that  office,  and  he 
is  serving  in  the  senate,  with  much  credit 
as  this  sketch  is  being  written  (February, 
1901).  Representing  a  rich  mining  district 
of  great  area,  he  is  working  energetically  to 
secure  legislation  in  the  interest  of  his  con- 
stituency. He  is  personally  interested  also, 
being  a  director  in  several  mining  corpora- 
tions, and  owning  three-fourths  of  the  Lin- 
coln  gold   mine,   in   his   own   cotmty. 

The  Senator  is  married  and  has  four  bright 
boys.  He  has  a  good  law  practice  at  Grass 
Valley. 

WILLIAM  J.  VARIEL. 

This  gentleman  is  a  younger  brother  of  Hon. 
R.  H.  F.  Variel,  whose  career  has  already  been 
noticed.  He  was  born  in  Camptonville,  \'ul)a 
county,  Cal.,  June  2,  1861.  His  fatiicr  and 
mother  came  to  this  State  from  Indiana  in 
i<S5J,  crossing  the  plains  with  an  emigrant  train. 
He  attended  the  public  school  at  Camptonville. 
There  were  accomplished  and  faithful  teach- 
ers, even  at  that  early  period,  and  young  Va- 
riel had  the  instruction  in  his  village  school 
of  Hon.  Samuel  T.  Black,  now  president  of 
the  Normal  School  at  San  Diego;  Hon.  C. 
W.  Cross,  now  a  prominent  lawyer  of  San 
Francisco,  who  is  also  noticed  in  this  History; 
Frank  H.  Titus,  who  Ijccame  eminent  in  sur- 
gery, and  is  now  with  the  army  in  the  Phil- 
il)pines ;  and  Hon.  E.  A.  Davis,  now  Superior 
Judge  of  Mr.  Variel's  native  comity,  ((|.  v.) 

In  1877  our  young  friend  while  on  a  visit 
to  his  brother  at  Quincy,  Plumas  county,  con- 
cluded to  transfer  his  scholastic  allegiance  to 
the  Quincy  school.  His  father  was  a  carpenter 
and    millwriglil.    and    he    helped    him    in    his 


work  in  periods  of  school  vacation.  He  pre- 
l)ared  iiimself  for  examination  as  a  teaclier  in 
the  public  schools,  and  on  May  27.  1880.  he 
passed  the  examination  and  received  a  second 
grade  teacher's  certificate.  He  found  a  school 
at  once,  and  taught  for  the  following  three 
years  at  Nelson  Point,  in  the  summer  months, 
and  at  Diamond  Springs  during  two  winters. 
His  mind  was  turnted  toward  the  medical 
profession,  and  he  gave  much  study  during 
his  leisure  hours,  to  anatomy  and  physiology. 
In  1883  he  was  about  to  take  a  course  at  a 
medical  college,  but  his  l)rother,  who  was  then 
in  San  Francisco  on  a  visit,  advised  him  to 
enter  the  State  University,  wliich  advice  he 
took.  Entering  with  the  freshman  class  in 
August,  1883,  he  was  admitted  to  a  partial 
course  in  the  college  of  chemistry.  The  funds 
which  he  had  saved  from  his  salary  as  teacher 
were  exhausted  before  the  end  of  the  first  six 
months,  and  there  were  three  and  a  half  3'ears 
of  the  college  course  before  him.  By  hard  work 
at  various  kinds  of  employment,  he  earned  suf- 
ficient means  tor  his  maintenance  while  he 
took  the  full  course,  and  he  was  graduated 
in   1888  with  the  degree  of  B.  S. 


He  had,  on  turning  away  from  medicine,  de- 
termined to  become  a  lawyer.  He  was  assist- 
ant lil)rarian  in  the  university  for  two  years, 
but  on  graduating  resigned  the  position,  and 
went  back  to  Plumas  county,  where  he  re- 
sumed teaching  school  and  followed  it  for  two 
years  more.  He  also  for  a  while  was  editor 
and  manager  of  the  Plunuis  Xatioinil.  at  Quin- 
cy, and  all  the  time  which  could  be  spared 
from  his  regular  duties  was  devoted  to  the 
diligent   study  of  law. 

In  ihe  spring  of  1891  he  had  just  finisiied 
leacliing  a  term  of  school  near  Quincy  and 
presented  himself  before  the  Superior  Court 
for  admission  to  the  bar.  An  imjiortant  mur- 
der case  was  in  progress  with  which  nearly 
all  the  attorneys  of  the  county  were  connected 
in  one  way  or  another.  Judge  Clough,  in  the 
afternoon  of  April  2Qtli,  kindly  adjourned 
court  a  little  early  so  as  to  iiermit  the  exam 
illation  of  the  ai)plicant.  The  jury  was  ex- 
cused, the  alleged  murderer  taken  back  to  his 
cell,  and  young  Variel  was  brought  into  the 
court  room,  whicli  was  crowded  with  specta- 
tors and  lawyers.  The  bench  and  bar  all  ques- 
tioned,  passing   him   around    from   c  ne   to  an- 


1084 


History  of  the  Bench  and  Bar  of  California. 


other.  They  all  highly  enjoyed  the  occasion, 
but  the  candidate  stood  up  bravely  under  the 
fire.  Judge  Clough,  Judge  Goodwin,  Judge  E. 
T.  Hogan,  Judge  C.  E.  McLaughlin,  Hon.  U. 
S.  Webb,  district  attorney,  Hon.  W.  W.  Kel- 
logg and  Hon.  Wm.  N.  Goodwin,  each  took 
a  hand  in  trying  to  find  out  what  the  trembling 
aspirant  didn't  know  about  law,  but  after  the 
lapse  of  an  hour,  which  must  have  seemed  an 
age.  Judge  Goodwin  moved  the  admission  of 
the   applicant. 

Mr.  Variel.  a  few  days  after.  ]\Iay  4,  1891, 
presented  himself  before  the  Supreme  Court 
then  sitting  at  Sacramento,  and  was  admitted 
to  practice  before  that  court,  after  another  but 
not  more  plenary  examination.  He  at  once 
went  to  Los  Angeles  and  took  office  with  his 
brother,  R.  H.  F.  Variel,  who  had  been  prac- 
ticing at  that  city  for  some  time. 

Mr.  Variel  belongs  to  the  Native  Sons  and 
has  been  a  Mason  ever  since  he  was  old 
enough  to  join  the  order.  He  is  an  active  par- 
tisan in  politics,  on  the  Republican  side.  As 
a  lawyer  he  is  industrious,  able  and  successful. 
He  has  the  esteem  of  the  bench,  the  good  will 
of  his  brethren  of  the  bar,  and  is  universally 
respected  as  a  citizen. 


MARVIN    T.    VAUGHAN. 

Mr.  Vaughan  was  born  in  Healdsburg,  So- 
noma county,  California.  He  is  a  member 
of  a  family  widely  known  for  firmness  and 
integrity.  In  1896  he  was  graduated  from 
Pacific  Methodist  College.  In  1897  he  was 
admitted  to  the  bar  of  this  State,  after  exam- 
ination by  the  Supreme  Court  and  immedi- 
ately commenced  practice  of  law  in  Santa 
Rosa.  In  1898  Mr.  Vaughan  married  Miss 
Essie  Mae  Austin,  daughter  of  Colonel  J.  S. 
Austin,   under-sheriflf  of   Sonoma  county. 

A  Santa  Rosa  editor  lately  wrote  of  Mr. 
Vaughan  :  "He  is  a  good  student  and  an  at- 
torney of  ability.  He  is  a  young  man  of  high 
standing  and  has  an  honorable  ambition  to 
rise  in'  his  profession.  He  belongs  to  that 
class  of  men  who  deserve  to  succeed." 

In  April,  1900,  Mr.  Vaughan  was  elected 
by  a  very  large  majority  over  a  popular  and 
able  lawyer,  city  attorney  of  Santa  Rosa, 
which  position  he  is  now  occupying. 

SHIRLEY  C.  WARD. 

Shirley  C.  Ward  is  one  of  the  younger  mem- 
bers of  the  bar  of  Los  Angeles,  having  been 
born  near  Nashville,  Tennnessee,  in  1861.  He 
is  the  son  of  Mr.  John  Shirley  Ward,  a  re- 
tired lawyer  and  editor  of  that  city,  and  is  de- 
scended on  his  mother's  side  from  the  Robert- 
sons of  Tennessee,  who  were  among  the  pion- 
eers and  commonwealth  builders  of  the  old 
"Volunteer"  state.  Until  his  twelfth  year  he 
attended  the  city  schools  of  Nashville,  and  the 
Montgomery  Rcll  Academy,  a  preparatory 
school  of  the  State  LIniversity.  Few  boys  of 
that  age  ever  had  a  more  thorough  foundation 
laid  for  a  broad  and  classical  education,  but  it 
became  necessary  for  him  to  seek  a  milder 
climate,  and  so  his  father  settled  in   Southern 


California,  and  established  a  large  alfalfa  and 
fruit  ranch,  that  his  son  might  get  plenty  of 
fresh  air  and  take  all  his  physical  culture  at 
the  end  of  a  pitchfork.  He  received  his  legal 
education  at  the  Hastings  Law  School,  under 
the  celebrated  Professor  Pomeroy,  who  pre- 
dicted in  a  letter  to  his  father,  when  he  was 
finishing  his  course,  "that  it  he  has  health, 
there  is  no  place  at  the  bar  or  on  the  bench 
that  he  will  not  reach." 

In  1885  he  hung  out  his  shingle  in  a  little 
inside  office  of  the  Temple  Block.  Mr.  Ward's 
father  was  at  that  time  the  Indian  commis- 
sioner for  the  Mission  Indians,  and  a  contro- 
versy arose  as  to  the  ownership  of  certain  for- 
feited desert  land  sections,  within  the  exterior 
lines  of  the  Indian  reservation,  the  commis- 
sioner contending  that  the  forfeiture  inured 
to  the  Indians,  and  not  to  the  whites.  The 
case  was  carried  up  to  the  CommissicTner  of 
the  Land  Office,  and  then  appealed  to  the  Sec- 


retary of  the  Interior.  His  father  then  told 
his  briefless  son  that  he  did  not  have  authority 
to  pav  an  attorney  to  make  a  brief  in  behalf  of 
the  Indians,  but  if  his  son  wished  to  try  tin 
experiment  of  "casting  bread  upon  the  wa- 
ters," he  might  file  an  argument,  and  he  would 
submit  it  to  the  secretary,  the  Hon.  L.  Q.  C. 
Lamar.  This  brief  won  the  case  for  the  In- 
dians, and  it  fell  into  the  hands  of  Attorney- 
General  Garland,  and  very  soon  the  latter 
needed  an  attorney  to  represent  the  govern- 
ment at  San  Francisco  in  the  Muscupiabe 
grant  case.  Mr.  Ward  was  appointed  by  a  tele- 
graphic order,  after  having  written  to  the  de- 
parment  that  he  could  not  win  the  case,  as  the 
law  was  against  the  government's  claim.  He 
lost  the  case,  but  he  soon  received  a  check  for 
$2500.  This  led  to  his  appointment,  on  behalf 
of  the  Indians,  in  the  San  Jacinto  Indian  land 
case,  which  he  carried  to  the  Supreme  Court 
of  the  State,  winning  it  for  the  Indians  and 
receiving  therefor  another  check  for  $2500. 
This  put  him  on  high  vantage  ground  with 
the  Department  of  Justice,  and  for  several 
years  he  was  the  attorney   for  the   Indians  in 


History  of  the  BencJi  and  Bar  of  California. 


1085 


many  important  cases,  for  which  he  received 
not  less  than  $5000,  making  in  the  first  five 
years  of  his  practice  $10,000 — all  the  result  of 
"bread  cast  on  the  waters." 

Then  came  the  great  corporation  case  of 
Woodruff  vs.  Howes,  Bonebrake,  Merrill  and 
the  Semi-Tropic  Company,  involving  millions 
of  dollars,  which  he  w^on  in  the  Supreme  Court. 
Then  came  the  First  Presbyterian  Church  case, 
which  gave  great  scope  for  a  display  of  legal 
learning,  and  brought  him  face  to  face  with 
John  S.  Chapman,  the  foremost  advocate  of 
the  Los  Angeles  bar.  The  Supreme  Court 
gave  him  the  victory  in  this  case.  Then  fol- 
lowed the  bonds  case  of  the  Rialto  Irrigation 
district,  which  case  has  been  fought  with  sig- 
nal ability  by  both  sides,  but  recently  was 
gained    for    Mr.    Ward's    clients. 

In  the  recent  "scrippers"  cases  before  the 
Circuit  Court  of  the  United  States  in  Los 
Angeles,  Mr.  Ward  met  in  hotly  contested  bat- 
tles many  of  the  ablest  lawyers  in  Southern 
California,  but  he  proved  himself  a  "foeman 
worthy  of  their  steel."  Mr.  Ward  is  now  rep 
resenting  these  same  scrippers  before  the  land 
department  at  Washington,  and  as  soon  as  the 
cases  are  settled,  by  order  of  the  Department 
of  Justice,  he  will  argue  before  the  Supreme 
Court  of  the  United  States  on  behalf  of  the 
Mission  Indians,  to  prevent  their  ejectment 
from  the  homes  of  their  ancestors,  on  the 
Downey  Ranch,  in  California. 

Mr.  Ward  has  always  had  able  lawyers  as- 
sociated with  him  in  all  his  great  legal  con- 
tests, but  has  uniformly  written  all  the  briefs, 
although  they  have  been  siarned  by  the  other 
attorneys.  It  is  one  of  the  eccentricities  of  his 
mental  make-up,  that  he  becomes  so  saturated 
with  the  law  of  his  case,  that  he  cannot  help 
writing  it  out  himself.  He  has  that  order  of 
mind  that  strikes  straight  to  the  heart  of  his 
subject.  He  is  no  placer  miner,  skimming 
the  mere  surface,  but  thrusts  his  pick  of  inves- 
tigation down  to  where  the  gold-laden  quartz 
and  oil-sands  lie. 

Mr.  Ward,  in  1892,  married  a  daughter  of  the 
Hon.  Jefferson  Chandler,  and  has  an  interest- 
ing family  of  three  boys  and  a  daughter.  His 
family  is  his  paradise,  where  he  forgets  to  be 
the  lawyer  and  becomes  llic  happy  husband  and 
father.  

JOHN    MADISON    WALTHALL. 

John  Madison  Walthall  was  born  near  Stock- 
ton, California,  on  December  31st,  1871.  His 
father,  Madison  Walthall,  Jr.,  was  descended 
from  a  Virginia  family  which  emigrated  to 
the  Old  Dominion  in  early  colonial  times  and 
has  had  among  its  members  many  men  distin- 
guished at  the  bar,  foremost  in  the  group  being 
Hcnrv  Clay,  and  latterly  General  Edward  C. 
Walthall,  C.  S.  A.,  afterwards  United  States 
senator  from   Mississip])i. 

Madison  Walthall,  Jr..  was  born  in  Missis- 
sippi, where  his  family  lived  for  a  time,  but 
came  to  California  in  1852  at  the  request  of  his 
father,  Madison  Walthall,  Sr.,  who,  having 
served  as  an  officer  in  the  Mexican  War,  became 
imbued  with  the  pioneer  spirit  and  took  up  his 
residence  in  the  far  West. 


Colonel  Madison  Walthall  was  a  member  of 
the  first  legislature  of  California,  which  con- 
vened at  San  Jose,  and  was  afterwards  ap- 
pointed collector  of  the  port  of  Stockton  under 
the  administration  of  President  Buchanan.  His 
son,  Madison  Walthall,  Jr.,  the  father  of  the 
subject  of  this  sketch,  followed  the  profession 
of  surveying,  and  during  the  early  history  of 
California  made  many  valuable  maps  of  the 
country.  He  combined  a  rare  gift  of  study 
with  his  business  abilities  and  would  undoubt- 
edly have  attained  distinction  as  a  scholar  if 
death  had  not  claimed  him  while  he  was  still 
a  young  man.  His  wadow  and  children  then 
parted  with  their  San  Joaquin  home  and  moved 
to  Stanislaus  county. 

John  Madison  Walthall,  the  only  son,  was 
sent  at  an  early  age  to  Lytton  Springs,  and 
afterwards  to  Laurel  Hall,  while  under  the 
direction  of  Dr.  John  Gamble,  and  was  grad- 


uated there  several  years  later.  In  1895  he 
entered  Hastings  College  of  the  Law,  and 
during  his  three  years'  course,  had  the  benefit 
of  association  with  his  brother-in-law.  Judge 
Edward  A.  Belcher,  with  whom  he  lived,  and 
of  William  S.  Barnes,  who  was  then  district 
attorney  of  San  Francisco. 

In  1898,  Mr.  Walthall  was  graduated  from 
the  law  college  named  with  the  degree  of 
B.  L.  He  immediately  began  the  practice  of 
law  at  Modesto.  In  November  of  that  year, 
having  been  nominated  to  the  office  of  district 
attorney  by  the  Republican  party,  he  was 
elected  by  a  large  majority,  and  in  January, 
1899.  assumed  the  duties  of  his  office,  being 
the  first  Republican  district  attorney  to  hold 
office  in  Stanislaus  county. 


M.    II.   W.ASCERWITZ. 

Morris  Herman  Wasccrwitz  was  born  on 
Februarv  22n(l,  i86v  in  the  City  of  New 
York. 

In  1877,  3t  the  age  of  twelve  years,  having 
been  graduated  from  grammar  school  No.  24, 
New  York   city,  he  came  to  California. 

In  1888,  he  was  graduated  with  honors  from 


1086 


History  of  the  Bench  and  Bar  of  California. 


llic  Hastings  College  of  the  Law,  and  has 
since  then  been  continuously  practicing  his 
profession  in   San  Francisco. 

He  has  been  connected  with  important  liti- 
gation, and  is  a  very  successful  practitioner. 


J.  R.  WELCH. 


This  gentleman  has  lately  been  brought  into 
prominence  by  being  employed  by  the  organ- 
ized depositors  of  the  wrecked  Union  Savings 
Bank  of  San  Jose.  He  represents  more  than 
nine  hundred  depositors,  whose  claims  amount 
to  about  $400,000.  He  has  made  many  suc- 
cessful lights  for  his  clients,  and  in  a  year  and 
a  half  has  collected  directly  from  the  stock- 
holders about  forty  per  cent  upon  the  deposit 
demands  in  his  hands.  This  large  percentage 
paid  on  judgments  against  the  stockholders, 
practically   secures   to   those   depositors    repre- 


sented by  him  the  full  amount  of  their  claims. 
Soon  after  the  bank  went  into  liquidation,  the 
stockholder  directors  levied  an  assessment,  and 
thereafter  advertised  the  stock  for  sale.  On 
behalf  of  his  clients,  Mr.  Welch  succeeded  in 
enjoining  the  directors  from  the  sale  of  the 
worthless  stock.  He  alleged  and  showed  that 
it  was  the  intention  of  the  stockholders  to  not 
only  relieve  themselves  from  the  payment  of 
the  ten-dollar  assessment,  but  from  the  $700,000 
on  unpaid  subscriptions.  This  victory  com- 
pelled the  bank  to  proceed  in  the  usual  way  to 
liquidate   its  affairs. 

Born  in  Illinois,  Mr.  Welch  has  lived  in 
several  states,  but  has  been  a  resident  of  Cali- 
fornia since  1881.  He  obtained  a  college  edu- 
cation alone  and  unaided  at  the  University  of 
the  Pacific.  Graduating  in  1887.  he  imme- 
diately began  the  study  of  the  law.  and  in 
eight  months  thereafter  was  admitted  to  prac- 
tice by  the  Supreme  Court  of  the  State.  He 
holds  a  certificate  from  the  United  States  Dis- 
trict Court  for  the  northern  district  of  Califor- 
nia. 

In  January,  1894,  he  was  elected  city  attor- 
ney of  San  Jose,  and  held  this  office  for  three 
years,   when  he  resigned.     During  his  admin- 


istration he  was  a  successful  prosecutor  of 
violators  of  city  ordmances.  The  High  School 
building  was  erected  during  the  time  he  was 
city  attorney,  on  a  portion  of  what  is  known 
as  Washington,  or  Normal.  Square.  He  was 
largely  instrumental  in  getting  a  bill  through 
the  State  legislature  permitting  the  building  to 
be  erected  thereon,  and  obtained  from  the 
State  for  the  city  a  deed  to  about  one-fourth 
of  tnis  large  square.  He  prepared  all  the  pro- 
ceedings in  the  bond  issue  of  $115,000  for  the 
erection  of  the  High  School  building,  sewers 
and  other  municipal  improvements.  The  pro- 
ceedings were  reviewed  by  Judge  Dillon  of 
New  York,  and  pronounced  by  that  world- 
wide authority  on  municipal  corporations,  ac- 
curate and  legal.  The  mayor  and  certain  mem- 
bers of  the  council  insisted  on  the  city  attor- 
ney making  the  bonds  payable  in  "gold  coin," 
but  Mr.  Welch  persisted  in  following  the  lan- 
guage of  the  law,  and  made  them  payable  in 
"gold  coin  or  legal  money  of  the  United 
States."  Llence  his  proceedings  were  pro- 
nounced correct,  while  the  Suoreme  Court  has 
decided  other  issues  of  bonds  of  other  cities 
illegal  when  they  were  made  payable  in  gold 
coin  only.  Also,  the  city  of  San  Jose,  while 
the  subject  of  this  sketch  was  city  attorney, 
prepared  and  adopted  a  constitutional  free- 
liolders'  charter.  In  the  adoption  of  this  char- 
ter Mr.  Welch  took  an  active  part,  being  in- 
vited by  the  freeholders  to  meet  with  them  in 
its  ^preparation.  However,  his  best  services  were 
rendered  the  city  in  a  series  of  opinions  on  the 
interpretation  of  the  charter,  after  its  adoption. 
These  opinions  were  necessary  in  order  to  put 
the  city  government  in  full  operation  under  its 
new  organic  law.  It  is  said  that  not  one  of 
these  opinions  has  been  overruled  by  the 
courts.  For  the  last  year  and  a  half  he  has 
devoted  nearly  his  entire  time  and  energy  to 
the  so-called  bank  cases,  but  before  that  time 
he  was  engaged  in  other  important  litigation. 


■       JOHN  J.    WELLS. 

This  gentleman  was  born  in  the  northern 
part  of  Idaho,  on  the  loth  of  September,  1867. 
His  father  was  engaged  in  mercantile  pur- 
suits. In  the  following  year  the  family  re- 
moved to  Tehama  county,  Cal.,  where  they 
have  since  resided.  Mr.  Wells  was  graduated 
from  the  grammar  school  at  Red  Bluff  at  the 
age  of  thirteen.  He  shortly  afterward  entered 
the  office  of  the  Red  Bluf¥  Tocsin,  learned  the 
l)rinting  trade,  and  worked  thereat  until  1889. 
He  then  took  up  typewriting  with  N.  H. 
Peterson,  official  court  reporter.  In  1890  he 
became  clerk  in  the  law  office  of  Gen.  N.  P. 
Chipman  at  Red  Bluff.  He  was  admitted  to 
the  bar  of  the  Superior  Court  of  Tehama  coun- 
ty in  1892 ;  and  to  the  bar  of  the  Supreme 
Court  in  1897. 

In  the  last  year  General  Chipman  retired 
from  practice,  and  Mr.  Wells  kept  his  offices 
and  succeeded  to  his  business. 

Mr.  Wells  is  attorney  for  the  Bank  of  Te- 
hama County,  the  Herbert  Kraft  Company 
Bank,  and  several  other  corporations.  He  is 
active   in   politics,   a  Democrat,  but  has  never 


History  of  the  Bench  and  Bar  of  California. 


1087 


been  a  candidate  for  office.  He  has  been  a 
prominent  Odd  Fellow  for  many  years.  He  is 
an  earnest  worker  in  his  profession,  and  has 
achieved  success  without  the  aid  of  oratory ; 
caring  nothing  for  gallery  favor.  Mr.  Wells 
married  in  1895,  Miss  Lulu  Law,  of  Sonoma, 
and   has  one  child,  a  daughter. 


BERTIN    A.    WEYL. 


Bertin  A.  Weyl  is  a  native  of  San  FranciscQ 
and  has  made  that  place  his  residence  during 
the   twenty-four  years   of  his   life. 

He  was  educated  in  the  public  schools  of  his 
birthplace,  and  was  graduated  from  the  San 
Francisco    boys'    high    school.      Thereafter    he 


institution,  which  hangs  in  Mr.  Wilbur's  office, 
and  remarked  upon  the  names  of  the  famous 
naval  heroes  that  arc  signed  to  it. 

Upon  coming  to  Los  Angeles  in  September. 
1888,  Mr.  Wilbur  taught  mathematics  in  the 
McPherron  Academy,  studying  law  at  night. 
He  was  admitted  to  the  bar  in  i8(jo,  and  has 
since  been  successfully  practicing  in  Los  An- 
geles. 

Mr.  Wilbur  is  now  chief  deputy  district  at- 
torney of  Los  Angeles  county,  under  Hon. 
James  C.  Rives.  He  entered  on  the  duties  of 
this  office  in  January,  1899.  Quite  recently, 
when  Mr.  Wilbur  was  the  subject  of  conver- 
sation  between    Mr.    Rives   and   the   editor   of 


attended  the  University  of  California  at  Berke- 
ley, and  thence  he  pursued  a  law  course  at 
the   Hastings   College  of  the  Law. 

Early  in  1899  the  degree  of  bachelor  of  law 
was  conferred  upon  him,  and  he  was  admitted 
to  practice,  whereupon  he  entered  into  a  gen- 
eral  practice  of  law   in   his  native  city. 

CURTIS  1).   WILBUR. 

Curtis  Dwight  Wilbur  was  born  in  Booncs- 
boro,  Iowa,  in  1867.  He  received  his  early  edu- 
cation in  the  common  schools  of  that  state, 
and  upon  removing  to  Dakota  in  1882,  two 
years  later,  he  received  the  coveted  appoint- 
ment to  represent  that  territory  in  the  United 
States  Naval  Academy  at  Annapolis.  He  was 
at  that  institution  three  years  with  the  hero  of 
the  Merrimac.  Mr.  Wilbur  graduated  in  1888, 
and  Lieutenant  Hobson  one  year  later.  During 
the  same  lime  Admiral  Sampson  was  the  su- 
perintendent of  the  school  and  Captain  Sigsbee 
one  of  the  heads  of  de])artnu-nt.  .\t  this  school 
Mr.  Wilbur  stood  close  In  the  top  of  all  his 
classes,  being  entitled  for  one  year  to  wear 
the  gold  star  on  his  coat  collar,  as  a  token 
of  having  passed  that  period  with  distinction, 
and  was  finally  graduated  with  credit,  third  in 
his  class.  The  writer  of  this  has  on  several 
occasions  noted  tlie  dijilnma  rcceivcfl  from  \\\\< 


this  History,  the  worthy  district  attorney  re- 
marked :  "He  is  honest  by  instinct  and  edu- 
cation. He  is  possessed  of  a  splendid  judicial 
mind.  As  chief  deputy  district  attorney  he  has 
attended  to  the  civil  matters  of  the  county,  to 
the  great  satisfaction  of  his  principal  and  the 
interest  of  the  county.  Few  men  are  so  well- 
e(|uii)i)ed  for  a  successful  career  as  a  lawyer." 


EDWIN   A.   WILCOX. 

Edwin  A.  Wilcox  was  born  at  Fort  Wayne, 
Indiana,  March  12.  1868,  of  American  parents. 
He  came  to  California  in  1869,  and  has  resided 
at  San  Jose  since  1874.  He  received  his  educa- 
tion in  the  public  schools  of  San  Jose,  and  the 
LIniversity  of  the  Pacific,  taking  the  degree 
of  \.  B..  from  tlie  latter  institution  in  1890..  He 
studied  law  at  the  University  of  Michigan, 
where  he  took  the  degree  of  LL.  B.  in  1893. 
Beginning  the  practice  of  law  at  San  Jose,  in 
the  fall  of  189,^,  Mr.  Wilcox  was  associated 
with  I).  M.  Delinas  and  A.  H.  Jarman  in  the 
trial  of  tile  slander  ca.se  of  J.  P.  Jarman  vs. 
James  W.  Rea,  and  also  on  the  appeal  by  the 
defendant  to  the  Supreme  Court.  He  was 
also  attorney  for  the  Home  of  Benevolence, 
of  San  Jose  in  the  will  contest  in  the  estate 
of  (George  H.   Parker,  deceased. 


1088 


History  of  the  Bench  and  Bar  of  California. 


H.  E.  WILCOX. 

H.  E.  Wilcox  was  born  in  Solano  county, 
California.  His  father,  Harvey  Wilcox,  was 
a  pioneer  and  one  of  the  founders  of  the  town 
of  Maine  Prairie,  in  that  county,  a  large  ship- 
ping point  for  the  products  of  the  western  part 
of  the  Sacramento  valley  in  tlie  days  before  the 
railroad.  H.  E.  Wilcox  attended  the  public 
schools,  and  afterwards  Santa  Clara  College, 
from  which  institution  he  graduated  in.  1880. 
He  entered  upon  the  study  of  the  law  at  San 
Jose,  first,  and  in  the  office  of  his  brother, 
Charles  F.  Wilcox,  and  then  with  B.  P.  Ran- 
kin and  L.  D.  McKisick,  the  latter  of  whom 
afterwards  removed  to  San  Francisco.  Mr. 
Wilcox  was  admitted  to  the  bar  in  January, 
1883.  and  after  serving  a  period  as  court  deputy 
in  the  county  clerk's  office  of  Santa  Clara 
county,  he  commenced  the  practice  of  his  pro- 
fession. He  has  resided  at  San  Jose  for  over 
twenty  years,  and  is  at  present  associated  with 
D.  M.  Burnett,  grandson  of  the  first  Governor 
of  California.  The  firm  of  H.  E.  Wilcox  and 
D.  M.  Burnett  is  widelv  and  favorably  known, 
and  is  legal  adviser  for  the  San  Jose  Safe 
Deposit.  Bank  of  Savings,  and  the  Commercial 
bank  of  Los  Gatos,  besides  representing  several 
large  estates  and  business  interests. 

GEO.  F.  WITTER. 
Geo.  F.  Witter,  Jr.,  was  born  in  Grand 
Rapids,  Wisconsin.  November  8th.  1863,  his 
father  being  the  Hon.  Dr.  G.  F.  Witter,  of 
that  place,  and  his  mother,  a  sister  of  the  Hon. 
T.  G.  Phelps,  of  San  Francisco.  He  obtained 
his  education  in  the  common  schools  of  Grand 
Rapids.  Wisconsin,  and  completed  the  course 
of  the  Howe  High  School  of  that  city  in  June. 
1881.  He  was  engaged  in  attending  to  general 
business  until  January.  1882,  when  he  was  ap- 
pointed nightwatch  of  the  senate  of  Wisconsin 
for  the  session.  During  the  winter  and  spring 
of  1882  he  attended  the  Northwestern  Business 
College,  of  Madison.  Wisconsin,  and  was  grad- 
uated from  that  institution  with  honors.  He 
entered  the  University  of  Wisconsin  in  the  fall 
of  1882  and  attended  the  University  for  two 
years,  after  which  time  he  obtained  a  first- 
grade  state  certificate  and  was  elected  princi- 
])al  of  the  Huinbird  High  School,  which  posi- 
tion he  filled  with  entire  satisfaction,  and  was 
highly  recommended  by  the  school  board  for 
his  efficient  work.  He  resumed  his  course  at 
the  I'niversity  of  Wisconsin  in  the  fall  of  1885. 
and  being  anxious  to  practically  apply  himself, 
completed  his  course  in  February.  1887.  by 
substituting  the  extra  work  he  had  done  dur- 
ing his  attendance,  with  a  recommendation  for 
special  honors.  At  that  time  he  was  tendered 
and  accented  the  position  of  principal  of  the 
public  schools  of  Merrill,  Wisconsin,  which  he 
reorganized,  and  graduated  the  first  class  of 
the  Merrill  High  School  in  June,  1887,  after 
which  he  returned  and  was  graduated  with  his 
class  at  the  LTniversity  of  Wisconsin.  Mr. 
Witter  was  re-elected  principal  of  the  pu])lic 
schools  of  Merrill  at  an  advanced  salary,  but 
resigned  that  position  and  accepted  that  of 
nrincipal  of  the  public  schools  of  Marshficld. 
Wisconsin,  for  business  reasons,  where  he  did 
excellent  work  to  June.  1888.     Having  devoted 


himself  to  reading  law  during  his  spare  mo 
nients,  he  entered  the  law  department  of  the 
University  of  Wisconsin  and  was  graduated 
with  the  class  of  1889.  After  arranging  his 
business  at  Grand  Rapids,  he  was  profession- 
ally emnloyed  at  Wallace,  Idaho,  and  remained 
there  until  the  town  was  consumed  by  fire  in 
July.  1890,  when  he  returned  to  Wisconsin, 
again  taking  up  his  business  until  April,  1892, 
when  he  went  to  California  and  located  at  the 
city  of  El  Paso  de  Robles,  where  he  has  since 
been  in  the  active  practice  of  the  law.  While 
in  Wisconsin  Mr.  Witter  was  identified  with 
the  Wisconsin  Cranberry  Growers'  Associa- 
tion and  was  interested  in  that  business.  He 
has  been  prominently  identified  with  the  Re- 
publican party,  his  name  having  been  men- 
tioned at  different  times  for  Superior  Judge, 
district  attorney  and  member  of  the  assembly 
for  San  Luis  Obispo  county.  He  held  the 
office  of  city  attorney  of  the  city  of  El  Paso 
de  Robles  during  the  years  1897-98.  He  mar- 
ried Mary  A.  Carter,  daughter  of  E.  D.  Car- 
ter, of  Humbird,  Wisconsin,  in  January,  1891, 
and  they  have  three  children. 

MARSHALL  B.  WOODWORTH. 

Marshall  Borel  Woodworth  was  born.  De- 
cember 18,  1869.  at  Gold  Hill,  Nevada.  He 
was  self-educated.  During  his  childhood  he 
was  entirely  dependent  on  the  support  of  his 
mother,  and  to  assist  her  he  commenced  w'ork- 
ing  at  eleven  years  of  age.  He  entered  the  law- 
office  of  Milton  Andros.  San  Francisco,  in 
1882.  and  was  aopointed  assistant  clerk  in  the 
L'nited  States  District  Court  in  1886.  Subse- 
quently he  became  private  secretary  to  Ogden 
Hoffman.  L'nited  States  District  Judge.  When 
Judge  Hoffman  died,  and  Judge  Morrow  was 
appointed  to  succeed  him.  Mr.  Woodworth 
was  retained  as  the  latter's  private  secretary. 
When  Judge  Morrow  was  appointed  United 
States  Circuit  Judge.  Mr.  Woodworth  was 
promoted  to  the  United  States  Circuit  Court 
secretaryship.  He  was  graduated  from  Hast- 
ings College  of  the  Law  in  1894,  and  w-as  ap- 
pointed first  assistant  United  States  attorney  in 
November,  i8g8.  He  has  been  a  contributor 
to  the  American  Law  Review.  Owing  to  his 
long  experience  in  the  Federal  courts,  he  is 
regarded  as  one  of  the  leading  members  of  the 
Federal  bar. 

Just  as  this  History  was  being  closed.  Presi- 
dent McKinley  appointed  Mr.  Woodworth  to 
the  office  of  United  States  attorney  for  the 
northern  district  of  California,  in  place  of  Mr. 
Woodworth's  chief  in  that  office.  Hon.  Frank 
L.  Coombs,  who  had  been  lately  elected  to 
Congress,  and  the  nomination  was  confirmed 
bv  the  Senate  on  the  3d  of  March.  1901. 


LEWIS  R.  WORKS. 

Lewis  Reed  Works  was  born  December  28th. 
1869,  at  Vevay,  Switzerland  county,  Indiana. 
He  came  to  California  in  April,  1883,  and  since 
then  San  Diego  has  been  his  home  most  of 
the  time.  He  is  the  eldest  son  of  John  D. 
Works,  once  Associate  Justice  of  the  Supreme 
Court  of  this  State,  and  studied  law  with  the 
firm    of    Works.    Gibson    &   Titus,    a    partner- 


James  L.   Gallagher 


History  of  the  Bench  and  Bar  of  California. 


1091 


ship  which  was  formed  upon  Judge  Works' 
retirement  from  the  supreme  bench,  between 
that  jurist,  James  A.  Gibson,  formerly  Supreme 
Court  Commissioner,  and  Mr.  Harry  L.  Titus, 
one  of  the  best  corporation  lawyers  in  South- 
ern California.  Under  the  guidance  of  these 
gentlemen  Lewis  R.  Works  obtained  his  legal 
education,  and  on  April  4th,  1892,  was  ad- 
mitted to  practice  before  the  Supreme  Court 
of  California.  Upon  the  dissolution  of  the 
firm  of  Works,  Gibson  &  Titus,  Mr.  Works 
formed  a  partnership  with  his  father,  and 
the  firm  of  Works  &  Works  exists  today,  and 
is  recognized  as  one  of  the  strongest  in  the 
southern  portion  of  the  State. 

On  January  17th,  1894,  he  married  Miss 
Edna  Pierce,  the  beautiful  and  accomplished 
daughter  of  Hon.  William  L.  Pierce,  then 
one  of  the  judges  of  the  Superior  Court  of  San 
Diego  county,  who  is  now  at  the  bar  of  San 
Francisco.  This  union  has  been  blessed  by  a 
son,  Pierce  Works,  born  January  2nd,  1896, 
in  San  Diego. 

At  the  general  election  in  November,  1898, 
Lewis  R.  Works  was  elected  a  member  of 
the  assembly  from  the  Seventy-ninth  district, 
comprising  the  city  of  San  Diego.  He  is  the 
author  of  the  famous  "Anti-Cartoon  bill," 
and  because  of  this  was  caricatured  by  the 
newspapers  of  the  State  more  than  any  other 
member  of  the  legislature.  He  is  a  Republican 
in  politics,  and  very  popular  with  his  party, 
btit  the  demands  on  his  time  are  such  that 
he  has  declined  to  again  be  a  candidate  for 
the  legislature.  He  is  recognized  as  one  of 
the  ablest  of  the  younger  members  of  the 
bar,  and  as  a  corporation  lawyer  he  has  few, 
if  any,  equals  of  his  age.  He  is  secretary  of 
the  Bar  Association  of  San  Diego,  and  holds 
the  position  of  exalted  ruler  of  San  Diego 
Lodge,  No.  168,  of  the  B.  P.  O.  Elks,  the 
only  fraternal  society  of  which  he  is  a  mem- 
ber.   ._ 

JAMES  L.  GALLAGHER. 

James  L.  Gallagher  was  born  at  Brown's 
Flat,  in  Tuolumne  county,  California,  on  the 
25th  of  April,  1865.  He  has  resided  contin- 
uously in  the  city  and  county  of  San  Francisco 
since  the  year  1869.  Mr.  Gallagher  received 
his  education  in  the  public  schools  of  San 
Francisco,  and  afterwards  became  successively 
a  printer  and  a  stenographer,  working  for  over 
three  years  as  a  printer  and  for  about  ten 
years  as  a  stenographer  and  shorthand  reporter. 
In  1891  Mr.  Gallagher  was  admitted  to  i)rac- 
tice  in  the  Supreme  Court  of  California,  and 
immediately  formed  a  partnership  with  ex- 
Judge  James  G.  Maguire,  late  congressman 
from  the  Fourth  congressional  district,  and 
Democratic  candidate  for  Governor  at  the 
election  of  1898.  In  1893.  when  Judge  Ma- 
guire was  elected  to  congress,  this  partnership 
was  dissolved,  and  Mr.  Gallagher  was  ap- 
pointed assistant  city-  and  county  attorney  of 
the  city  and  county  of  San  Francisco,  and 
served  in  that  position  under  the  Hon.  Harry 
T.  Cresswell  for  over  five  years.  .Miout  llic 
middle  of  1898  Mr.  Cresswell  resigned  the  po- 
sition  of   city   and   county   attorney,    and    Mr. 


(jallagher  was  elected  by  the  board  of  super- 
visors to  fill  the  vacancy.  He  held  the  office 
of  city  and  county  attorney,  and  ex-officio 
member  of  the  election  commission  and  the 
City  Hall  commission,  until  the  end  of  the 
3'ear  1898.  Upon  his  surrendering  the  office 
of  city  and  county  attorney,  Mr.  Gallagher 
formed  his  present  business  association  with 
the  Hon.  James  G.  Maguire,  under  the  firm 
name  of  Maguire  &  Gallagher. 


N.   E.  WRETMAN. 


Niles  Emil  Wretman,  one  of  the  most  able 
and  successful  practitioners  before  the  bar  of 
Santa  Clara  county,  is  younger  in  years  than 
in  honors;  being  born  at  Galesburg,  Illinois, 
in  1873.  He  was  left  an  orphan  at  the  age  of 
two  years,  and  his  life  up  to  the  age  of  eight- 
een was  spent  on  a  farm  near  Andover,  Illi- 
nois. In  January,  1891,  he  came  to  California, 
and  in  September  of  that  year  settled  in  Santa 
Clara   countv.      After   a   course   at   a   business 


college  at  San  Jose,  he  obtained  enxployment 
as  a  stenographer,  utilizing  his  leisure  mo- 
ments in  aciiuiring  a  knowledge  of  the  law. 
His  application  had  its  reward  when  in  1894 
the  Supreme  Court  admitted  him  to  practice 
before  all  the  courts  of  the  State. 

rhe  same  pertinacity  of  pursuit  which  char- 
acterized Mr.  Wretman's  early  studies,  was 
carried  into  his  professional  engagements,  and 
has  won  for  him  a  substantial  place  among 
practitioners  of  the  highest  standing  in  the 
State,  and  a  position  of  prominence  at  the  bar 
of  his  county.  'I'hough  his  most  arduous  hours 
are  passed  in  the  service  of  mining  corpora- 
tions, he  has  figured  successfully  in  many 
other  important  litigations.  He  has  lately 
won  distinction  by  bringing  about  valuable 
settlenu'uls  in  tlie  tangled  skein  involving  the 
affairs  of  the  I'nion  Savings  Bank,  which 
failed  in  1899.  The  affairs  of  this  bank  in- 
volved large  interests,  and  much  of  the  credit 
i)f  their  solution  is  recognized  as  due  to  Mr. 
Wretman's   foresight   and   address. 

lie  is  of  Swedish  extraction  and  speaks  the 
Sea udui avian    languages. 


1092 


History  of  the  Bench  and  Bar  of  California. 


^$m  ^ 


CLINTON    L.    WHITE. 


ARTHUR    M.    SEYMOUR. 


The  above  are  portraits  of  the  members  of  the   firm   of   White   «&   Seymour,   Attorneys   at 
Law,  Sacramento,  California. 


WILLIAM  GRANT. 
\Villiam  Grant,  a  well-known  lawj'er  of  San 
Francisco,  was  born  in  that  city,  September 
2,  1862.  He  is  of  Irish-Scotch  extraction  on 
his  father's  side,  his  mother  being  of  a  New 
England  family,  of  English-Scotch  descent. 
His  father  was  a  dealer  in  marble,  granite  and 
building  stones,  in  San  Francisco,  from  1849 
to  1868,  retiring  then  from  business,  and  dying 
in  1880.  Mr.  Grant  was  educated  in  the  San 
Francisco  public  schools,  and  was  graduated 
from  the  State  University.  He  began  practice 
in  San  Francisco  immediately  after  his  ad- 
mission to  the  bar  of  the  State  Supreme 
Court,  in  April,  1884.  The  prominent  law- 
firm.  Mullaney,  Grant  &  Gushing,  of  which  he 
is  a  member,  has  been  in  existence  now  many 
years,  and  is  occupied  with  a  large  general 
practice.  . 

I.  G.  ZUMWALT. 
The  district  attorney  of  Colusa  county  was 
born  in  that  county  on  January  24,  1872.  a 
poor  farmer's  son.  His  ancestors  were  of 
German  extraction.  His  parents  removed  from 
Pike   county.   Missouri,   and   settled   in   Colusa 


county,  California,  in  i86g.  They  had  thirteen 
children,  of  whom  eleven  are  living. 

Commencing  with  his  fifteenth  year,  our 
subject  supported  himself  by  working  out  in 
summer;  earning  enough  for  his  education  in 
winter,  and  so  passing  through  school  and  col- 
lege. He  was  graduated  from  Bridgeport 
county  school  in  1888.  and  from  the  Colusa 
High  School  in  1890.  He  continued  his  studies 
at  Pierce  Christian  College  until  he  began 
reading  law.  which  was  in  September,  1892, 
in  the  office  of  U.  W^  Brown  at  Colusa.  In 
October,  1894,  he  was  admitted  to  the  bar, 
and  was  associated  with  Mr.  Brown,  until 
he.  Mr.  Zumwalt.  was  elected  to  the  office  of 
district  attorney,  his  term  as  such  beginning 
on  the  first  of  January,  1899.  His  private 
practice,  already  considerable,  has  doubled 
since  he  entered  upon  his  public  office. 

Mr.  Zumwalt  is  always  courteous,  of  in- 
dustrious habits,  and  his  integrity  is  acknowl- 
edged by  all.  His  professional  attention  has 
been  specially  directed  to  the  civil  department, 
to  which  he  continues  devoted.  He  is  a 
Bryan  Democrat,  and  made  a  campaign  in  the 
great  Nebraskan's  behalf  in  the  fall  of  '96. 


Henry  cNi.    Clement 


History  of  the  Bench  and  Bar  of  California. 


1095 


HENRY    N.    CLEMENT. 

Henry  Newell  Clement  was  born  May  3, 
1841,  at  Bellefontaine,  Logan  county,  Ohio. 
His  parents  removed  to  Muscatine,  la.,  in 
the  same  year,  and  two  years  later  (1843) 
they  located  at  Eddyville,  Iowa,  where  the 
-years  of  his  boyhood  were  spent.  In  1852  at 
II  years  of  age,  he  entered  the  printing  office 
of  the  Eddyville  Free  Press,  where  he  learned 
the  printer's  trade.  He  followed  this  alter- 
nately with  attendance  upon  school,  for  twelve 
years,  and  by  means  of  which  he  worked  his 
way  through  the  law  department  of  the  Uni- 
versity of  Michigan  from  which  institution  he 
was  graduated  with  his  class  in  1866.  Re- 
turning to  his  old  home  at  Eddyville,  he  at 
once  began  to  practice  his  profession,  and  fol- 
lowed it  there  until  1873.  He  then  spent  two 
years  in  travel  with  his  family  in  the  Eastern 
states,  and  came  to  California  in  1875.  and  lo- 
cated at  San  Francisco.  He  came  to  join  his 
cousin.  R.  P.  Clement,  on  the  death  of  the 
latter's  brother,  Jabish  Clement,  and  the  firm 
name  became  R.  P.  &  H.  N.  Clement.  He  was 
thus  connected  until  188.5,  when  he  united  with 
Henry  E.  Highton,  under  the  firm  name  of 
Highton   &   Clement. 

This  association  continued  until  1888,  when 
Mr.  Clement  became  the  senior  member  of  the 
firm  of  Clement.  Cannon,  Kline  &  Stradley. 
Upon  the  graduation  of  his  son,  Jabish  Cle- 
ment, in  1896.  the  firm  of  Henry  N.  &  Jabish 
Clement  was  formed,  which  is  now  in  exist- 
ence. 

He  has  been  identified  with  much  important 
litigation  in  California.  As  attorney  for  the 
San  Francisco  Gas  Light  Company,  he  ap- 
peared in  what  were  known  as  the  "franchise 
cases,"  involving  the  question  of  the  taxation 
of  franchises.  He  was  also  attorney  in  the 
Harbor  Commision  cases,  which  involved 
many  questions  of  wharfage,  dockage,  etc,  but 
more  recently  in  the  cases  involving  the  valid- 
ity of  the  new  charter  of  San  Francisco.  A 
noted  international  case,  known  as  the  Bald- 
win case,  brought  to  establish  a  claim  of 
indemnity  against  the  Republic  of  Mexico 
for  the  murder  of  an  American  citizen  re- 
siding in  Mexico  by  Mexicans,  was  success- 
fully conducted  by  him  through  a  period  of 
eight  years  in  the  state  departments  of  the 
two  governments  until  a  substantial  indenmity 
was  recovered  for  the  widow  of  Mr.  Baldwin, 
llis  briefs  in  this  case  were  spoken  of  with 
liigh  praise  by  Secretaries  Blaine  and  Gresham 
and  Judge  (then  Congressman)  Morrow.  He 
is  recognized  by  the  members  of  his  profes- 
sion as  a  scholarly  lawyer  and  his  briefs  are 
marked  by  logical  precision  alul  cliarness  of 
statement. 

During  the  early  years  of  his  practice  in 
San  Francisco,  Mr.  Clement  devoted  consider- 
able attention  to  magazine  literature,  especially 
by  contributions  to  the  Arp,onaut  and  Cali- 
fornian.  His  articles  on  the  Chinese  question 
were  collected  and  embodied  in  the  report  of 
the  State  senate  committee, — 300.000  copies  of 
which  were  printed  by  the  State  for  distribu- 
tion in  the  East.  He  took  an  active  part  in 
oppositng  the  adoption  of  the  constitution  of 
of  taxation  inaugurated  by  that  instrument 
1870,  and  his  arguments  against  the  system 
were    printed    and    circulated    throughout    the 


State  as  campaign  documents  against  the  adop- 
tion of  that  constitution. 

Mr.  Clement  is  an  ardent  student  of  mu- 
nicipal government  and  a  prominent  advocate 
of  civil  service  reform.  He  was  elected  a  mem- 
ber of  the  last  two  boards  of  freeholders  of 
San  Francisco,  the  latter  of  which  framed  the 
charter  for  San  Francisco,  which  was  adopted 
by  the  people  and  ratified  by  the  legislature. 
He  was  also  a  member  of  the  Committee  of 
One  Hundred,  which  was  largely  instrumental 
in  bringing  about  the  adoption  of  that  charter, 
an  instrument  which  admittedly  embodies  the 
most  advanced  theories  of  municipal  govern- 
ment that  have  yet  been  put  into  practice. 

Mr.  Clement  was  one  of  the  Republican  can- 
didates for  Judge  of  the  Superior  Court  in 
1898,  and  was  defeated  with  his  party. 

GUS.  G.  GRANT. 

Colonel  Gus.  G.  Grant  was  born  at  Niles, 
Alameda  county,  California,  in  1867.  He  has 
resided  in  Stockton  since  1882.  His  early  ed- 
ucation was  received  in  the  public  schools  of 
that  city,  and  he  was  afterwards  graduated 
from  the  normal  and  literary  department  of 
the   Stockton   Business    College. 

In  1894  he  entered  the  law  office  of  ex-Gov- 
ernor James  H.  Budd,  and  in  1895  was  admit- 
ted to  practice  in  the  Supreme  Court  of  the 
State  of  California.  He  entered  upon  the 
practice  of  the  profession  at  once. 

In  1897  he  formed  a  law  partnership  with 
Judge  Ansel  Smitli,  who  had  just  retired  from 


the  I)cnch.  The  firm  ui  Smith  &  Oant  con- 
tinued imti!  i8q8.  when  Colonel  Grant  entered 
the  service  of  the  United  States  volunteer 
army  as  Senior  Major  of  the  Sixth  Califor- 
nia U.  S.  V.  Infantry.  His  regiment  was  not 
.sent  to  Manila,  but  was  distributed  about  the 
interior;  the  greater  portion  under  the  com- 
mand of  Colonel  (irant,  being  stationed  in 
command  of  Fort   Point,  near  San    Francisco. 

At  the  close  of  the  war.  Colonel  Grant  was 
mustered  out  with  his  regiment,  and  returned 
to  his  practice.  He  has  been  associated  with 
the  best  men  of  the  bar,  and  at  present  is  the 
attorney  for  some  of  the  oldest  and  most  re- 
liable business  firms  in.  Stockton. 

He  is  a  man  of  ability,  determination  and 
energy,  and  is  distinguished  as  a  public  speaker 
of  force  and  eloquence. 


CITIZENSHIP  OF 
^  CHINAMEN^ 

MARSHALL  S.   W00DW0R7H 


Marshall  B.    Woodnvorth 


e?c;  cV  ^  t^a  cfe  ^3  u<b  gSo  ^  c^ 


HISTORY  of  the 
BENCH  and  BAR 
of  CALIFORNIA 


<^  ejp  op  0^  ^  ^  e^-.  6^  B^  ejp 


CITIZENSHIP  of  CHINAMEN^ 


The  Wong  Kim  Ark  case,  decided  by  the  United  States  Supreme  Court  on 
March  28,  1898,  decides,  for  the  first  time  in  that  tribunal,  the  question  whether 
a  person  born  in  the  United  States  of  foreign  parents  is  a  citizen  of  the  United 
States  under  the  citizenship  clause  of  the  Fourteenth  Amendment.  The  decision 
holds,  substantially,  that  the  language  used  in  the  Fourteenth  Amendment  to  the 
Constitution  is  declaratory  of  the  common-law  doctrine,  and  not  of  the  inter- 
national law  doctrine,  and  that,  therefore,  a  person  born  in  the  United  States  is 
a  citizen  thereof,  irrespective  of  the  nationality  or  political  status  of  his  parents. 
While  the  question  has  arisen  before  and  has  been  referred  to  in  some  of  the 
decisions  of  the  Supreme  Court,  still  it  cannot  be  said  to  have  been  directly 
involved  and  squarely  decided  until  the  present  decision  in  the  Wong  Kim  Ark 
case.  This  case  settles,  once  for  all,  the  question  of  the  citizenship  of  children 
born  within  the  United  States,  whose  parents  are  foreign  subjects  or  citizens. 
While  it  is  the  commonly  accepted  notion,  and  that  generally  entertained  by 
the  profession,  that  all  persons  born  within  the  United  States,  whether  of  foreign 
parents  or  not,  are  citizens,  still  popular  impressions  may  be  common  errors,  and 
are  not  always  to  be  regarded  as  the  safest  tests  of  what  the  law  is.  Whatever 
of  doubt  and  misapprehension  exists  on  the  question  is  because  of  the  existence 
of  two  general  doctrines  or  tests  of  citizenship  by  birth  ;  one,  the  common-law 
doctrine,  which  makes  birth  in  a  country  sufficient  to  confer  citizenship ;  the  other, 
the  doctrine  of  the  law  of  nations,  by  which  the  political  status  of  children  is  fixed 
by  that  of  parents,  irrespective  of  the  place  of  birth.  While  the  question  before 
the  Supreme  Court  was,  what  constitutes  citizenship  of  the  United  States  under 
the  Fourteenth  Amendment,  still  the  peculiar  phraseology  of  the  citizenship  clause 
of  that  Amendment  necessarily  involved  the  further  and  controlling  proposition 
as  to  what  that  clause  was  declaratory  of ;  whether  it  was  intended  to  be  declara- 
tory of  tlie  common-law  or  of  the  international  doctrine.  The  Fourteenth  Amend- 
ment reads  as  follows :  "All  persons  born  or  naturalized  in  the  United  States, 
and  subject  to  the  jurisdiction  thereof,  arc  citizens  of  the  ITnitcd  States  and  of 
the   v^tatc   wherein   they   reside."     The   question,   annuid    which   the   chief   argu- 


*This  article  appeared  in  the  Aiucrican  Law  Rcviezv  for  July-August.  1898.  We  received 
a  copy  from  the  author's  hands,  and  give  it  a  permanent  place  here,  as  heing  a  valuable  con- 
tribution to  the  judicial  history  of  California. — Editor. 


1100  History  of  the  Bench  and  Bar  of  California. 

nicnts  have  centered,  both  by  counsel  in  the  Wong  Kim  Ark  case  and  by  general 
writers  on  the  subject,  is  as  to  the  meaning  of  the  quaHfying  phrase,  "and  subject 
to  the  jurisdiction  thereof."  This  phrase  was  seized  upon  by  the  advocates  of 
the  international  law  doctrine  as  meaning  subject  to  the  "political  jurisdiction" 
of  the  United  States,  and  therefore  as  being  declaratory  of  that  doctrine.  Such 
were  the  views  very  plausibly  maintained  by  Mr.  Geo.  D.  Collins,  who  appeared 
in  the  \\^ong  Kim  Ark  case  as  amicus  curiae.  The  exponents  of  the  common- 
law  doctrine,  on  the  other  hand,  contended,  and,  it  must  be  admitted,  with  supe- 
rior logic,  that  the  Fourteenth  Amendment  was  declaratory,  in  effect,  of  the 
common-law  doctrine.  The  latter  contended  that  the  expression,  "Subject  to  the 
jurisdiction  thereof,"  meant  nothing  more  than  being  subject  to  the  "laws"  of 
the  United  States,  comprehending  such  obedience  as  every  alien  owes  while 
within  the  territorial  limits  of  a  foreign  country.  While  at  this  late  day,  the 
question  as  to  which  of  these  two  doctrines  obtains  in  the  United  States  may 
savor  of  scholastic  disquisition  into  what  should  be  well-settled  law,  still  the 
Supreme  Court  considered  the  question  of  sufficient  importance  and  perplexity 
to  grant  two  hearings,  and  the  elaborate  and  lengthy  opinions,  both  prevailing 
and  dissenting,  indicate  the  labor,  research  and  care  given  to  the  consideration 
of  the  (juestion.  The  fact  that  the  decision  of  the  court  was  not  unanimous  indi- 
cates that  the  question  is  at  least  debatable.  IMr.  Justice  Gray  wrote  the  prevail- 
ing opinion,  which  was  concurred  in  by  all  the  justices  excepting  Mr.  Chief  Jus- 
tice Fuller  and  Mr.  Justice  Harlan,  both  of  whom  dissented.  Mr.  Justice  Mc- 
Kenna,  not  having  been  a  meml)er  of  the  court  when  the  arguments  took  place, 
did  not  participate  in  the  decision. 

The  Wong  Kim  Ark  case  arose  upon  a  writ  of  habeas  corpus  in  the  United 
States  District  Court  for  the  Northern  District  of  California.  The  facts  of  the 
case  were,  briefly,  that  Wong  Kim  Ark  was  born  in  1873  in  the  city  of  San  Fran- 
cisco;  that  his  father  and  mother  were  persons  of  Chinese  descent,  and  subjects 
of  the  Emperor  of  China ;  that  they  were  at  the  time  of  his  birth  domiciled  resi- 
dents of  the  United  States  ;  that  they  continued  to  reside  in  the  Ignited  States 
until  the  year  1890,  when  they  departed  for  China;  that  about  1894,  Wong  Kim 
Ark  niade  a  voyage  to  China  and  returned  to  the  United  States  in  August, 
1895  :  that  he  applied  to  the  collector  of  the  port  at  San  Francisco  for  permis- 
sion to  land,  and  was  denied  such  permission  upon  the  sole  ground  that  he 
was  not  a  citizen  of  the  United  States,  but  that  he  was  a  Chinese  subject,  and, 
being  a  laborer,  was  excluded  by  the  Chinese  Exclusion  Laws.  From  this  refusal 
to  permit  him  to  land,  a  writ  of  habeas  corpus  was  sued  out  in  the  United  States 
District  Court  presided  over  by  Hon.  Wm.  W.  Morrow.  Upon  a  hearing  duly 
had,  that  court  discharged  Wong  Kim  Ark  on  the  ground  that  he  was  a  citizen 
of  the  United  States  by  virtue  of  his  birth  in  this  country,  and  that  the  Chinese 
Exclusion  Acts  were  therefore  inapplicable  to  him.  The  case  was  thereupon 
carried  to  the  I'nitcd  States  Sui:)reme  Court,  which  has  affirmed  the  decision  of 
the  lower  court. 

Mr.  Justice  Gray  thus  stated  the  c[uestion  submitted  for  the  consideration  of 
the  Supreme  Court :  "Whether  a  child  born  in  the  United  States,  of  parents  of 
Chinese  descent,  who,  at  the  time  of  his  birth,  are  subjects  of  the  Emperor  of 
China,  but  have  a  permanent  domicile  and  residence  in  the  United  States,  and  are 
there  carrying  on  business,  and  are  not  employed  in  any  diplomatic  or  official 
capacity  under  the  Emperor  of  China,  becomes  at  the  time  of  his  birth  a  citizen  of 
the  United  States,  by  virtue  of  the  first  clause  of  the  Fourteenth  Amendment  of 
the  constitution,  'All  persons  born  or  naturalized  in  the  United  States,  and  subject 


History  of  tJic  Bench  and  Bar  of  California.  1101 

to  the  jurisdiction  thereof,  are  citizens  of  the  United  States  and  of  the  state 
wherein  they  reside.'  "  Then  follows  a  most  elaborate,  exhaustive  and  able  con- 
consideration  of  the  question  of  citizenship  of  the  United  States.  The  opinion 
contains  an  exceedingly  interesting,  able  and  erudite  review  of  the  entire  ques- 
tion, and  may  well  be  said  to  exhaust  all  the  learning  on  the  subject.  The  opinion 
will  undoubtedly  go  down  to  posterity  as  the  leading  and  pioneer  authority  in 
the  United  States  on  the  question  of  what  constitutes  citizenship  under  the  Four- 
teenth Amendment  to  the  Constitution  of  the  United  States.  It  is  too  lengthy 
to  give  a  detailed  resume  of  it.  The  syllabus  to  the  opinion  published  in  the  Su- 
preme Court  Reporter  indicates  very  clearly  the  rationale  of  the  decision.  It  is 
as   follows : 

"(i)  In  construing  any  act  of  legislation,  whether  a  statute  or  a  constitution, 
regard  is  to  be  had.  not  only  to  all  parts  of  the  act  itself,  and  of  any  former  act 
of  the  same  law-making  power  of  which  the  act  is  an  amendment,  but  also  to  the 
condition  and  the  history  of  the  law  as  previously  existing,  and  in  the  light  of 
which  the  new  act  must  be  read  and  interpreted. 

"(2)  As  the  constitution  nowhere  defines  the  meaning  of  the  word  'citizen 
of  the  United  States,'  except  by  the  declaration  in  the  Fourteenth  Amendment 
that  'all  persons  born  or  naturalized  in  the  United  States,  and  subject  to  the  juris- 
diction thereof,  are  citizens  of  the  United  States,'  resort  must  be  had  to  the 
common  law,  the  principles  of  which  were  familiar  to  the  framers  of  the  con- 
stitution. 

"(3)  Under  the  common  law,  every  child  born  in  England  of  alien  parents, 
except  the  child  of  an  ambassador  or  diplomatic  agent  or  of  an  alien  enemy  in 
hostile  occupation  of  the  place  where  the  child  was  born,  was  a  natural-born 
subject. 

"(4)  The  Fourteenth  Amendment  to  the  constitution,  which  declares  that 
'all  persons  born  or  naturalized  in  the  United  States  and  subject  to  the  jurisdiction 
thereof  are  citizens  of  the  United  States  and  of  the  state  wherein  they  reside,'  is 
affirmative  and  declaratory,  intended  to  allay  doubts  and  settle  controversies,  and 
is  not  intended  to  impose  any  new  restrictions  upon  citizenship. 

"(5)  It  affirms  the  ancient  rule  of  citizenship  by  birth  within  the  territory 
in  the  allegiance  and  under  the  protection  of  the  country,  including  all  children 
here  born  of  resident  aliens,  except  the  children  of  foreign  sovereigns,  or  their  min- 
isters, or  born  on  foreign  public  ships,  or  of  enemies  during  a  hostile  occupation, 
and  children  of  Indian  tribes  owing  direct  tribal  allegiance.  It  includes  the  chil- 
dren of  all  other  persons,  of  whatever  race  or  color,  domiciled  within  the  United 
States. 

"(6)  The  Fourteenth  Amendment  to  the  constitution,  in  the  declaration  above 
cited,  contemplates  two  sources  of  citizenship,  and  two  only,  birth  and  naturali- 
zation. Every  person  born  in  the  United  States,  and  subject  to  the  jurisdiction 
thereof,  becomes  at  once  a  citizen  thereof,  and  needs  no  naturalization.  A  person 
born  out  of  the  jurisdiction  can  only  become  a  citizen  by  being  naturalized,  either 
by  treaty  or  by  authority  of  congress,  in  declaring  certain  classes  of  persons  to  be 
citizens,  or  by  enabling  foreigners  individually  to  become  citizens  bv  proceedings 
by  judicial  tribunals. 

"(7)  At  the  time  of  the  adoption  of  the  Fourteenth  Amendment  of  the  Con- 
stitution, there  was  no  settled  rule  of  international  law,  generally  recognized  by 
civilized  nations,  inconsistent  with  the  ancient  rule  of  citizenship  by  birth  within 
the  dominion. 

"(8)   The  laws  conferring  citizenship  on  foreign-born  children  of  citizens  do 


1102  History  of  the  Bench  and  Bar  of  California. 

not  supersede  or  restrict,  in  any  respect,  the  established  rule  of  citizenship  by  birth. 

"(9)  Before  the  Civil  Rig;hts  Act,  or  the  Fourteenth  Amendment  to  the  Con- 
stitution, all  white  persons  born  within  the  sovereignty  of  the  United  States, 
whether  children  of  citizens  or  of  foreigners,  excepting  only  children  of  ambas- 
sadors or  public  ministers  of  a  foreign  government,  were  natural-born  citizens  of 
the  United  States. 

"(10)  The  refusal  of  congress  to  permit  the  naturalization  of  Chinese  persons 
cannot  exclude  Chinese  persons  born  in  this  country  from  the  operation  of  the 
constitutional  declaration  that  all  persons  born  in  the  United  States,  and  subject 
to  the  jurisdiction  thereof,  are  citizens  of  the  United  States. 

"(11)  Chinese  persons  born  out  of  the  United  States,  remaining  subjects  of 
the  Emperor  of  China,  and  not  having  become  citizens  of  the  United  States,  are 
entitled  to  the  protection  of  and  owe  allegiance  to  the  United  States  so  long 
as  they  are  permitted  by  the  United  States  to  reside  here,  and  are  'subject  to  the 
jurisdiction  thereof,  in  the  same  sense  as  all  other  aliens  residing  in  the  United 
States ;  and  their  children  'born  in  the  United  States'  cannot  be  less  'subject  to  the 
jurisdiction  thereof." 

"(12)  A  child  born  in  the  United  States,  of  parents  of  Chinese  descent,  who, 
at  the  time  of  his  birth,  are  subjects  of  the  Emperor  of  China,  but  have  a  perma- 
nent domicile  and  residence  in  the  United  States,  and  are  there  carrying  on 
business,  and  are  not  employed  in  any  diplomatic  or  official  capacity  under  the 
Emperor  of  China,  becomes,  at  the  time  of  his  birth,  a  citizen  of  the  United 
States." 

In  arriving  at  the  conclusion  that  Wong  Kim  Ark  was  a  citizen  of  the  United 
States,  although  born  in  this  country  of  foreign  parents,  the  court  uses  the  follow- 
ing language :  "The  foregoing  considerations  and  authorities  irresistibly  lead  us 
to  these  conclusions :  The  Fourteenth  Amendment  affirms  the  ancient  and  funda- 
mental rule  of  citizenship  by  birth  within  the  territory,  in  the  allegiance  and  under 
the  protection  of  the  country,  including  all  children  here  born  of  resident  aliens, 
with  the  exceptions  or  qualifications  (as  old  as  the  rule  itself)  of  children  of 
foreign  sovereigns  or  their  ministers,  or  born  on  foreign  public  ships,  or  of  enemies 
within  and  during  a  hostile  occupation  of  part  of  our  territory,  and  with  the  single 
additional  exception  of  children  of  members  of  the  Indian  tribes  owing  direct 
allegiance  to  their  several  tribes.  The  amendment,  in  clear  words  and  in  manifest 
intent,  includes  the  children  born,  within  the  territory  of  the  United  States,  of 
all  other  persons,  of  whatever  race  or  color,  domiciled  within  the  United  States. 
Every  citizen  or  subject  of  another  country,  while  domiciled  there,  is  within  the 
allegiance  and  the  protection,  and  consequently  subject  to  the  jurisdiction,  of 
the  United  States.  His  allegiance  to  the  United  States  is  direct  and  immediate. 
and,  although  but  local  and  temporary,  continuing  only  so  long  as  he  remains 
within  our  territory,  is  yet  in  the  words  of  Lord  Coke,  in  Calvin's  Case,  'strong 
enough  to  make  a  natural  subject,  for  if  he  hath  issue  here,  that  issue  is  a  natural- 
born  subject;'  and  his  child,  as  said  by  Mr.  Binney  in  his  essay  before  quoted, 
'if  born  in  the  country,  is  as  much  a  citizen  as  the  natural-born  child  of  a  citizen, 
and  by  operation  of  the  same  principle.'  It  can  hardly  be  denied  that  an  alien  is 
completely  subject  to  the  political  jurisdiction  of  the  country  in  which  he  resides 
— seeing  that,  as  said  by  Mr.  Webster,  when  secretary  of  state,  in  his  report  to  the 
President  on  Thrasher's  ca.se  in  1851.  and  since  repeated  by  this  court,  'inde- 
pendently of  a  residence  with  intention  to  continue  such  residence ;  independently 
of  any  domiciliation ;  independently  of  the  taking  of  any  oath  of  allegiance  or  of 
renouncing  any  former  allegiance,  it  is  well  known  that,  by  the  public  law,  an 


History  of  the  Bench  and  Bar  of  California.  1103 

alien,  or  a  straiig^er  born,  for  so  long  a  time  as  he  continues  within  the  dominions 
of  a  foreign  government,  owes  obedience  to  the  laws  of  that  government,  and 
may  be  punished  for  treason,  or  other  crimes,  as  a  native-born  subject  might  be, 
unless  his  case  is  varied  by  some  treaty  stipulations.' 

"To  hold  that  the  Fourteenth  Amendment  of  the  Constitution  excludes  from 
citizenship  the  children,  born  in  the  United  States,  of  citizens  or  subjects  of  other 
countries,  would  be  to  deny  citizenship  to  thousands  of  persons  of  English, 
Scotch,  Irish,  German  or  other  European  parentage,  who  have  always  been  con- 
sidered and  treated  as  citizens  of  the  United  States." 

The  dissenting  opinion  is  elaborately  drawn  and,  for  the  most  part,  may  be 
said  to  be  predicated  upon  the  recognition  of  the  international  law  doctrine.  But 
the  error  the  dissent  apparently  falls  into  is  that  it  does  not  recognize  that  the 
United  States,  as  a  sovereign  power,  has  the  right  to  adopt  any  rule  of  citizenship 
it  may  see  fit,  and  that  the  rule  of  international  law  does  not  furnish,  ex  proprie 
vigorc,  the  sole  and  exclusive  test  of  citizenship  of  the  United  States,  however 
superior  it  may  be  deemed  to  the  rule  of  the  common  law.  It  further  does  not 
give  sufificient  weight,  in  interpreting  the  Fourteenth  Amendment,  to  the  doctrine 
which  was  prevalent  in  this  country  at  the  time  of  the  adoption  of  the  constitu- 
tion and  of  the  amendment  in  question,  which  was  undoubtedly  that  of  the  com- 
mon law,  and  not  of  international  law. 

In  conclusion,  it  may  be  said  that  the  decision  sets  at  rest  whatevet  of  doubt 
may  have  been  formerly  entertained  on  the  proposition.  It  conclusively  answers 
the  advocates  of  the  international  law  doctrine.  With  respect  to  the  superiority 
of  the  international  law^  doctrine  over  that  of  the  common  law,  it  may  be  conceded 
that  while  the  rule  of  international  law,  that  the  political  status  of  children  fol- 
lows that  of  the  father,  and  of  the  mother,  when  the  child  is  illegitimate,  may  be 
more  logical  and  satisfactory  than  that  of  the  common  law,  which  makes  the 
mere  accidental  place  of  birth  the  test ;  still  if  the  Fourteenth  Amendment  is 
declaratory  of  the  common  law  doctrine,  it  is  difficult  to  see  what  valid  objection 
can  be  raised  thereto,  nor  how  the  subject  of  citizenship  of  the  United  States 
can  be  deemed  to  be  governed  by  the  rule  of  international  law  in  the  absence 
of  an  express  adoption  of  that  rule,  any  more  than  it  could  be  governed  bv  the 
law  of  France,  or  of  China. 

MARSHALL  B.  IVOODIVORTH. 

v^an  Francisco,  Cal. 


EARLY  BENCH  AND 
BAR  OF  SAN  JOSE 

JOHN  E.   RICHARDS 


/.    E.    Richards 


t^(^(^(^t^e)J£c^Gl!bdS^^ 


HISTORY  of  the 
BENCH  and  BAR 
of  CALIFORNIA 


9^epc^e^6^6jpe;pcpe(ney. 


The  EARLY  BENCH  and  BAR  of 
SAN  JOSE 


I  have  undertaken  to  prepare  a  sketch  of  the  Bench  and  i!ar  of  San  Jose 
from  the  era  of  the  American  Alcaldes  inclusive  down  to  a  time  when  well- 
established  institutions  and  forms  of  legal  procedure  supplanted  the  ruder  and 
freer  methods  of  pioneer  days.  The  purpose  which  moves  me  to  this  con- 
genial task  is  the  preservation  of  those  traditions,  reminiscences,  anecdotes  and 
incidents  which  now  rest  mainly  in  the  memories  of  the  members,  and  especially 
the  pioneers,  of  the  profession ;  and  which,  as  time  and  fate  afifect  their  number, 
are  in  danger  of  being  lost.  This  fund  of  personal  recollection  is  too  rich  in 
humor  and  in  wisdom  to  go  down  into  forgetfulness.  If  the  product  of  my 
leisure  can  but  preserve  a  modicum  of  this  wealth  with  somewhat  of  its  original 
luster,  I  shall  deem  the  time  spent  in  its  collection  not  entirely  thrown  away. 

THE  AMERICAN   ALCALDES. 

Old  John  Burton,  Capitan  Viejo,  the  natives  called  him,  was  the  first  Ameri- 
can alcalde  of  the  pueblo  of  San  Jose.  He  was  appointed  to  the  office  by  Captain 
Montgomery,  rnilitary  commandant  of  the  northern  district  of  California,  on 
October  19,  1846,  about  three  months  after  Captain  Thomas  Fallon  had  hoisted 
the  Stars  and  Stripes  in  front  of  the  Juzgado.  The  old  alcalde  was  a  pioneer  of 
the  pioneers.  He  had  deserted  from  a  New  England  merchantman  away  back 
in  1830,  and,  coming  to  the  pueblo  of  San  Jose,  had  married  a  Mexican  woman, 
assumed  the  title  of  captain,  and  lived  an  easy  existence  among  the  natives  until 
disturbed  by  the  American  occupation.  He  was  a  native  of  Massachusetts,  but 
he  seems  to  have  neglected  those  o])portunities  for  book  learning  which  that  home 
of  culture  afforded.  He  was  a  man,  however,  of  considerable  common  sense,  is 
reputed  to  have  been  very  honest  and  to  have  had  the  esteem  and  confidence  of 
the  native  population.  The  office  of  alcalde  required  these  qualities  in  an  emi- 
nent degree  just  at  that  time  when  the  loose  garments  of  Mexican  rule  were 
being  replaced  with  the  close-fitting  fabric  of  American  institutions.  The  alcalde's 
courts  of  California  had.  prior  to  the  change  in  government,  possessed  a  very 
wide  and  c|uite  undetermined  jurisdiction  and  been  conducted  with  a  freedom 
from  the  formalities  of  jurisprudence  which  was  primitive  in  the  extreme.  Al- 
calde Burton  continued  to  exercise  the  jurisdiction  of  his  predecessors  with  much 
the  same  laxity  in  forms.  No  fusty  lawyers  ever  profaned  the  sacred  precincts 
of  Alcalde  Burton's  Juzgado  to  either  hinder  or  hasten  his  judgments  with  pleas 
-or  writs  sustained  by  musty  precedents.     There  was  a  patriarchal  simplicity  a])out 


1108  History  of  the  Bench  and  Bar  of  California. 

the  administration  of  justice  in  Alcalde  Burton's  court.  The  old  Juzg-ado  stood 
in  the  center  of  what  is  now  known  as  Market  street,  at  its  intersection  with 
El  Dorado.  It  was  a  low  adobe  buildin^^  divided  into  three  compartments — the 
alcalde's  court,  the  smaller  rooms  for  the  clerk  of  the  court,  and  the  calaboose. 
A  picture  of  this  structure  is  to  be  found  in  Hall's  "History  of  San  Jose."  There 
old  Captain  Burton  sat  and  administered  justice  in  his  own  original  way,  follow- 
ing- somewhat  loosely  the  forms  of  the  Mexican  law  relating  to  alcaldes'  courts. 
The  method  of  procedure  was  as  interesting  as  it  was  unique.  Every  grievance 
which  a  complainant  had  against  a  person  for  which  he  had,  or  hoped  to  have, 
a  legal  remedy,  he  carried  to  the  alcalde  and  orally  stated  his  case.  Thereupon 
Alcalde  Burton  called  his  aqtiazil,  or  constable,  and  delivering  to  him  his  silver- 
headed  cane,  as  the  symbol  of  his  authority,  directed  him  to  bring  the  person 
against  whom  the  complaint  was  urged  before  the  alcalde.  The  cane  was  an 
important  part  of  the  judicial  system.  It  was  the  I'ara  de  jnsticia,  or  "stafif  of 
justice."  and  in  the  hands  of  the  aquacil  it  symbolized  the  State,  bearing  the 
alcalde's  silver-headed  cane  before  him,  the  aqua::il  sought  out  the  defendant 
and  holding  up  the  stafif  delivered  his  oral  summons  to  appear  immediately  at 
the  Juzgado.  The  defendant  never  disobeyed  the  command  of  the  alcalde,  but 
came  at  once  before  him.  When  he  arrived,  the  complainant  was  sent  for  and 
the  parties  met  in  the  presence  of  the  alcalde.  What  was  technically  called, 
what  in  fact  was,  "an  altercation"  then  ensued  between  the  parties.  The  alcalde 
sat  and  heard  their  dispute  and  endeavored  to  adjust  their  differences  and  strike 
a  balance  of  justice  between  them  upon  their  own  statement  of  facts.  Very 
frequently  he  was  successful  and  a  sort  of  compromise  judgment  was  rendered 
at  once.  When,  however,  the  parties  were  too  widely  apart  for  compromise 
the  cause  proceeded  as  follows :  Each  party  chose  an  arbitrator,  and  these  two 
buenos  hombrcs,  as  they  were  termed,  sat  with  the  alcalde  and  heard  the  evidence 
in  the  case.  If,  then,  they  and  the  alcalde  could  agree  upon  a  judgment,  it  was 
rendered  accordingly,  l)ut  if  not,  the  alcalde  dismissed  the  buenos  Iio»!bres.  and 
decided  the  case  himself.  So  ran  the  wheels  of  justice  in  Alcalde  Burton's  Juz- 
gado. 

The  record  whicli  old  John  Burton  kept  of  his  cases  was  a  very  meagre  one, 
and  hence  a  large  mass  of  interesting  court  notes  have  been  lost  to  us  witli  the 
passage  of  the  years.  Some  few  recorded  cases  there  are,  and  in  the  recollection 
of  our  pioneers  a  few  more  remain  to  illustrate  the  imique  character  of  primitive 
justice  here.  From  among  the  ancient  documents  reposing  in  our  city  archives 
the  following  case  has  been  exhumed  and  translated  for  this  sketch.  Pedro  Mesa 
was  accused  of  stealing  Thomas  Jones'  horse.     The  record  reads  : 

"Territory  of  California  vs.  Pedro  Mesa — May  I,  1847.  The  parties  having 
appeared  and  the  case  entered  into,  after  weighing  the  case  and  taking  the  testi- 
mony, judgment  is  rendered  that  defendant  sliall  ])ay  a  fine  of  $5  and  $<)  for 
saddling  the  horse,  and  costs  of  court  taxed  at  $4.75  ;  $2  for  the  guard."  Alcalde 
lUirton  evidently  did  not  regard  horse-stealing  as  a  very  serious  offense,  and  does 
not  seem  to  have  visited  upon  it  a  sufficient  penalty  to  make  the  avocation  unprof- 
itable. It  is  curious  to  nf)te  that  .\lcalde  I5in-ton  records  himself  as  "weighing 
the  case  and  taking  the  testimony."  It  would  appear  from  all  that  we  can  learn 
that  it  was  the  mental  habit  of  the  old  Captain  to  weigh  the  case  first  and  make 
u])  his  mind  about  it.  and  then,  as  a  mere  formality,  "take  the  testimony." 

Another  of  Alcalde  Burton's  decisions  has  survived  the  tooth  of  time.  Juan 
Lcsaldo  and  his  wife  did  not  agree  and  yet  had  hardly  reached  that  point  where 
thev  agreed  to  disagree.     Juan,   therefore,  laid  before  the  alcalde  a  complaint. 


History  of  the  Bench  and  Bar  of  California.  1109 

of  which  with  the  subscciuent  proccediiig-s  the  following  record  remains  :  "Juan 
Lesaldo  vs.  Maria  de  los  Naves.  On  complaint  of  plaintifif  that  defendant,  his 
wife,  he  believes  is  about  to  abscond,  he  therefore  claims  that  she  be  brought 
before  the  court  to  show  cause  why  she  w^ill  not  live  with  him.  The  parties  hav- 
ing- appeared  and  the  case  entered  into  April  27,  1847,  it  is  directed  that  they 
be  united  again,  and  if  not  they  shall  be  imprisoned  until  they  consent  to  live 
together.  May  ist.  A  letter  was  sent  to  the  priest  of  Santa  Clara,  who  ordained 
that  they  should  be  compelled  to  live  together.  After  three  days'  time  was  given 
she  still  refused  to  comply.  May  4,  1847.  Defendant  w^as  put  in  prison  until 
she  sliould  comply  with  the  order  of  the  court."  Here  the  record  ends,  and 
whether  Maria  de  los  Naves  was  ever  brought  back  to  the  arms  of  her  spouse 
by  the  stern  rigor  of  the  law  remains  a  problem  wdiich  may  well  be  submitted 
with  "the  lady  or  the  tiger"  to  our  modern  dames  for  a  solution.  So  far  as 
known  the  precedent  set  by  Alcalde  Burton  has  not  been  follow-ed  by  those  who 
have  succeeded  him  in  a  judicial  effort  to  adjust  the  differences  which  have  ever 
arisen  in  domestic  life.  There  are,  however,  a  few  fragmentary  records  of  Bur- 
ton's decisions,  which  show  that  he  foreshadowed  at  least  some  phases  of  our 
modern  law.  On  March  7,  1847,  Alcalde  Burton  dismissed  a  complaint  brought 
by  Gabriel  Castro  against  Antonio  Hernairo  to  recover  the  plaintifif's  winnings 
at  a  horse-race.  It  does  not  appear  whether  Hernairo  was  the  loser  in  the  wager 
or  only  the  stake-holder,  but  if  the  cause  had  been  tried  before  our  present  courts, 
instead  of  before  the  old  alcalde,  the  same  rule  would  be  applied. 

There  are  a  few  other  cases  preserved  in  scant  records,  wdiich,  if  not  yet 
])recedents,  might  well  be  made  so.  In  1847,  P-  Real  complained  before  the 
alcalde  of  "men  who  stand  in  the  church  doors  to  look  at  the  women  as  they  come 
from  mass."  The  alcalde  adjudged  that  it  was  "a  practice  which  should  be 
stopped  in  the  interests  of  religion,  morality  and  public  tranciuillity."  In  another 
case  a  Mexican  was  complained  of  for  selling  liquor,  and  was  tried  without  a 
jury,  for  the  reason,  as  the  alcalde  naively  explains,  that  the  "native  element  of 
the  juries  in  such  cases  refuse  to  convict." 

These  are  about  all  that  remain  to  us  in  either  record  or  tradition  of  the 
causes  which  were  tried  in  Alcalde  Ikirton's  court.  There  are  a  few  others 
which  might  be  told  upon  occasion,  but  which  may  not  be  written  here.  This 
first  of  the  American  alcaldes  held  office  for  a  little  more  than  a  year  when  he 
returned  to  the  otiuin  cion  dig)iitate  from  which  he  had  Ijeen  dragged  into  judicial 
eminence.  He  was  succeeded  by  James  W.  Weeks  in  September.  1847,  '"^'^'l  'i"-' 
by  Charles  White,  (who  had  been  Burton's  clerk)  in  1848.  and  who  in  his  turn 
soon  gave  up  the  office  on  account  of  his  disgust  at  the  rising  tide  of  disorder 
incident  to  tlie  meeting  of  two  civilizations.  Kimball  11.  Himmick  succeeded 
White  in  the  latter  part  of  1848,  and  was  the  last  of  the  .\merican  alcaldes. 

The  ])atriarchal  simplicity  with  wdiich  old  Captain  Burton  administered  justice 
within  the  undefined  but  unquestioned  jurisdiction  of  his  Alcalde's  Court,  it  was 
not  permitted  his  successors  to  enjoy  or  exercise.  The  influx  of  strangers  fol- 
lowing the  westward  course  of  Empire,  disturbed  all  of  the  .Mexican  institutions 
which  had  survived  the  American  occupation,  and  before  tlie  close  of  the  vear 
1848  disorder  ruled  in  quaint  old  Pueblo  of  San  Jose.  Tlu-  passive  vices  of 
Mexican  society,  such  as  gambling,  bull  fighting,  horse  stealing  and  loose  domes- 
tic morals,  became  active  social  sores  as  the  two  civilizations  met  and  mingled 
under  the  new  regime.  C^ses  multiplied  before  the  alcaldes  involving  serious 
oiTenses  against  society  beyond  the  reach  of  the  simple  legal  remedies  of  Captain 
]!urton's  day.     Not  only  did  these  causes  put  to  test  the  efficiency  of  the  alcaldes 


1110  History  of  the  Bench  and  Bar  of  California. 

courts,  but  another  state  of  facts  tugged  at  their  anchorage  in  the  old  Mexican 
forms  and  modified  the  manner  of  conducting  cases  before  them.  The  American 
jurisprudence  forced  itself  into  the  Juzgado  and  insisted  upon  recognition  in  the 
trial  of  causes  involving  the  rights  of  American  citizens.  We  find,  for  example, 
indications  of  trials  by  jury,  even  in  Captain  Burton's  time,  and  these  became 
common  in  cases  before  the  later  alcaldes.  The  common  law  pleading  and  pro- 
cess also  began  to  supplant  the  old  oral  complaint  and  the  vara  de  Jnsticia.  The 
reverence  which  the  natives  were  wont  to  pay  to  the  alcalde  was  not  felt  by  the 
strangers  from  many  lands,  and  both  his  staff  and  his  judgments  were  frequently 
set  at  naught.  It  was  this  evil  condition  of  society  in  1848-9  which  caused  the 
alcaldes  who  succeeded  Burton  to  resign  after  brief  attempts  to  administer  justice 
at  the  Juzgado.  It  was  this  which  called  into  existence  the  "Courts  of  First 
Instance'"  in  California. 

COURTS  OF   FIRST   INSTANCE. 

The  conditions  of  change  and  of  disorder  which  caused  the  alcaldes'  courts  to 
be  insufficient  agencies  of  justice  in  our  early  society  were  not  confined  to  San 
Jose.  All  over  California  the  need  of  a  better  judicial  system  was  felt  with 
increasing  force.  The  alcaldes  themselves  in  various  sections  gave  increase  to 
the  discontent  by  the  inefficiency,  or  worse,  with  which  they  conducted  their 
offices.  In  1849  J-  S.  Ruekle,  writing  to  Governor  Mason  on  the  condition  of 
things  in  San  Jose,  said:  "Matters  which  were  originally  bad  are  growing 
worse ;  large  portions  of  the  population,  lazy  and  addicted  to  gambling,  have  no 
visible  means  of.  support,  and,  of  course,  must  support  themselves  by  stealing 
cattle  or  horses.  Wanted,  an  alcalde  who  is  not  afraid  to  do  his  duty  and  who 
knows  what  his  duty  is."  In  Monterey,  Walter  Colton,  who  was  alcalde,  gained 
the  enmity  of  the  large  gambling  class  in  the  following  way :  Colton  concluded 
that  the  town  of  Monterey  needed  a  public  hall  and  took  this  novel  way  of  raising 
the  revenue  to  build  it.  Whenever  he  would  be  informed  of  a  faro  game  of  any 
size  in  progress,  he  would  take  his  staff  of  justice  and  repair  to  the  scene  of  the 
game.  When  he  thought  the  pile  of  gold  on  the  table  large  enough  to  suit,  he 
would  lay  his  "c'ara  dc  Jnsticia  across  the  pile  and  then  gather  it  in.  Out  of  the 
proceeds  of  this  novel  form  of  judicial  tribute,  Colton  Hall,  which  still  stands 
in  Monterey,  was  built.  l)ut  Alcalde  Colton  lost  caste  with  the  gamblers  of 
Monterey,  and  with  a  lustiness  worthy  of  our  modern  days,  they  clamored  for  a 
change.  It  is  to  San  Francisco,  however,  that  the  credit  is  due  for  having 
precipitated  the  formation  of  "Courts  of  First  Instance"  throughout  California, 
and  the  tale  of  how  this  came  about  forms  an  interesting  story  which  until  now 
has  not  been  told  in  print.  I  have  it  from  one  who  received  it  from  the  lips  of 
old  Governor  Riley  himself,  and  it  is  too  good  to  go  untold.  Soon  after  the 
change  from  Mexican  to  American  rule,  the  town  and  harbor  of  San  Francisco 
began  to  assume  importance  as  a  commercial  center.  In  the  latter  part  of  1848 
it  was  made  a  port  of  entry  and  a  custom-house  was  established  there  which 
became  quite  an  important  affair.  A  good  deal  of  litigation  arose,  and  a  strong 
demand  for  a  better  form  of  government  than  California  then  enjoved.  The 
special  grievance  of  San  Francisco  was  the  loose  administration  of  the  law  in  the 
Alcalde's  Court.  Early  in  1849  the  people  of  San  Francisco  importuned  Con- 
gress urgently  to  establish  a  territorial  government  here,  but  Washington  was  a 
long  way  off  and  Congress  failed  to  respond.  So  the  people  of  San  Francisco, 
thinking  California  ripe  and  ready  for  Statehood,  undertook  to  organize  a  State 
and  to  that  end  sent  out  invitations  to  the  people  to  send  delegates  to  a  conven- 


History  of  the  Bench  and  Bar  of  California.  1111 

tion  to  meet  in  San  Francisco.  It  seems  that  the  idea  of  a  State  was  not  yet 
ripe  in  the  popular  mind,  and  hence  only  a  few  of  the  districts  outside  of  San 
Francisco  responded  to  the  call.  When  the  convention  met  it  proceeded  to  form 
a  sort  of  State,  which  was  called  the  State  of  San  Francisco  and  comprised 
a  territory  which  included  the  young  city,  and  extended  down  the  peninsula  to 
somewhere  in  San  Mateo  county.  They  formed  a  legislative  body,  elected  three 
justices,  abolished  the  office  of  alcalde,  and  of  the  Ayuntmniento,  and  ordered 
the  officials  to  turn  over  their  books  to  the  officers  of  the  new  State.  The  alcalde 
at  that  time  was  T.  M.  Leavenworth  and  he  refused  to  be  abolished  or  to  give 
up  his  books,  whereupon  one  of  the  new  justices,  assisted  by  a  number  of  volun- 
teer deputy  sheriffs,  went  over  to  the  alcalde's  office  and  vi  et  arinis  took  his  rec- 
ords away.  In  the  meantime  Governor  Mason  had  been  relieved  of  his  office  as 
Military  Governor  of  California,  and  General  Bennet  Riley,  his  successor,  arrived 
in  Monterey  while  the  "State  of  San  Francisco"  was  organizing  itself  within  his 
jurisdiction.  To  him  hied  hastily  Alcalde  Leavenworth  on  a  mule,  and  related 
his  tale  of  woe.  Governor  Riley,  according  to  contemporary  accounts,  was  "a 
grim  old  fellow"  who  had  an  impediment  in  his  speech.  He  is,  nevertheless,  also 
described  as  "a  fine  free  swearer."  This  is  not  the  first  instance  I  have  heard 
of  that  Satanic  quality  which  enables  a  man  who  stutters  badly  to  swear  with 
ease.  He  concluded,  from  the  alcalde's  story,  that  the  "State  of  San  Francisco" 
was  a  revolutionary  body,  and  accordingly  he  issued  a  proclamation  so  declaring 
and  commanding  them  to  disorganize.  The  testy  old  Governor  took  his  procla- 
mation to  San  Francisco  himself,  resolved  to  reinstate  Alcalde  Leavenworth  and 
assert  his  authority  there  at  all  hazards.  Let  him  tell  the  story  himself.  'T 
went,"  he  says,  "to  see  my  friend  Liedesdorff  in  San  Francisco,  and  I  said,  Xiedes- 
dorff,  I  want  a  boat  to  take  me  to  Benicia.'  Liedesdorff  furnished  the  boat,  and  I 
went  up  to  Benicia,  where  Commodore  Jones  was  with  his  fleet.  I  says  to  him, 
'Commodore,  I  want  a  sloop  of  war!'  'What  do  you  want  a  sloop  of  war  for?' 
asked  Commodore  Jones.  T  want  it.'  says  I,  'to  take  down  to  San  Francisco  to 
disband  their  government  there.'  Well,  Commodore  Jones  didn't  want  to  give 
me  a  sloop  of  war  at  first  for  fear  I  might  get  him  in  trouble,  but  after  I  had 
assured  him  that  I  didn't  intend  to  fire  a  gun  or  hurt  a  human  being,  he  told  me 
that  the  sloop  of  war  St.  Mary  was  lying  at  Sausalito  and  that  he  would  give 
me  an  order  on  the  captain  to  place  his  vessel  at  my  disposal.  'Write  out  the 
order,'  says  I,  'and  it's  all  I  want.'  So  he  wrote  the  order  for  the  sloop  of  war 
and  I  went  back  to  my  friend  Liedesdorff.  The  people  of  San  Francisco  had  heard, 
in  the  meantime  of  my  jDresence  and  visit  to  Commodore  Jones,  and  were  very 
much  alarmed.  So  they  sent  a  delegation  of  their  new  officials  to  interview 
me.  When  they  arrived  I  assumed  all  of  the  dignity  which  I  could  command. 
They  stated  that  they  had  heard  I  was  here  with  hostile  intentions  and  was  about 
to  employ  force,  and  wished  to  know  the  truth.  I  told  them  that  they  had  organ- 
ized a  revolutionary  government  within  my  jurisdiction,  and  concluded  with  this 
statement :  'I  have  not  come  here  to  fire  a  gun  or  shed  a  drop  of  blood,  but 
T  have  an  order  in  my  pocket  from  Commodore  Jones  for  the  sloop  of  war  St. 
Mary,  and  if  you  damned  rascals  don't  disband  your  government  and  restore 
Alcalde  Leavenworth  his  books  and  his  office  within  twenty-four  hours  I  will 
bring  down  the  slooj)  of  war  upon  you,  blockade  your  port  and  remove  your  cus- 
tom-house to  Alonterey."  "  This  threat  struck  terror  to  their  commercial  hearts, 
and  they  disbanded  forthwith,  and  Leavenworth  was  alcalde  once  more. 

When  Governor  Riley  returned  to  Monterey  after  this  brilliant  coitf'   d'etat 
lie  i)roceeded  to  investigate   tlic   many   complaints   against   the   existing   judicial 


1112  History  of  the  Bench  and  Bar  of  California. 

system  of  Alcaldes'  Courts.  He  found  that  an  urgent  necessity  existed  for  a 
better  judicial  system  and  cast  about  him  for  the  way  to  its  establishment.  He 
examined  the  only  law  book  which  he  could  find  in  Monterey,  which  was  an  old 
Mexican  statute  passed  in  1837,  providing  a  system  of  government  for  California. 
It  had  never  been  carried  into  cfifect  in  the  territory  beyond  the  organization  of 
the  alcaldes'  courts.  Governor  Riley  proceeded  to  organize  the  remainder  of  the 
judicial  system  this  old  statute  called  for,  by  the  creation  of  Courts  of  First 
Instance  throughout  the  territory,  and  by  the  formation  of  a  Superior  Tribunal, 
which  was  a  sort  of  Appellate  Court,  and  sat  at  Monterey. 

With  this  Superior  Tribunal  we  shall  have  little  to  do,  for  it  occupied  a  very 
short  space  in  the  history  of  California  jurisprudence.  The  Courts  of  First  In- 
stance, on  the  contrary,  were  quite  important  factors  in  the  judicial  history.  Their 
jurisdiction  was  both  civil  and  criminal.  They  superseded  the  alcaldes'  courts  in 
all  but  petty  cases.  A  copy  of  the  Mexican  statute  of  1837  showing  in  detail 
the  jurisdiction  and  rules  of  practice  of  Courts  of  First  Instance  is  to  be  found 
in  the  appendix  to  Hall's  History  of  San  Jose. 

It  may  be  interesting  to  notice  one  peculiar  feature  of  the  practice  before  thesfe 
courts.  Article  X  of  the  Mexican  law  above  cited  provides  that  "Xo  complaint, 
either  civil  or  criminal,  involving  simply  personal  injuries,  can  be  admitted  with- 
out proving  with  a  competent  certificate  that  conciliatory  measures  have  been 
attempted  by  means  of  arbiters  (biieuos  honihres)  ;"  and  in  Article  XI  it  is  pro- 
vided that  should  a  formal  complaint  have  to  be  made  which  would  cause  a  liti- 
gious process,  then  "conciliacion"  ought  first  to  be  attempted.  This  effort  at  a 
?ettlement  by  "conciliacion"  was  a  curious  proceeding,  unlike  anything  in  our 
American  law.  I  am  informed  that  a  similar  plan  for  the  settlement  of  disputes 
is  in  vogue  in  Switzerland,  but  with  that  exception  I  have  not  elsewhere  dis- 
covered the  duplicate  of  this  proceeding.  The  "conciliacion"  was  conducted 
before  the  alcalde.  The  parties  appeared  at  the  Juzgado,  each  with  his  biicnos 
hombre  and  the  alcalde,  and  the  arbiters  endeavored  to  effect  a  compromise.  If 
they  succeeded  the  matter  ended  there,  but  if  they  failed  the  alcalde  gave  to  the 
complainant  a  certificate  showing  a  vain  attempt  at  a  "conciliacion,"  as  required 
by  the  law.  He  then  was  entitled  to  carry  his  cause  into  the  Court  of  First 
Instance. 

The  Court  of  First  Instance  was  established  in  San  Jose  in  the  spring  of  1849. 
R.  M.  May  was  the  first  occupant  of  the  Ijench  as  Judge  of  the  Court.  He  was 
shortly  succeeded  by  Judge  Kincaid,  who  remained  upon  the  bench  until  the  court 
was  abolished  by  the  formation  of  the  State. 

With  the  creation  of  these  Courts  of  First  Instance,  the  "genus  lawyer"  began 
to  be  heard  and  seen  in  the  land,  and  litigation  multiplied.  The  pioneer  members, 
the  "Xestors."  so  to  speak,  of  our  bar.  were  Peter  O.  Minor,  C.  T.  Ryland,  Craven 
P.  Hester,  James  M.  Jones,  William  \"an  \'oorhies,  judge  Almoiid,  William  T. 
Wallace,  George  B.  Tingley.  Rufus  .\.  Lockwood,  and  others,  some  of  whom 
lived  in  San  Jose  and  some  of  whom  came  down  from  San  Francisco  when  cases 
required.  The  exact  date  of  the  arrival  of  these  pioneers  of  the  bar  it  would 
l)e  difficult  to  state,  and  I  will  not  attempt  it.  Suffice  it  to  say  they  were  here  and 
made  matters  lively  before  the  Court  of  First  Instance.  The  yarns  which  some 
of  these  old  "Xestors"  told  upon  themselves,  upon  their  clients,  and  upon  each 
other,  would  fill  a  volume.  One  of  the  earliest  cases  tried  before  Judge  Kincaid 
was  the  famous  "mule"  case,  entitled  Caldwell  vs.  Godey.  The  plaintiff'  sued 
the  defendant  for  the  possession  of  a  mule,  which  he  averred  was  his  property. 
The  defendant  denied  the  allegation,  and  the  case  came  on.     Caldwell  produced 


History  of  the  Bench  and  Bar  of  California.  1113 

a  dozen  or  more  reputable  witnesses  who  swore  that  they  had  known  the  plaintiff 
in  Missouri,  where  he  had  owned  the  mule ;  that  they  had  crossed  the  plains 
with  him  when  he  brought  the  mule  to  California ;  that  there  was  no  doubt  about 
the  identity  of  the  animal  as  Caldwell's  mule.  On  the  other  hand,  the  defendant 
produced  as  many  witnesses  equally  reputable,  who  swore  that  they  had  known 
the  defendant  Godey  and  his  mule  in  Texas,  and  that  they  had  come  to  California 
with  the  mule,  and  there  was  no  earthly  doubt  that  this  was  Godey's  mule.  They 
also  swore  that  the  mule  was  branded  with  a  diamond  on  his  hip.  The  Court  was 
sittino-  in  the  old  Juzgado,  and  was  in  a  quandary  indeed.  At  this  point,  John 
Yontz,  the  sheriff  came  into  court  and  asked  his  honor  if  he  should  bring  in  the 
witness.  The  Judge,  all  innocent,  told  the  sheriff  to  "bring  him  in."  The  sheriff 
brought  "him"  in  and  the  witness  was  the  mule.  He  filled  the  court-room  with 
his  presence,  and  the  court  with  righteous  indignation.  "Mr.  Yontz,"  said  his 
honor,  sternly,  "take  that  mule  out  of  here,  sir."  "But,  your  honor  ordered  me  to 
bring  him  in,"  responded  Yontz,  "and  I  obeyed  the  order."  The  scene  was  ludic- 
rous in  the  extreme ;  the  sober  face  of  the  facetious  sheriff ;  the  still  more  sober 
aspect  of  the  innocent  mule ;  the  Judge's  withered  face  pale  with  indignation,  and 
the  countenances  of  the  spectators  red  with  mirth.  The  witness  was  taken  out, 
but  his  introduction  won  the  case  for  the  defendant,  for  there  upon  his  newly 
shaven  hip  appeared  the  diamond  brand  to  which  his  other  witnesses  had  sworn. 

THE    STATE    CONSTITUTION. 

The  history  of  the  formation  of  the  State  Constitution  at  Monterey  in  1849 
is  a  familiar  story.  The  history  of  the  meeting  of  the  first  legislature  in  San  Jose 
is  a  fascinating  but  fading  tradition.  It  has  passed  into  the  chronicles  of  our 
State  as  the  "Legislature  of  a  thousand  drinks."  To  those  who  do  not  know 
the  origin  of  this  designation  it  is  a  term  of  reproach  and  signifies  that  the  first 
legislature  was  a  body  of  drunkenness  and  riot.  This  is  an  error,  which  in  pass- 
ing I  pause  to  rectify.  One  of  the  members  of  this  legislature  was  a  man  of 
exuberant  fancy  and  exaggerated  phrases  and  forms  of  speech.  Whenever  he 
was  thirsty,  which  was  frequently,  he  would  shout  to  his  friends  :  "Come  on, 
boys,  and  let  us  take  a  thousand  drinks."  Hence  the  sentence  which  has  passed 
into  history. 

The  Constitution  ordained  and  the  first  legislature  established  a  complete  sys- 
tem of  courts  which  should  supersede  the  courts  of  the  alcaldes  and  of  First  In- 
stance. These  were  the  District,  County  and  Justices'  Courts,  and  they  were  put 
into  operation  during  the  year  1850.  Judge  John  H.  Watson  was  appointed  the 
nrst  District  Judge  of  the  Third  Judicial  District,  which  included  the  counties  of 
Contra  Costa,  Santa  Clara,  Santa  Cruz  and  Monterey.  J.  F.  Redman  was  our 
first  County  Judge.  The  influx  of  population  into  the  State  had  brought  lawyers 
of  all  degrees  of  excellence  from  all  quarters  of  the  globe.  The  session  of  the  first 
legislature  had  left  a  number  of  lawyers  who  were  its  members  to  increase  and 
adorn  our  local  bar.  There  was  a  large  amount  of  legal  business,  and  in  conse- 
quence the  county  of  Santa  Clara  in  the  early  fifties,  had.  with  the  exception  of 
San  Francisco,  the  largest  bar  in  the  State.  CH  the  many  bright  minds  which 
practiced  law  before  Judges  Watson  and  Redman  and  their  successors  the  follow- 
ing are  a   few  : 

Freeman  McKinncy,  William  T.  Wallace.  F.  1!.  Murdock,  William  Matthews. 
A.  L.  Yates.  F.  K.  Sanford,  Horace  Hawes.  Rufus  A.  Lockwood.  J.  .Alexander 
Yoell,  John  H.  Moore,  Judge  .Almond.  William  Stafford,  William  D.  Howard. 
C.  T.  Ryland,  George  R.  Tingley,  Alexander  Campbell,  .A.  P.  Crittenden,  James 


1114  History  of  the  Bench  and  Bar  of  California. 

M.  Jones,  Lawrence  Archer,  Thomas  Bodley,  Judge  Peckham.  These  are  not 
all,  but  these  will  example  the  early  bar,  and  while  many  of  these  are  gone  forever 
from  our  vision,  from  those  who  remain  the  (fuality  of  the  rest  may  be  estimated. 
I  will  tell  the  stories  of  this  early  bar  in  much  the  same  order  that  they  have 
been  told  to  me. 

Judg-e  Watson  was,  by  profession  a  physician,  who  had  learned  a  sufficient 
smattering  of  the  law  to  secure  a  seat  upon  the  bench,  for  which  place  there  was 
little  competition  among  lawyers  for  the  reason  that  the  salary  was  comparatively 
small,  while  the  fees  at  that  time  were  large  to  the  lawyer  who  was  competent  tcv 
be  Judge.  The  style  of  Judge  Watson's  charges  to  his  juries  was,  therefore,  often 
free  from  legal  verbiage  and  of  legal  principles  as  well,  as  the  following  story  of 
the  case  of  Dean  vs.  AlcKinley  will  illustrate.  The  case  of  Dean  vs.  McKinley  was 
tried  in  Monterey,  and  took  its  origin  in  this  wise :  McKinley  was  a  merchant 
at  Monterey  in  the  "forties."  It  was  part  of  his  business  to  stock  traders  whO' 
were  going  to  the  mines.  Dean  was  one  of  these  traders,  and  he  bought  from 
McKinlev  a  stock  of  goods,  promising  to  pay  him  when  he  returned.  Several 
years  passed  and  Dean  did  not  return  until  after  the  American  occupation.  He 
came  back  "broke"  and  showed  no  disposition  to  pay  McKinley  for  his  goods. 
Finally,  the  latter  w-ent  l)efore  Alcalde  Mariano  Malarin  and  had  Dean  arrested 
and  imprisoned  for  the  debt.  The  Monterey  jail  at  that  time  was  in  no  condition 
to  keep  a  {Prisoner  long  in  against  his  wnW,  but  it  suited  shiftless  William  Dean  to 
stay  there.  He  was  his  own  jailer,  and  when  evening  came  he  would  pull  the 
plug  out  of  the  jail  door  and  go  to  the  fandangos  or  other  places  of  amusement, 
and  after  the  fun  was  over  would  go  back  to  the  jail,  lock  himself  in  and  go  to 
sleep  swearing  "he  would  make  old  McKinley  pay  for  this  false  imprisonment 
of  an  American  citizen."  Well,  when  the  District  Court  was  organized.  Dean 
incited  thereto  by  several  lawyers  on  contingent  fees,  sued  McKinley  for  large 
damages  for  his  alleged  "false  imprisonment."  The  case  came  on  for  trial  with 
a  cloud  of  attorneys  on  either  side.  It  was  a  prolonged  case,  and  when  concluded 
was  argned  at  great  length  by  all  of  the  attorneys.  When  finally  the  cause  was 
submitted  to  the  jury,  Judge  W^atson  squared  himself  about  pompously  and  de- 
livered the   following  charge : 

"Gentlemen  of  the  jury,  as  the  mariner,  returning  to  his  port  after  a  long  sea 
voyage,  is  enabled  to  catch  a  faint  and  fleeting  glimpse  of  the  land  through  the 
mists  and  fogs  which  surround  it,  so  you,  gentlemen  of  the  jury,  may  be  able,  by 
the  aid  of  the  court,  to  catch  a  dim  conception  of  the  facts  of  this  case  through 
the  obscurity  which  the  arguments  of  counsel  have  thrown  around  it.  Gentleiuen 
of  the  jury.  I  will  illustrate  the  merits  of  this  case  to  you  with  a  simile.  I  will 
liken  this  case  to  a  railroad  train.  The  court  is  the  track,  the  attorneys  are  the 
engine,  and  the  client  is  the  grease.  You  all  know,  gentlemen  of  the  jury,  how 
an  engine  will  run  when  it  is  well  greased.  In  fact,  I  have  seen  engines  so  well 
greased  as  to  cause  them  to  'play  such  fantastic  tricks  before  high  heaven  as  made 
angels  weep.'  To  carry  the  simile  further,  gentlemen,  suppose  that  a  railroad 
train  runs  over  and  kills  a  man.  who  is  to  blame?  The  engine,  the  track,  or  the 
grease?  I  think  the  engine,  (k'ntlemen  of  the  jury,  you  will  l)ring  in  a  verdict 
for  the  defendant." 

Judge  Redman,  who  presided  over  the  County  Court,  was  a  good  lawyer,  but 
was  also  a  man  of  many  peculiarities,  of  strong  prejudices  and  of  eccentric  modes 
of  expression.  Some  of  the  lawyers  of  his  court  he  had  a  great  liking  for.  and 
toward  others  he  manifested  dislike  without  apparent  reason.  Among  tlie  former 
class  was  William  T.  \\'allace.  for  whom  he  had  a  strong  affection  and  alwavs 


History  of  the  Bench  and  Bar  of  California.  1115 

out  of  court  called  him  "Billy,  my  boy."  Amon^  the  latter  was  J.  Alexander 
Yoell,  against  whom  frequently  and  unjustly  Redman  showed  his  feeling.  One 
day  after  the  trial  of  a  hotly  contested  case  in  which  Mr.  Yoell  took  a  vigorous 
part,  Judge  Redman  limped  (he  had  a  wooden  leg)  out  of  the  court-room,  lean- 
ing on  Wallace's  arm.  Presently  he  said  in  a  reflective  and  solemn  way,  as 
though  speaking  to  himself:  "It  would  not  be  idolatry."  "What  would  not  be 
idolatry,  Judge?"  asked  Wallace.  "It  would  not  be  idolatry  to  bow  down  and 
worship  him,"  said  the  Judge  in  the  same  reflective  way.  "Worship  whom?" 
asked  Wallace.  "It  would  not  be  idolatry  to  fall  down  and  worship  Yoell,"  re- 
sponded Redman.  "And  why  not?"  said  Wallace.  "Billy,  my  boy,"  said  the 
Judge,  solemnly,  "have  you  forgotten  the  commandment  which  says :  'Thou  shalt 
not  bow  down  and  worship  any  likeness  of  anything  that  is  in  heaven  above  or 
that  is  in  the  earth  beneath,  or  that  is  in  the  waters  under  the  earth.'  Now,  Yoell 
is  not  like  anything  that  is  in  heaven  above  nor  in  the  earth  beneath,  nor  in  the 
waters  under  the  earth,  and  therefore  I'll  be  dashed  if  it  would  be  idolatry  to  fall 
down  and  worship  him." 

Another  member  of  the  early  bar  whom  Judge  Redman  disliked  was  F.  B. 
Murdoch,  who  later  went  into  local  journalism.  Murdoch  had  a  case  of  J.  H. 
Moses  against  somebody,  and  got  a  judgment.  One  of  the  witnesses  in  the  case 
was  named  Moses  Scott,  and  when  Murdoch  came  to  write  his  decree  he  wrote 
the  name  of  the  witness  in  it  by  mistake  for  that  of  the  plaintiff.  Discovering 
his  error  later  on,  he  made  a  motion  before  Judge  Redman  to  set  aside  the  decree 
and  have  entered  an  amended  one.  He  argued  his  motion  at  length,  and  when 
he  had  concluded.  Judge  Redman  rendered  this  decision :  "Mr.  Murdoch,  your 
motion  is  denied.  It  has  long  been  the  well-settled  rule  of  this  court  that  when 
an  attorney  comes  before  this  court  with  a  case  and  burns  himself  he  will  be  com- 
pelled to  sit  on  the  blister." 

Among  the  attorneys  who  practiced  before  Judge  Redman  was  Freeman  Mc- 
Kinney,  whom  all  the  early  pioneers  remember.  He  was  a  little  fellow  with  a 
long  red  beard,  which  came  down  to  his  waist,  and  withal  a  man  of  a  good  deal 
of  force  and  dignity.  One  day  a  fellow  was  arraigned  before  Judge  Redman  for 
horse-stealing.  He  had  no  attorney.  The  Judge  appointed  "Free"  McKinney 
to  defend  him,  with  this  instruction :  "Mr.  McKinney,  the  court  appoints  you  to 
act  as  attorney  for  this  defendant.  You  may  retire  with  him  and  get  his  state- 
ment of  his  case.  You  will  give  the  prisoner  the  best  advice  and  assistance  you 
are  able  in  view  of  the  law,  and  of  the  facts  he  may  give  you."  McKinney  went 
out  with  the  prisoner  to  the  door  of  the  Court-House  and  asked' him  if  he  had  any 
money.  The  fellow  said  he  had  a  fifty-dollar  slug.  "Give  it  to  me,"  said  McKin- 
ney. The  fellow  reluctantly  gave  up  the  slug.  "Now,"  said  McKinney,  "as  a 
matter  of  fact,  you  stole  that  horse,  didn't  you  ?"  The  prisoners  admitted  to  his 
attorney  that  he  did.  "In  that  case,"  said  McKinney,  "1  advise  you  to  get  into 
the  brush  as  fast  as  the  Lord  will  let  you."  The  prisoner  "got."  and  McKinney 
presently  wandered  back  into  the  court-room  and  sat  down.  Soon  the  case  of 
the  horse-thief  was  called.  "Where  is  your  client,  the  jM-isoner.  Mr.  .McKinney?" 
inquired  Judge  Redman.  "1  don't  know.  Your  Honor,"  answered  McKinnev  with 
the  utmost  sang  froid  ;  "the  last  time  I  saw  him  he  was  making  for  the  brush 
about  as  fast  as  he  could  go.""  "Is  it  possible,  sir,"  thundered  the  court,  "that 
you  have  permitted  the  prisoner  to  escape?"  "Your  Honor,"  said  McKinney, 
calmly,  "I  have  obeyed  to  the  letter  the  order  of  this  Court.  Your  Honor  ap- 
pointed me  as  the  attorney  for  the  defendant,  with  the  instruction  that  I  should 
give  him  the  best  advice  I  was  able  in  view  of  the  law  and  the  facts.     The  facts 


1116  History  of  the  Bench  and  Bar  pf  California. 

were,  as  the  defendant  adndtted  to  me,  tlial  lie  stole  the  horse.     The  hest  advice 
I  could  g-ive  was  to  i^et  into  the  hrush." 

"Humph!"  snorted  ludt;e  Redman,  as  McKinney  sat  down  witli  dignity,  "call 
the  next  case." 

The  story  of  how  Jo  Johnson  summoned  Jud^e  Redman  into  court  one  morn- 
inj^,  and  the  penalty  therefor,  is  fresh  in  the  mind  of  more  than  one  of  the  pioneers 
of  the  bar.  Judg-e  Redman  liked  his  tipple,  and  also  would  "buck  the  ti.s^er"  on 
occasion.  The  County  Court  was  held  for  a  season  in  a  l)uildino;  which  stood 
near  the  corner  of  Santa  Clara  street  and  Liffhtston  alley.  .\  saloon  was  across 
the  street  in  which  Judge  Redman  spent  most  of  his  time,  and  where  he  often 
lingered  beyond  the  hour  for  convening  his  court.  One  day  the  assembled  bar 
grew  impatient  at  his  absence.  Freeman  McKinney  called  the  l)ar  to  order  and 
gravely  moved  that  the  bailiff  be  instructed  to  call  "Old"  Redman  at  the  door  of 
the  court  three  times,  and  that  if  he  failed  to  answer  he  be  fined  for  contempt 
of  court.  The  bailiff  was  Jo  Johnson,  and  taking  the  matter  in  all  seriousness, 
he  went  to  the  door,  and  in  a  powerful  voice  called  out :  "Old  Redman  !  (^Id 
Redman  !  Old  Redman  !  If  you  fail  to  answer  you  will  be  fined  for  contempt  of 
court."  The  stentorian  tones  of  Bailiff  Johnson  penetrated  to  the  room  where 
Judge  Redman  was  seated  at  his  game  of  cards.  He  deliberately  finished  the 
game,  and  then  the  lawyers  heard  the  uneven  thump  of  the  Judge's  wooden  leg 
as  he  crossed  the  street.  He  entered  the  court-room  slowly,  ascended  the  bench 
with  dignitv,  and  then  said  with  judicial  serenity:  "Mr.  Clerk,  enter  a  fine  of 
.$75  against  Jo  Johnson,  for  contempt  of  this  court."  When  Jo  Johnson  afterward 
told  this  story  he  always  ended  it.  in  an  injured  tone,  with  the  statement:  "The 
worst  of  it  was  that  the  blanked  old  fool  made  me  pay  that  fine." 

Apropos  of  Judge  Redman's  social  infirmities,  the  following  story  is  told  as  an 
actual  fact :  The  bar  became  tired  of  the  Judge's  lapses  and  eccentricities,  and 
at  last  felt  called  upon  to  request  him  to  resign.  The  request  was  signed  by  every 
member  of  the  bar  in  the  county,  and  was  served  one  evening  upon  the  Judge. 
The  next  morning  his  court-room  was  full  of  lawyers  to  see  what  effect  their  peti- 
tion would  have  u])()n  Judge  Redman.  The  Judge  entered  the  room,  perfectly 
sober  and  with  a  sad  and  contrite  expression  upon  his  face.  He  walked  with 
halting  step  down  the  aisle  and  awakened  a  feeling  of  pity  in  the  breasts  of  several 
who  had  signed  the  request.  The  court  opened  with  the  customary  "Hear  ye.' 
and  the  venerable  form  of  the  Judge  arose  from  the  bench.  He  looked  timidly 
around  as  though  searching  for  a  friend  and  then  in  flattering  tones  addressed 
the  bar :  "Gentlemen  of  the  FJar."  he  said,  "last  night  I  received  a  petition  from 
you.  signed  by  all  of  your  number,  couched  in  respectful  language  and  setting 
forth  certain  reasons  why  I  should  tender  my  resignation  as  Judge  of  this  court. 
Conscious  of  my  many  infirmities  and  realizing  the  necessity  of  a  pure  judiciary, 
throughout  the  silent  hours  of  the  past  night  I  have  given  to  your  ]:)etition  painful, 
and  T  may  add.  prayerful  consideration.  I  feel,  gentlemen,  that  you  have  acted 
from  a  high  sense  of  duty  in  this  matter  (here  the  eyes  of  the  members  of  the  bar 
began  to  moisten  with  tears),  and  in  responding  to  your  petition  requesting  my 
resignation.  I  would  simply  say  (here  the  Judge  straightened  up  and  altered  his 
tone)  that  T  will  see  you  all  in  hell  first,  and  then  T  won't  resign.  Mr.  Clerk,  call 
the  next  case." 

It  was  one  of  Judge  Redman's  infirmities,  if  it  be  such,  to  be  fond  of  horse 
racing,  and  to  bet  freely  on  his  favorite.  Horse  races  were  very  frequent  in  the 
early  fifties,  and  Judge  Redman  generally  contrived  to  make  the  sessions  of  his 
court  conform  to  the  time  of  the  race.     One  dav  a  cause  was  on  for  arsrument 


History  of  the  Bench  and  Bar  of  California.  1117 

in  his  court  wherein  John  H.  Moore  represented  one  side,  and  a  San  h'rancisco 
lawyer  the  other  side  of  the  controversy.  A  race  was  coming-  off  that  day.  Judge 
Redman  had  Httle  difficulty  in  ])ersuading  Aloore  to  submit  the  case  without  argu- 
ment, in  order  that  both  court  and  counsel  might  attend  the  race.  The  San  Fran- 
cisco attorney,  however,  insisted  on  arguing  his  side  of  the  case.  During  the 
first  portion  of  his  speech  Judge  Redman  listened  patiently,  but  as  the  hour  for 
the  race  approached  the  Judge  became  fidgetty  and  cast  anxious  glances  at  the 
hands  of  the  clock  with  increasing  frequency.  At  last,  when  the  hands  of  the 
clock  had  all  but  reached  the  hour  of  the  race,  the  attorney  closed  his  si)ecch. 
As  he  sat  down  the  court  hurriedly  arose  and  without  a  break  uttered  the  follow- 
ing sentence:  "I  will  take  this  case  under  advisement  until  lo  o'clock  tomorrow 
morning.  This  court  is  adjourned.  Moore,  I'll  bet  you  $TOO  the  black  filly  wins 
the  race." 

One  of  the  most  celebrated  cases  of  Judge  Redman's  court  was  the  trial  of  a 
mulatto  girl  named  Minda  Johnson,  for  grand  larceny,  in  1852-3.  "Mindy"was 
a  very  good-looking  girl  of  ripe  charms  and  quite  popular  among  the  bloods  of 
the  bar.  It  was  even  reported  that  Judge  Redman  had  a  weakness  for  "Mindy." 
She  was  by  vocation  a  cook  and  washerwoman,  and  one  day  fell  from  grace  to 
the  extent  of  stealing  some  articles  of  clothing  and  a  carpet-sack  with  $300  in 
money  from  the  premises  of  a  man  named  White.  The  theft  was  discovered  and 
"Mindy"  was  arrested  and  indicted.  In  those  days  grand  larceny  was  a  capital 
offense.  The  evidence  was  clear  and  the  girl's  own  confession  sealed  her  fate. 
She  was  tried  before  Judge  Redman  and  convicted.  The  verdict  of  the  jury  was 
recorded,  and  the  moment  for  her  sentence  came.  Judge  Redman  was  at  his  wits' 
end  for  an  excuse  to  save  her,  but  he  had  none.  "Mindy,"  said  the  Judge,  with 
assumed  severity,  "stand  up."  Mindy  stood  up.  "You  have  been  indicted. 
Mindy,"  said  His  Honor,  "for  the  crime  of  grand  larceny,  tried  by  a  jury  of  your 
fellow-men  and  found  guilty  of  the  charge.  Have  you  any  cause  to  show  why 
the  judgment  of  the  court  should  not  be  pronounced  against  you?  Hey!"  At 
this  moment  Freeman  McKinney.  who.  with  William  T.  Wallace,  had  been 
"Mindy 's"  attorneys,  arose,  and  with  much  dignity  moved  the  court  for  arrest 
of  judgment,  upon  the  ground  that  it  had  been  shown  in  evidence  that  "Mindy" 
was  brought  to  California  by  a  man  named  Clarkson  as  a  slave,  and  had  never 
been  manumitted.  That  as  a  slave  she  was  property,  and  that  as  property  she 
could  not  commit  grand  larceny.  "Ah !"  said  Judge  Redman  with  a  sigh  of 
infinite  relief.  "That's  the  point  which  the  court  had  in  mind  during  the  wliole 
trial  of  this  case,  but  did  not  want  to  suggest  to  counsel  for  tlic  defendant.  I 
am  glad  to  see,  young  man.  that  you  have  not  forgotten  your  earl\-  training  in 
the  law  nor  failed  to  burn  the  midnight  oil  in  this  case.  The  point  is  well  taken  ; 
the  defendant  is  discharged,  the  jury  is  dismissed,  and  the  court  is  adjourned." 
District  Attorney  Moore  protested,  but  his  protest  availed  not.  'i'lic  court  re- 
mained adjourned,  and  "Mindy"  went  on  her  way  rejoicing.  The  record  of  this 
remarkable  case,  if  any  one  is  curious  enough  to  consult  it,  is  to  lie  found  in  Rec- 
ord Rook  H,  Court  of  Sessions,  among  the  musty  files  of  the  ofi'ice  of  the  County 
Clerk. 

There  is  another  story  of  judge  Redman,  in  which  John  II.  .Moore  figures  in 
his  capacity  of  district  attorney,  and  I  know  he  wiU  pardon  me  for  telling  it.  In 
1852  the  State  legislature  passerl  a  law  depriving  the  County  Court  of  jurisdiction 
to  try  certain  offenses,  of  which  crand  larceny  was  one.  It  took  some  tune  in 
those  days  to  get  the  official  copies  of  the  statutes  distributed  about  the  State. 
There  was  pending  in  Judge  Redman's  court  about  that  time  a  peculiar  case  of 


1118  History  of  flic  Bench  and  Bar  of  California. 

grand  larceny.  A  somewhat  lawless  limb  of  the  law  had  gone  out  deer  hunting, 
and  failing  to  find  deer,  had  shot  and  carried  home  a  fine  young  heifer  belonging 
to  a  Spaniard,  who,  discovering  the  offender,  had  the  lawless  lawyer  indicted. 
He  retained  Messrs.  Lawrence  Archer  and  William  T.  Wallace  to  defend  him, 
and  the  case  came  on  for  trial.  Of  course.  Archer  and  Wallace  wished  to  clear 
their  client  both  because  he  was  such  and  also  because  he  was  a  fellow  attorney. 
Possibly  Judge  Redman  shared  in  this  desire.  It  was  a  hot  May  morning  some 
weeks  after  the  legislature  had  adjourned  that  the  case  was  called  in  Judge  Red- 
man's court.  District  Attorney  ]^loore  arose  and  asked  that  the  case  be  certified 
to  the  District  Court  in  consequence  of  the  statute  recently  passed  which  took  away 
the  jurisdiction  of  the  County  Court.  "Mr.  Moore,"  said  Judge  Redman,  "what 
evidence  have  you  to  ofifer  showing  that  this  court  has  no  jurisdiction  to  try  this 
case,"  Mr.  jSIoore  respectfully  called  the  attention  of  the  court  to  the  statute 
which  the  legislature  had  passed.  "Jjut  what  proof  do  you  present  of  the  passage 
of  any  such  statute?"  asked  the  Judge.  "Why,  everybody  knows  that  the  statute 
was  passed,"  said  Moore,  "and  here  is  a  newspaper  containing  the  statute  in 
full,"  answered  the  district  attorney.  "Mr.  Moore,"  said  Judge  Redman,  "this 
court  does  not  act  upon  what  everybody  knows  in  depriving  itself  of  a  jurisdic- 
tion it  has  often  exercised,  and,  furthermore,  I  will  inform  you,  sir,  that  a  news- 
paper is  not  evidence  of  anything  in  this  court.  Proceed  with  the  trial."  In  vain 
the  district  attorney  protested  that  the  court  had  lost  its  jurisdiction.  The  court 
insisted  on  going  on  with  the  case,  until  at  last  the  district  attorney,  in  a  rage  at 
the  court,  left  the  room.  This  stopped  the  case,  and  the  attorneys  for  the  defend- 
ant wanted  it  to  go  on.  After  awhile  Judge  Redman  sent  the  sheriff  after  the 
district  attorney  and  again  demanded  that  he  either  go  on  with  the  case  or  produce 
a  certified  copy  of  the  statute.  Mr.  Moore  would  not  do  the  one  and  could  not 
do  the  other,  and  went  off  again  inwardly  (and,  I  suspect,  outwardly)  cursing 
the  court.  Again  and  again  he  was  sent  for,  and  again  and  again  the  same  per- 
formance was  gone  through  by  the  Judge,  and  so  the  hours  of  a  sweltering  day 
moved  on  in  the  old  adobe  Court-House  until  at  last  Judge  Redman,  after  a  last 
vain  attempt  to  get  Moore  to  tr}-  the  case,  commanded  the  clerk  to  enter  upon 
the  minutes  of  the  court  that  the  case  having  been  called  and  the  district  attorney 
having  been  ordered  to  proceed  with  its  trial,  and  having  both  refused  to  do  so 
and  failed  to  show  by  proper  evidence,  that  the  court  had  lost  jurisdiction  of  the 
case,  the  prisoner  was  ordered  discharged.  So  the  lucky  dog  of  a  lawyer  escaped 
justice,  and  Messrs.  Archer  and  Wallace  won  a  bad  case  without  a  struggle. 

Among  the  lawyers  who  sought  success  at  the  San  Jose  bar  in  the  early 
"fifties"  there  were  some  who  found  it  not  and  who  were  compelled  at  last  to 
seek  it  in  other  vocations  and  other  fields  of  labor.  Among  these  was  a  lawyer 
named  William  M.  Stafford — a  great  big  jovial  fellow  who  could  not  somehow 
succeed,  and  had  a  hard  time  to  get  along.  He  lived  in  the  southern  portion  of 
the  city  in  a  tum1)lc-down  tenement  and  came  to  be  known  among  his  fellow 
lawvers  as  "The  Lord  of  Hard  Scrabble."  At  last  he  gave  up  the  struggle  for 
success  at  the  bar,  and  going  down  to  Pajaro  Valley,  engaged  in  farming.  His 
departure  was  celebrated  by  the  publication  of  a  poem  written  by  Colonel  William 
D.  M.  Howard,  a  very  l^right  and  witty  lawyer  of  the  time.  I  extract  from  it  a 
few  stanzas  for  the  purpose  of  illustrating  the  humor  and  merit  of  Colonel  How 
ard's  production : 

THE   LORD  OF   H.VRDSCRABBLE. 

The  Lord  of  Hardscrabble.    Oh  !  where  has  be  gone? 
He  has  vamoosed  his  rancho  and  left  us  forlorn. 


History  of  the  Bench  and  Bar  of  California.  1119 

He  has  gone  to  the  land  where  the  big  "praties"  grow, 
In  the  rich,  loamy  valley  of  the  Rio  Pajaro. 
No  more  shall  his  presence  enliven  our  hall 
in  spring  and  in  summer,  in  autumn  and  fall. 
No  longer  his  eloquent  counsel  we'll  hear, 
When  the  wise  City  Fathers  in  conclave  appear. 
No  more  will  we  gather  those  gems  of  debate 
He  let  fall  when  discussing  affairs  of  the  state, 
With  a  broadcast  of  "palabros"  scattered  around 
Like  the  ripe  fruit  of  autumn  strewn  over  the  ground. 
The  Lord  of  Hardscrabble,  Oh  !  what  will  he  do. 
Where  the  Locos  abound  and  the  Whigs  are  so  few  ; 
For  he's  gone  where  the  cocks  of  Democracy  crow. 
O'er  the  crestfallen  coons  of  Rio  Pajaro. 

In  the  good  old  Whig  cause  he  was  valiant  and  stout, 
Was  never  yet  conquered  and  never  backed  out,        • 
And  Democracy  will  find  itself  in  a  bad  box. 
For  he'll  rally  the  coons  and  be  down  on  the  cocks. 
The  Lord  of  Hardscra])ble's  a  gallant  old  bhidc, 
As  the  sex  will  bear  witness,  both  matron  and  maid  ; 
But  somehow  or  other  he  lived  "an  old  bach," 
Till  the  roof  of  his  head  had  disposed  of  its  thatch. 
Oh  !  why  has  he  ventured  to  go  forth  alone 
With  "no  flesh  of  his  flesh."  no  bone  of  his  bone? 
May  some  kind-hearted  maiden  his  loneliness  bless. 
And  his  fine  portly  shadow  may  it  never  grow  less. 
And  when  of  warm  evenings  he  seeks  his  repose, 
On  his  cot  in  the  house  or  the  ground  out  of  doors. 
May  there  be  no  mosquitoes  around  him  in  flocks. 
No  flies  on  his  nose  and  no  fleas  in  his  socks  ; 
May  his  dairy  be  filled  with  butter  and  cheese 
And  his  acres  abound  with  "frijoles"  and  peas, 
Grain,  onions,  potatoes,  whatever  will  grow 
And  advantage  him  most  in  Ricj  Pajaro. 

The  Lord  of  Hardscrabble,  when  will  he  return? 
His  absence  both  daily  and  nightly  we  mourn. 
And  a  greeting  of  joy  will  resound  in  his  ears. 
When  his  well-known  "Cabeza"  among  us  appears. 
Roll  on.  happy  day,  when  his  jolly  old  face, 
All  radiant  with  smiles,  shall  illumine  this  place; 
With  his  purse  full  of  cash  and  his  heart  full  of  joy, 
Success  to  Hardscrabble,  the  jolly  old  boy. 

TIIK    FIR.ST    COUKT-IIOUSE. 

The  first  Court-Housc  of  the  county  of  Santa  Clara  was  located  on  the  west 
side  of  First  street  hetween  Santa  Clara  and  El  Dorado  streets,  and  ahoiit  oppo- 
site what  was  then  Archer,  hut  is  now  Fountain  alley.  The  lower  part  of  this 
huilding-  was  adohe  and  was  used  as  the  court-room  of  hoth  the  District  and 
the  County  Courts.  The  upper  part  was  frame  with  the  stairway  on  the  outside 
of  the  buildinjj^  and  in  that  portion  were  located  tlie  offices  of  the  slu'rilT  and 
clerks  of  the  court. 

Jud<^-e  Watson  was  the  first  District  jtuli;e,  Judj^e  Redman  the  first  County 
JudjC^e,  E.  K.  Sanborn  the  first  district  attorney,  H.  C.  JMelone  the  first  clerk,  and 
John  Yontz  the  first  sheriff  of  the  county  of  Santa  Clara.  In  this  old  Court- 
House  during-  the  years  1850-1,  these  dii^nitarics  with  the  assistance  of  the  mem- 
bers of  the  bar,  dis]K'nscd  justice  in  their  own  primitive  but  rather  vi,q;orous  way. 
A  great  many  of  the  cases  were  tried  with  the  aid  of  the  jury,  and  out  of  this 
fact  arose  a  curious  custom,  which,  as  is  perhaps  well  known,  has  gone  out  of  date. 
In  the  early  "fifties"  whittling  was  a  great  accom]:)lishment  in  the  average  citizen, 
who  idled  his  time  away  about  the  stores  or  saloons  or  in  the  plaza  of  the  village 


1120  History  of  the  Bench  and  Bar  of  California. 

of  San  Jose.  It  was  proljaljly  from  this  class  of  citizens  that  the  early  juries  were 
mainly  drawn.  When  trials  were  tedious  and  arg-uments  of  counsel  long-  drawn 
out,  what  else  could  be  expected  than  that  the  expert  whittlers  on  the  jury  would 
perhaps  unconsciously  display  their  skill  on  the  benches,  posts  and  railing  of  the 
jury  box.  Sheriff  Yontz,  soon  after  his  ollftcial  duties  began  thought  that  the 
redwood  and  pine  of  the  jury  box  in  the  court-room  were  growing  grotesque 
in  form  and  beautifully  less  beneath  the  expert  jack-knives  of  his  juries.  He 
was  at  a  loss  for  a  time  for  a  remedy,  but  presently  he  found  it,  and  thereafter 
at  every  session  of  the  court,  when  a  jury  was  to  be  drawn,  Sherifif  Yontz  gravely 
brought  into  the  court-room  and  placed  on  the  jury  box  a  large  bundle  of  white 
pine  sticks  cut  to  a  size  and  shape  to  suit  the  whittler's  fancy.  By  this  expedient 
the  sherifif  saved  tl\c  pillars  and  benches  of  the  jury  box  from  a  destruction  which 
was  more  rapid  than  the  tooth  of  time. 

The  courts  did  not  remain  in  this  first  Court-House  very  long  for  the  reason 
tliat  a  more  suitable  and  commodious  building  was  placed  at  their  services.  This 
was  the  State  House  in  which  was  held  the  session  of  the  first  legislature,  and 
which  stood  on  the  east  side  of  Market  square,  a  little  south  of  the  site  of  the  new 
Postofifice  building.  The  building  was  originally  erected  by  Messrs.  Sainsevain 
and  Rochon  in  1849,  ^"^^  ^^'^^  intended  for  a  hotel.  When  the  first  legislature 
was  about  to  meet  the  town  council  looked  about  for  a  suitable  place  for  the  ses- 
sion and  selected  this  structure.  The  rent  asked  for  it  was  $4000  a  month,  which 
seemed  very  high,  and  it  was  finally  deemed  wiser  to  purchase  the  building  out- 
right. Hut  here  a  difficulty  presented  itself.  The  municipality  had  no  money, 
and  the  owners  of  the  building  were  not  willing  to  accept  the  corporation  as  secur- 
ity for  the  purchase  price.  To  the  honor  of  the  city  and  of  its  citizens  be  it 
recorded  that  nineteen  of  our  public-spirited  pioneers  came  forward  and  executed 
their  note  for  $34,000,  with  interest  at  eight  per  cent  per  month  from  date  until 
paid,  as  the  purchase  price  of  the  premises.  How  that  note  was  finally  paid  is 
a  story  that  need  not  be  told.  Suffice  it  to  say  that  the  structure  so  purchased 
was  turned  over  to  the  first  legislature  for  its  session,  and  was  subsequently 
occupied  by  the  District  and  County  Courts,  until  tlie  building  was  destroyed  by 
fire  on  ]\Iarch  29,  1853,  when  the  courts  went  elsewhere  for  their  quarters. 

Any  sketch  of  the  Bench  and  Bar  of  San  Jose  during  the  fifties  would  be 
incomplete  without  a  mention  of  the  "Old  Mansion  House,"  which  was  during 
that  decade  the  leading  hotel  of  the  city,  and  which  especially  was  the  haunt  of 
the  migratory  attorneys  of  the  time.  It  stood  u]>on  the  site  of  the  building  now 
known  as  Music  Hall,  and  cost  about  $100,000.  One  of  the  features  of  the  hotel 
was  a  very  ample  fire-place,  which  its  sitting-room  contained.  How  many  bright 
spirits  met  and  sparkled  in  front  of  that  old  fire-place  with  its  blazing  back  log. 
How  many  of  our  pioneers  read  their  golden  futures  in  its  ruddy  embers.  How 
many  dreams  there  cherished  were  realized,  and  how  many  like  its  own  flames 
faded  into  ashes,  no  one  can  ever  tell.  Only  a  few  of  its  scintillating  sparks  have 
lingered  in  the  memories  of  men.  The  following  is  one  which  I  have  rescued 
from  forgetfulness.  and  since  it  concerns  our  first  District  Judge,  I  tell  it  here. 
Judge  Watson  dearly  loved  a  joke — on  some  one  else — and  even  (a  rare  quality) 
appreciated  a  joke  upon  himself.  He  was  full  of  wit  and  humor  as  he  was  of 
law,  and  both  were  of  that  free  and  easy  kind  peculiar  to  the  times.  The  Judge 
wore  a  beaver  hat  which  cost  him  $16,  and  was  very  proud  of  his  tile.  Among 
his  Mansion  House  acquaintances  were  George  McDougall  and  Ben  Lippincott. 
both  as  full  of  deviltry  as  an  eij;s!;  is  of  meat.  Lippincott  was  a  crack  shot  and 
often  went  hunting.     One  day  these  worthies,  while  off  gunning,  set  a  trap  for 


History  of  the  Bench  and  Bar  of  California.  1121 

Judg-e  Watson.  They  loaded  Lippincott's  gun  with  a  double  charge,  putting 
each  in  separately.  Returning  to  the  Mansion  House,  Lippincott  placed  his  gun 
behind  the  bar  and  went  away.  Presently  Judge  Watson  came  in,  and  McDougall 
engaged  him  in  conversation  upon  Lippincott's  skill  as  a  wing  shot.  "Judge," 
said  McDougall,  "Lippincott  thinks  he's  a  devil  of  a  fine  shot;  now  I  propose 
that  you  and  I  put  up  a  job  on  him.  Let's  withdraw  the  charge  from  his  gun, 
and  when  he  comes  in  you  bet  him  a  box  of  champagne  that  he  can't  hit  your 
hat  thrown  up  in  the  air."  Judge  Watson  thought  that  a  capital  joke.  He  smiled 
all  over  while  the  charge  (one  charge)  was  being  drawn.  His  face  shone  like 
the  gilded  ball  upon  the  Liberty  pole.  Presently  Lippincott  came  in,  and  to  him 
the  Judge  said :  "Ben,  you  are  a  pretty  good  shot  on  the  wing,  in  your  own  mind, 
but  ril  bet  you  a  box  of  champagne  you  can't  take  your  gun  there  and  hit  my  hat 
as  I  throw  it  up  in  the  air."  "Fll  take  that  bet,"  said  Lippincott,  and  straightway 
got  his  gun.  The  party  went  out  in  the  street ;  the  usual  crowd  collected ;  the 
word  was  given ;  up  went  Judge  Watson's  hat  in  the  air ;  bang  went  Lippincott's 
gun,  and  the  hat,  oh!  where  was  it?  Upon  the  swarthy  face  of  Judge  Watson, 
so  lately  all  ecstacy,  amazement  sat.  He  saw  the  sell  and  joined  in  the  general 
shout  at  his  own  expense,  and  then  the  boys  went  in  and  sampled  the  Judge's 
champagne. 

Among  the  lawyers  who  practiced  at  the  bar  of  our  District  Court  in  the 
early  "fifties"  was  W^illiam  B.  Almond,  who  had  been  Judge  of  the  Court  of 
First  Instance  in  San  Francisco  before  the  organization  of  the  State.  Judge 
Almond  was  a  genial  gentleman  of  the  old  school,  and  who  loved  his  tipple  and 
always  kept  a  demijohn  of  "cognac"  in  his  chambers  adjoining  the  court.  When 
the  judicial  duties  of  the  day  were  over,  it  was  the  Judge's  habit  to  go  to  his 
chambers  and  enjoy  a  glass  of  cognac.  The  Court  of  First  Instance  was  a  very 
busy  tribunal  during  Judge  Almond's  term,  owing  to  the  many  cases  which  arose 
in  '49  over  the  possession  of  lots  in  the  growing  city.  In  consequence  Judge 
Almond  had  a  great  many  papers  in  the  form  of  orders  and  decrees  to  sign,  and 
in  the  hurry  his  signature  often  became  a  very  hasty  and  formal  act.  Among 
the  attorneys  who  practiced  in  Judge  Almond's  court  was  Gregory  Yale,  who 
loved  joking  and  brandy  with  equal  fervor.  On  one  of  Judge  Almond's  lousiest 
days,  Gregory  Yale  gravely  presented  an  order  for  the  Judge  to  sign.  The  signa- 
ture was 'attached  and  Yale  went  away.  Presently  the  court  adjourned,  and 
Judge  Almond  went  to  his  chambers  for  his  wonted  glass.  The  demijohn  was 
gone,  and  in  high  dudgeon  Judge  Almond  called  the  bailifif  of  the  court  and  asked 
what  had  become  of  it.  The  bailiff  answered  that  he  had  taken  it  over  to  the 
office  of  Gregory  Yale.  "Who  ordered  you  to  do  that  ?"  said  the  Judge,  in  a 
rage.  "Your  Honor  did,"  responded  the  bailiff,  and  straightway  drew  from  his 
pocket  the  following  order  duly  signed  by  the  Judge: 

."Good  cause  appearing  therefor,  it  is  ordered  that  the  bailifY  of  this  court  do 
forthwith  convey  to  the  office  of  Gregory  Yale.  Esq..  that  certain  demijohn  of 
cognac,  now  lying  and  being  in  and  upon  those  certain  premises,  known  and  more 
particularly  described  as  the  Chambers  of  the  Honorable  Judge  of  this  court."  It 
was  the  order  he  had  signed  that  morning.  Judge  Almond  never  saw  nor  tasted 
his  cognac  again,  but  the  flavor  of  this  joke  remained  with  him  for  inanv  a  dav. 

RUI'US   A.    LOCKWOOD. 

Throughout  all  my  gleanings  of  fact  and  fancy  there  has  been  constantly  pre- 
sented to  me  the  outlines  of  a  gigantic  figure ;  the  reminiscences  of  a  character 
vast  and  strange ;  the  recollections  of  a  genius  more  powerful,   more  original, 


1122  History  of  the  Bench  and  Bar  of  California. 

and  yet  more  eccentric  than  any  other  which  ever  Hashed  its  hg-ht  across  the  history 
of  CaUfornia ;  the  memories  of  a  man  and  of  a  lawyer  whose  living  and  whose 
dying  verified  the  tru"th,  "Great  minds  to  madness  closely  are  allied."  I  refer 
to  Rufus  A.  Lockwood. 

In  the  early  part  of  the  year  1850  an  important  case  came  on  for  trial  in  the 
Court  of  First  Instance  at  San  Jose.  It  was  the  case  of  Hepburne  vs.  Sunol  et  al.. 
involving  the  title  and  right  of  possession  of  a  portion  of  the  Los  Coches  Rancho. 
C.  T.  Ryland  and  John  II.  Aloore  represented  the  plaintiff  and  James  M.  Jones 
appeared  for  the  defendants.  The  plaintiff's  attorneys  were  then  young  men, 
recently  from  the  East  and  not  yet  versed  in  the  Spanish  language  or  law.  The 
attorney  for  the  defendant,  on  the  contrary,  was  a  lawyer  of  great  experience 
in  the  practice  of  the  civil  (or  Spanish)  law  and  a  linguist  perfectly  familiar  with 
the  Spanish  language.  He  was,  moreover,  one  of  the  deepest  students  and  most 
brilliant  men  of  the  time,  and  in  the  case  at  issue  had  the  young  attorneys  for 
the  plaintiff'  at  a  disadvantage.  One  day  while  some  phase  of  the  case  was  up 
before  Judge  Kincaid  for  argument.  E.  L.  Beard,  of  the  San  Jose  Mission,  hap- 
pened into  the  court-room  and  soon  saw  that  M6ore  and  Ryland  were  getting 
worsted  in  their  case  by  reason  of  Jones'  superior  knowledge  of  the  Spanish 
law.  He  went  over  to  iSIoore  and  suggested  that  he  ought  to  have  the  assistance 
of  a  lawyer  who  could  read  Spanish  and  cope  with  Jones  in  the  application  of 
the  law.  "Where  can  we  find  such  a  man?"  asked  Mr.  Moore.  "I  have  the 
very  man  you  need  at  the  Mission,"  answered  Heard,  "and  I'll  send  him  down  to 
assist  you.  His  name  is  Lockwood."  When  the  day  for  the  trial  of  the  case 
came  on  there  walked  into  Judge  Kincaid's  court-room  in  the  old  Juzgado  a  large, 
awkward  and  roughly  dressed  man  and  took  his  seat  with  the  plaintiff's  attor- 
neys. It  was  Rufus  A.  Lockwood.  He  made  no  immediate  manifestation  of 
power,  but  listened  closely  while  the  pleadings  were  read,  the  jury  impaneled, 
and  the  trial  of  the  cause  begun.  He  saw  that  the  case  involved  one  of  those 
clashings  between  the  American  and  Mexican  people  so  common  in  those  early 
times.  He  noticed  that  the  jury  was  a  "Missouri"  jury,  whose  sympathies  would 
naturally  be  with  the  plaintiff.  He  quietly  waited  for  his  opportunity  to  cope 
with  the  only  dangerous  element  in  the  case,  viz.,  the  learning  and  ability  of  James 
M.  Tones,  the  defendant's  attorney.  Presently  a  question  of  law  arose  and  Jones 
began  to  argue  it  with  the  aid  of  the  Spanish  statutes,  which  he  read  and  then 
translated  to  the  court.  He  made  an  argument  clean  cut  and  strong,  as  was  his 
wont,  and  sat  down  confidently.  Then  Lockwood  arose,  and  with  one  sweep 
of  resistless  logic  destroyed  the  whole  fabric  of  Jones'  speech.  He  turned  to  the 
very  statute  from  which  Jones  had  quoted,  read  it  with  the  facility  of  a  master 
of  the  Spanish  tongue,  translated  it  luminously,  expounded  it  learnedly,  and  from 
it  showed  to  court  and  jury  that  the  law  was  with  the  plaintiff  in  the  case.  The 
whole  court-room  gaped  with  astonishment,  while  the  plaintiff  and  his  attorneys 
hugged  themselves  with  delight  at  the  possession  of  such  an  ally.  Every  one 
felt  and  saw  that  they  were  in  the  presence  of  a  master  mind.  The  expected 
victory  of  Jones  was  turned  into  a  rout,  which  during  the  remainder  of  the  trial 
he  could  not  check  wath  all  his  talent  and  industry.  He  worked  his  night  out 
to  win  his  case,  but  in  vain.  "Tliis  man  Lockwood  is  killing  me,"  said  Jones  to 
Moore  as  the  case  drew  to  its  close.  The  last  day  of  the  trial  was  February  22, 
1850,  when  Lockwood's  speech  to  the  jury  was  delivered.  Brief  snatches  of  that 
splendid  burst  of  oratory  still  linger  in  the  memories  of  our  pioneers  who  were 
privileged  to  hear  it.  They  tell  of  Lockwood's  description  of  the  Battle  of  Buena 
Vista,  which  occurred  on  February  22,  1846,  and  of  which  this  day  was  the  anni- 


History  of  the  Bench  and  Bar  of  California.  1123 

versary.  He  pictured  General  Taylor's  victory  over  the  "greasers"  to  that  jury 
of  Missourians  and  called  on  them  to  celebrate  it  today  with  a  victory  for  the 
American  plaintiff  and  against  the  "greaser"  defendant  in  the  case.  Such  an 
appeal  was  irresistible,  and  Lockwood  not  only  won  his  case,  but  established  him- 
self at  once  as  the  greatest  lawyer  who  had  ever  shaken  the  walls  of  the  Juzgado 
with  the  thunders  of  his  eloquence. 

The  next  great  case  in  which  Lockwood  was  engaged  and  tried  in  San  Jose 
was  the  case  of  Aletcalf  vs.  Argenti.  This  suit  arose  in  this  wise :  .\rgenti  was 
a  banker  in  San  Francisco,  and  was  prominent  among  the  members  of  the  first 
vigilance  committee.  Metcalf  was  an  arrival  from  Australia,  who  for  some  rea- 
son fell  under  suspicion  and  was  roughly  treated  by  the  Vigilantes.  He  brought 
suit  against  the  leading  men  composing  that  body  and  employed  Lockwood  and 
Edmund  Randolph  as  his  attorneys.  The  case  was  tried  first  in  San  Francisco 
and  resulted  in  a  mistrial  by  reason  of  the  strong  prejudice  in  favor  of  the  Vigi- 
lance Committee  in  that  city.  It  was  then  transferred  to  Santa  Clara  county  for 
a  second  trial  and  came  on  in  1852.  Lockwood  was  very  much  opposed  to  the 
methods  of  the  Vigilance  Committee  and  went  into  this  case  with  more  than  usual 
zeal  and  vigor.  Those  who  heard  his  speech  to  the  jury  in  that  case  say  that  it 
surpassed  all  of  the  speeches  they  have  ever  heard  before  or  since.  It  was  pub- 
lished in  pamphlet  form,  and  may  still  be  found  occasionally  in  the  libraries  of  the 
lawyers  of  that  time. 

The  al)ilities  which  Lockwood  displayed  in  the  trial  of  these  great  cases  gave 
him  a  State  reputation  as  being  the  greatest  law^yer  on  the  Coast.  Doubtless  he 
was,  and  would  have  died  in  the  secure  possession  of  that  reputation,  but  for  that 
strain  approaching  insanity  in  his  nature,  which  led  him  to  such  extremes  in  con- 
duct and  experience.  Many  stories  are  told  of  his  skill  in  the  court-room,  where 
he  was  the  wonder  and  admiration  of  the  bar.  In  defeat,  especially,  he  is  said  to 
have  been  like  a  lion  at  bay.  and  on  such  occasions  some  one  was  likely  to  get 
hurt  by  his  fierce  intellectual  assaults.  An  instance  of  his  crushing  manner  in 
dealing  with  lying  witnesses  is  related.  He  had  cross-examined  the  witness  at 
great  length  and  finally  dismissed  him.  Just  as  the  witness  was  about  to  leave 
the  stand  Lockwood  detained  him  with  "One  question  more"  ;  wrote  a  moment 
and  then  looked  up  and  transfixed  him  with  the  question.  "Would  you  l)elieve 
yourself  under  oath?" 

It  is  indeed  remarkable  how  deep  an  impression  Rufus  A.  Lockwood  made 
upon  the  minds  and  memories  of  the  pioneers  during  the  short  six  years  he  spent 
at  the  California  l)ar.  In  fact,  every  one  who  ever  came  in  contact  with  him  has 
imprinted  on  his  mind  a  vivid  ])icture  of  the  man  ;^of  his  facial  expression,  of  his 
physical  movements  and  of  his  original  style,  and  a  strong  remembrance  of  his 
powerful  voice,  which,  to  use  the  language  of  Judge  Moore,  "was  like  the  growl 
of  a  grizzly  bear."  Walking  down  the  street  the  other  day.  I  met  J.  H.  Flickin- 
ger,  who  told  me  that  of  all  the  pioneers  of  California  his  recollection  of  Lockwood 
was  perhaps  the  earliest  and  most  pleasing.  He  was  a  fellow-passenger  with 
Lockwood  when  he  first  came  to  California  around  the  Horn  in  1849.  For  the 
first  month  out  from  New  York  Lockwood  never  left  his  cabin,  but  after  that  he 
began  to  mingle  with  the  rest.  Before  the  voyage  was  ended  the  passengers 
became  aware  of  the  fact  that  they  had  on  board  the  most  singular,  brilliant  and 
versatile  genius  they  had  ever  known.  The  range  of  his  reading  and  of  his 
experience ;  his  knowledge  of  human  character ;  his  command  of  language,  of  lit- 
erature, and  the  infinite  variety  of  his  moods  were  a  revelation  to  his  shipmates. 
After  the  voyage  was  ended  and  during  the  whole  of  Lockwood's  career  in  Cali- 


1124  History  of  the  Bench  and  Bar  of  California. 

fornia  he  retained  his  friendship  for  Mr.  FHckini^er,  and  whenever  he  was  in  San 
Jose  was  pleased  to  sjiend  a  while  with  his  "shi])niate"'  and  live  over  a^^ain  their 
mutual  past. 

Elias  L.  Heard,  of  San  Jose  Mission,  was  a  Ion;.;-  and  stroui]^  friend  of  Lock- 
wood.  Beard  was  an  a<^i^ressive  character  and  was  involved  in  lawsuits  of 
various  kinds  in  all  of  which  he  had  Lockwood  for  his  attorney.  One  time  a 
fellow  whose  name  has  escaped  immortality,  sued  Beard  for  slander  and  employed 
E.  K.  Sanford  as  his  attorney.  The  case  came  on  for  trial  before  Judge  Watson, 
with  Lockwood  for  the  defense.  Sanford  made  his  opening-  speech  to  the  jury, 
and  it  was  very  flowery.  He  quoted  elaborately  from  the  poets  as  to  the  value 
of  a  man's  character  and  the  outrage  of  slanderous  assaults  upon  it.  "Who 
steals  my  purse  steals  trash,  etc.,"  came  in  the  climax,  and  Sanford  sat  down  well 
pleased  at  his  burst  of  oratory.  Then  Lockwood  arose,  and,  addressing  the  jury, 
also  took  the  subject  of  character  for  his  theme.  He  dwelt  upon  the  value  of 
character  more  eloquently  than  his  opponent,  quoted  again  all  of  the  poetic  pas- 
sages which  Sanford  had  done,  and  adding  to  their  number,  built  up  his  speech 
to  the  verv  summit  of  a  splendid  consummation  and  then  capped  it  all  with  this 
anti-climax,  wdiich  won  his  case.  "Gentlemen  of  the  jury,  remembering  all  that 
I  have  said  to  you  of  the  value  of  human  character,  I  solemnly  declare  that  if  you 
will  give  a  dow"n-East  Yankee  a  jack-knife  and  a  cedar  stick  he'll  whittle  out  a 
better  character  in  five  minutes  than  has  ever  been  established  yet  in  any  court 
of  justice." 

Rufus  A.  Lockwood  was  once  the  defendant  in  an  action  brought  by  one  named 
Harlan  in  our  District  Court,  and  involving  the  title  to  a  piece  of  land  adja- 
cent to  San  Jose.  Lockwood  was  his  own  lawyer  and  did  not  have  a  fool  for  a 
client,  in  spite  of  the  old  legal  saw^  The  case  turned  upon  the  validity  of  a 
certain  deed  which  made  its  appearance  at  the  trial  and  was  offered  in  evidence 
by  the  plaintiff.  It  a])peared  to  be  entirely  in  the  handwriting  of  Lockwood  and 
to  convey  the  premises  in  c|uestion.  Tf  valid  and  so  found  by  the  court.  Lock- 
wood  would  have  stood  besmirched  with  having  acted  dishonorably  toward  Har- 
lan. The  case  was  hotly  contested  on  both  sides,  and  Lockwood's  blood  was  up. 
When  the  deed  was  produced  and  offered  in  evidence  Lockwood  looked  it  over 
carefully  and  then  arose  in  court,  and  in  a  voice  of  thunder  declared  it  a  forgery. 
William  T.  Wallace  was  attorney  for  the  plaintifif,  and  seeing  Elias  L.  Beard  in 
the  court-room,  called  him  suddenly  to  the  witness-stand  to  testify  as  to  Lock- 
wood's  signature.  P>eard  didn't  want  to  testify  against  his  friend,  but  after  care- 
fully examining  the  instrument  he  was  obliged  to  swear  that  he  believed  it  to  be 
in  Lockwood's  handwriting.  Lockwood  cross-examined  him  as  follows:  "Elias, 
you  think  that  T  wrote  that  deed,  do  you?"  "Yes,  Rufus,"  reluctantly  stammered 
Teard,  "I  think  that's  your  handwriting."  "Now,  Elias."  said  Lockwood  ("who 
prided  himself  on  his  spelling),  "if  I  was  going  to  write  a  deed,  do  you  think 
that  I  would  spell  'indenture'  with  tw^o  tt's?"  ]^)eard  hastily  scanned  the  deed,  and 
there,  sure  enough,  was  'indenture'  spelled  with  two  tt's.  "Xo,  Rufus,"  said 
Beard,  exultantly.  "I  don't  believe  you  would,  and  I  think  this  deed  is  a  forgery." 
And  so  it  proved  to  be,  for  after  the  case  was  ended  it  was  discovered  that  a  fellow 
who  was  staying  at  Harlan's  house,  and  who  was  an  expert  penman  and  given 
to  imitating  handwriting,  had  w-ritten  the  deed. 

The  story  of  Lockwood's  death  on  the  ill-fated  Central  America  recalls  the 
maimer  of  dying  of  another  member  of  our  early  bar.  of  whom  I  have  written — 
Freeman  McKinney.  When  Henry  A.  Crabbe  conceived  his  fatal  filibustering 
expedition  into  Sonora  in  1857  he  attracted  a  number  of  brilliant  but  adventurous 


Historx  of  the  Bench  and  Bar  of  California.  1225 

characters  to  his  company,  and  among  these  was  Freeman  McKinney.  Doubtless 
the  expedition  was  entered  upon  in  good  faith  by  many  of  Crabbe's  followers, 
who  were  led  to  believe  that  an  actual  revolution  was  in  progress  in  Sonora.  and 
that  a  display  of  aid  from  the  Americans  would  win  the  State  for  the  United 
States  as  Texas  and  California  had  been  won.  Induced  by  this  error  they  went 
to  Sonora  and  there  were  overpowered  by  a  superior  force,  and  the  survivors 
condemned  to  be  shot.  When  Freeman  McKinney  was  led  out  to  execution  and 
the  file  of  soldiers  stood  ready  to  fire,  McKinney  saw  a  Mexican  in  the  crowd 
whom  he  had  known  in  California.  Beckonng  him  to  his  side  he  inquired  if  he 
expected  to  return  to  San  Jose.  The  Mexican  answered  "Yes."  when  McKinney 
drew  himself  up  to  his  full  height  (a  little  over  four  feet)  and  said:  "When  you 
return  to  California  tell  the  people  of  San  Jose  that  Freeman  McKinney  died 
game !" 

The  other  day  in  San  Francisco  William  Mathews  drew  me  aside  from  the 
rushing  human  tide  on  ^Montgomery  street  to  tell  me  some  stories  in  his  elegant 
way.  of  our  early  bar.  The  tale  I  have  just  related  of  "Free"  McKinney's  fate 
was  one  of  them.  Here  is  another  of  Judge  Redman,  which  is  worth  repeating : 
One  day  in  Judge  Redman's  court.  Colonel  Stafiford  ( "the  Lord  of  Hardscrab- 
ble")  arose  to  move  the  admission  of  a  new  member  of  the  bar.  It  was  Colonel 
A.  C.  Yates,  who  had  recently  arrived  from  the  state  of  Texas,  in  the  military 
history  of  which  state  he  had  distinguished  himself  and  won  the  commission  of 
colonel.  The  genial  Stafiford  enlarged  u])on  the  attributes  of  his  friend.  Colonel 
Yates,  and  eloquently  depicted  his  career.  He  then  fumbled  among  a  package 
of  papers  which  Yates  had  given  him  for  the  latter's  license  to  practice  as  an 
attorney  of  Texas  (upon  which  his  motion  was  based)  and  finally,  as  he  thought, 
found  it  and  gracefully  handed  it  to  the  court.  Judge  Redman  took  the  paper 
and  opening  it  out  read  it  over  with  growing  though  internal  mirth.  At  length 
he  looked  up  and  with  a  smile  said,  "Colonel  Stafiford,  you  have  made  a  mis- 
deal, sir.  This  document  purports  to  be  a  colonel's  commission  from  the  Republic 
of  Texas  to  Mr.  Yates.  Deal  again.  Colonel  Stafiford,  deal  again  before  this 
court  will  be  justified  in  granting  your  motion,"  and  the  Lord  of  Hardscrabble 
in   mucli  conftision  "dealt  again." 

Still  another  story  has  been  told  of  Judge  Redman.  One  day  as  he  sat  in  his 
court-room  with  his  clerk,  H.  C.  Melone,  writing  below  him.  J.  .\lexander  Yoell 
entered.  Mis  business  was  with  Melone.  who  was  a  large  man  of  strong  likes 
and  dislikes,  and  of  quick  temper — a  ty])ical  border  character.  r>etween  himself 
and  Mr.  Yoell  a  misunderstanding  occurred,  which  on  Melone's  part  ripened  at 
once  into  a  row.  and  he  i)itched  into  Yoell.  The  judge  sat  (|uietly  viewing  and 
enjoying  the  tussle  and  making  no  eflfort  to  stop  it  until  some  gentleman  entered 
and  separated  the  combatants.  Then  turning  to  the  Judge,  with  some  indigna- 
tion, he  said:  "^'ou're  a  pretty  specimen  of  a  Judge  to  sit  there  and  permit  a 
personal  encounter  to  go  on  in  your  court."  "My  friend."  said  Judge  Redman, 
calmly,  "what  could  I  do?  The  legislature  in  its  wisdom  has  not  seen  fit  to  pro- 
vide my  court  with  a  bailifif,  and  hence  I  could  not  order  them  into  custody.  The 
clerk,  as  you  see.  was  engaged,  and  I  could  not  have  entered  a  fine;  and  if  T  had 
descended  from  the  bench  to  interfere  1   would  cease  to  l)r  the  Judge  and  would 

be  no  better  than  any  other  d d  fool  in  the  court-room."      1  am  told  that  when 

this  yarn  was  told  to  Stephen  J.  Field  of  the  Supreme  Court  of  the  United  States, 
that  eminent  jurist  laughingly  declared  that  Judge  Redman's  position  was  cor- 
rect. 

It  mav  be  gathered  from  some  of  these  sketches  that  the  lawvers  of  our  earlv 


1126  Hisiory  of  the  Bench  and  Bar  of  California. 

(lays  did  not  always  con  their  law  books,  either  when  out  of  court  in  the  day- 
time, or  between  days  when  they  burned  the  midnii^ht  oil.  Nearly  all  of  the 
pioneers  of  the  bar  played  cards,  and  often  enjoyed  the  game  greater  when  the 
pot  was  a  big  one  and  the  bets  were  high.  Here  is  an  incident  of  one  of  those 
heavy  earthquakes  which  visited  the  Coast  and  struck  terror  to  the  hearts  of  its 
denizens  during  the  fifties,  and  before  the  average  man  grew  accustomed  to 
"temblors."  One  day  William  T.  Wallace,  John  H.  Moore,  J.  A.  Moultrie  and  a 
layman  or  two  were  having  a  quiet  game  in  one  of  the  adobes  near  the  Court- 
House.  The  pot  was  large,  the  bets  were  made  and  ended,  and  a  show-down 
was  about  to  be  made  when  the  earthquake  came.  Everybody  made  for  the 
street  as  earthquake-shaken  people  only  can.  After  the  danger  was  over,  the 
players  remembered  their  game  and  returned  to  the  adobe.  The  "pot"  was  still 
there,  but  every  player,  save  one,  had  lost  his  hand  somewhere  in  the  panic.  That 
one  was  "Bill"  Wallace,  who,  with  a  presence  of  mind  which  was  characteristic, 
produced  the  cards  he  had  clung  to  throughout  the  earthquake,  and  claimed  the 
pot.  The  hand  was  a  low  one,  but  he  dared  the  rest  to  show  a  higher,  and  when 
none  of  them  could,  Wallace  raked  the  pot. 

When  Judge  Redman  resigned  his  office  of  County  Judge  in  1852,  C.  E.  Allen 
was  appointed  to  serve  out  his  unexpired  term,  which  he  did  with  great  credit  to 
himself  and  to  the  court.  After  him  came  R.  B.  Buckner,  who  was  elected  in 
1853.  We  all  remember  Judge  Buckner  and  his  quaint  ways  of  dispensing  justice 
from  his  bench  as  justice  of  the  peace  in  modern  days.  On  the  old-time  county 
bench  he  was  much  the  same  in  method,  as  the  following  incident  will  illustrate : 
One  narty  had  leased  a  piece  of  land  to  another  for  a  term,  w^hich  ended,  he  re- 
moved from  the  land  leaving  behind  him  a  quantity  of  compost,  which  later  he 
tried  to  remove,  but  was  prevented  by  the  owner  of  the  land.  The  tenant  brought 
a  replevin  suit  against  his  former  landlord  for  possession  of  the  compost,  in  Judge 
Huckner's  court.  The  case  dragged  on  while  the  lawyers  disputed  in  briefs  and 
arguments  about  the  lav."  of  fixtures,  and  the  principles  governing  the  change 
of  personal  into  real  property.  At  last  the  actual  trial  came  on,  when  the  defend- 
ant proved  that  since  the  case  was  commenced  his  chickens  had  so  scattered  the 
compost  that  it  had  lost  its  identity  and  become  mingled  with  the  soil  of  his  land. 
Judge  Buckner  chewed  his  invariable  "quid"  calmly  until  the  time  for  pronouncing 
judgment  came.  He  then  rendered  his  decision  as  follows:  "This  case  has 
been  argued  learnedly  by  the  lawyers  on  both  sides,  wdio  have  drawn  fine  distinc- 
tions between  personal  and  real  property.  The  court  does  not,  however,  deem 
it  necessary  to  draw  any  such  nice  distinctions,  for  the  reason  that  the  evidence 
shows  that  while  the  action  has  been  pending  the  defendant's  chickens  have  scat- 
tered the  property  in  controversy  beyond  identification,  and  have  thereby  literally 
scratched  the  plaintiff's  case  out  of  court." 

THE   Or.D   THIRD   DISTRICT    COURT. 

The  first  legislature  of  California,  which  met  in  the  fall  of  1849  in  San  Jose, 
provided  the  State  with  a  judicial  system,  consisting  of  a  Supreme  Court  and  nine 
District  Courts,  which  met  in  as  many  judicial  districts  throughout  the  State. 
The  counties  of  Santa  Clara,  Contra  Costa,  Santa  Cruz  and  Monterey  constituted 
the  Third  Judicial  District  under  this  statute,  and  John  H.  Watson  was  appointed 
its  Judge.  Judge  Watson  was  a  man  of  considerable  ability,  but  of  not  a  very 
vast  fund  of  legal  knowledge.  He  it  was  who  delivered  the  famous  and  humor- 
ous charge  to  the  jury  at  Monterey  in  the  case  of  Dean  vs.  McKinley,  and  which 
has  heretofore  been  recorded.     One  day  while  the  Judge  was  traveling  from  San 


History  of  the  Bench  and  Bar  of  California.  1127 

Jose  to  Santa  Cruz  (to  hold  cotirt  there)  in  company  with  several  members  of  the 
bar  of  his  district,  amoni^'  whom  was  R.  F.  Peckham,  the  latter  beg"an  to  poke  fun 
at  Judge  Watson  for  his  charge  to  the  jury  in  the  McKinley  case.  "Now,  Peck- 
ham,"  said  the  Judge,  "don't  you  think  I  do  about  as  well  as  anyone  else  would 
who  don't  know  any  more  law  than  I  do?"  "Before  I  can  answer  that  question, 
Judge,"  answered  Peckham,  "I  would  have  to  ascertain  just  how  much  law  you 
do  know." 

■"Well,  to  tell  you  the  truth,  Peckham,"  said  the  Judge,  "I  don't  know  any, 
for  I  never  read  a  law  book  in  my  life."  "Well,"  laughed  Peckham,  "I  must  say 
that  for  a  Judge  who  never  read  a  law  book  you  do  remarkably  well,  but  how  do 
you  manage  to  get  along  with  your  cases?"  "I'll  tell  you  the  secret,  Peckham," 
said  Judge  \\^atson ;  "I  make  use  of  two  presumptions  in  the  trial  of  my.  cases. 
When  I  have  heard  the  evidence  I  first  presume  what  the  law  ought  to  be  to  do 
justice  between  the  parties,  and  after  I  have  settled  that  presumption  I  next  pre- 
sume that  the  law  is  "what  it  ought  to  be,  and  give  judgment  accordingly." 

Here  is  another  instance  of  Judge  Watson's  aiTection  for  presumptions.  One 
day  James  AI.  Jones  was  arguing  a  case  before  Watson,  which  involved  some  prop- 
osition of  the  old  Spanish  law.  Watson  didn't  understand  Spanish,  and  hence 
Jones  had  to  both  read  and  translate  the  law  which  he  claimed  to  sustain  his 
case.  Judge  Watson  didn't  like  the  law  which  Jones  was  evolving  from  the 
Spanish  text,  and  after  listening  awhile,  said:  "Mr.  Jones,  the  court  has  no 
doubt  that  you  are  correctly  translating  that  statute,  and  that  it  at  one  time  was 
the  Spanish  law;  but  that  statute  is  so  absurd  and  imjust  as  applied  to  the  facts 
of  this  case  that  the  court  is  going  to  presume  that  the  law  you  are  citing  has 
been  repealed."  Of  course,  such  presumption  was  indisputable,  and  Jones  lost 
his  case. 

This  method  of  administering  presumptive  law  was  well  enough  in  an  era 
when  law  libraries  were  few  and  far  between  and  when  lawyers  were  even  less 
learned  in  the  law  than  was  the  court.  But  the  great  tide  of  population  into 
California  during  the  early  fifties  brought  with  it  as  good  lawyers  as  the  older 
states  could  produce,  and  their  law  books  soon  followed  them.  The  result  was 
that  the  Supreme  Court  found  very  frequent  cause  for  reversal  of  the  Judges  of 
the  District  Court.  In  this  connection  a  good  story  may  be  told  on  the  Fourth 
District  Court,  which  was  one  of  those  most  frequently  reversed.  One  day 
Delos  Lake,  Esq.,  arose  in  the  Supreme  Court  to  argue  an  appeal.  "May  it  please 
the  Court,"  he  said,  "this  is  an  action  in  which  we  have  appealed  from  a  judgment 
of  the  Fourth  District  Court ;  but  your  Honors,  zve  have  other  grounds  of  error." 

The  term  of  Judge  Watson's  service  on  the  District  Bench  was  ended  in  1851 
by  his  sudden  resignation  and  return  to  the  practice  of  the  law.  Judge  Moore 
has  supplied  me  with  the  reason  for  his  resignation.  It  seems  that  during  185 1 
there  were  a  great  many  criminal  trialls  in  both  the  District  and  County  courts, 
principally  for  grand  larceny.  John  H.  Moore  was  then  district  attorney,  and 
being  a  young,  vigorous  and  popular  attorney,  he  gained  many  convictions.  Judge 
Watson  saw  this  criminal  business  growing  in  his  court,  and  saw  also  Moore's 
success.  He  had  some  abilities  as  an  orator,  had  the  Judge,  and  he  conceived  the 
idea  that  he  could  make  a  fortune  defending  criminals.  So  one  day  he  resigned 
and  at  once  o])cncd  a  law  office.  Meeting  Moore  soon  afterward  he  told  him  of 
his  plans  and  rather  boastingly  informed  the  young  district  attorney  that  the  day 
of  his  success  as  a  prosecutor  was  past.  Moore  advised  him  not  to  be  too  confident 
until  he  had  won  a  case  or  two.  The  very  next  case  which  came  up  for  trial  was 
that  of  one  Basquiz  for  horse  stealing.     The  penalty  for  this  offense  was  at  that 


1128  History  of  the  Bciicli  and  Bar  of  California. 

time  capital  unless  the  jury  fixed  a  lesser  i)unishnient,  but  District  Attorney 
Moore,  not  believino^  in  the  harsh  law,  had  never  yet  asked  a  jury  to  permit  the 
extreme  penalty.  When  Judj^e  Watson,  however,  volunteered  to  defend  this  horse- 
thief,  Moore  told  him  tnat  he  had  a  bad  case  and  that  his  client  mi,s^ht  hang.  The 
Judi^e,  however,  was  confident  of  his  power  before  a  jury,  and  the  case  came  on. 
Upon  the  ari^ument  Judge  Watson  spread  himself  in  a  wild  flight  of  oratory,  but 
all  in  vain,  for  the  jury  stayed  with  Moore  and  brought  in  a  prompt  verdict  for 
conviction  without  limitation,  and  Judge  Watson's  first  client  was  hanged. 

Tpon  the  retirement  of  Judge  Watson,  Craven  1'.  Hester,  Esq.,  was  appointed 
in  his  stead.  Judge  Hester  was  a  native  of  Indiana,  where  he  had  studied  law 
and  practiced  it  for  some  years  before  coming  to  San  Jose.  He  brought  to  the 
bar  of  San  Jose  a  fine  reputation  as  a  lawyer  and  as  a  man  of  high  sense  of  pro- 
fessional and  personal  honor.  His  appointment  in  1859  to  Judge  Watson's  vacant 
seat  gave  general  satisfaction  and  when  the  general  election  came  a  year  later 
he  was  chosen  to  serve  for  a  term  of  six  years  as  District  Judge.  A  great  many 
important  cases  were  tried  before  Judge  Hester  and  the  ablest  lawyers  in  the  State 
of  California  practiced  in  his  court.  The  sessions  of  the  District  Court  were  held 
in  the  State  House  until  it  was  destroyed  by  fire  in  1853,  when  the  county  provided 
them  with  quarters  in  the  frame  building  which  was  recently  removed  from  the 
southeast  corner  of  Second  and  San  Fernando  streets.  There  for  several  years 
Judue  Hester  held  his  court.  There  occasionally  came  such  lawyers  as  Lockwood 
and  Randolph  and  Baker  and  other  brilliant  men  from  the  bar  of  the  State. 

When  the  judicial  term  of  Judge  Hester  expired  he  was  not  re-elected,  and  as 
T  am  told,  for  a  peculiar  reason.  In  the  district  of  Judge  Hester  there  were  many 
lawyers  of  several  degrees  of  merit.  The  leader  of  the  San  Jose  bar  was  William 
T.  Wallace  durins"  the  fifties.  The  leader  of  the  Monterey  bar  was  D.  R.  Ashley, 
and  of  the  Santa  Cruz  bar  was  R.  F.  Peckham  during  the  same  period.  This  trio 
of  lawyers  each  worked  hard  at  their  cases,  tried  them  well,  and  in  consequence, 
were  very  successful  each  at  his  own  bar.  Their  success  made  other  lawyers  of 
less  studious  habits  jealous,  and  as  the  time  for  another  election  came  on.  they 
spread  the  campaiirn  rumor  that  this  trio  of  lawyers  "owned"  Judge  Hester  and 
that  he  always  decided  their  way.  The  opposition  nominated  Samuel  Bell  McKee 
upon  this  issue  and  succeeded  in  electing  him.  Accordingly  Judge  McKee  became 
District  Judye  in  1858,  and  remained  so  until  the  change  in  the  district  made  in 
1872,  by  which  the  old  Third  with  some  variations  became  the  Twentieth  Judicial 
District  and  David  Bclden,  Esq.,  was  elected  'as  Judge. 

The  year  1(872  marks  the  opening  of  a  new  era  in  the  history  of  the  bench  and 
bar  of  California.  The  codes  were  in  that  vear  adopted  and  more  settled  forms 
of  procedure  began  to  prevail.  The  twenty-six  years  which  intervened  between 
the  American  occupation  and  that  date  belong  to  one  epoch  ;  the  twenty-eight  years 
which  have  passed  since  the  adoption  of  the  codes,  form  another.  With  the  latter 
it  is  not  the  scope  or  purpose  of  this  article  to  deal.  The  writer  of  this  anecdotal 
sketch  of  the  Early  Bench  and  Bar  has  felt  himself  reasonably  secure  behind  the 
mists  of  tradition,  and  he  deems  it  the  part  of  wisdom  to  remain  so  and  not  tempt 
contradiction  by  entering  upon  the  recital  of  veracious  tales  of  existing  courts  or 
of  niaii\-  living  members  of  the  profession  to  which  he  has  the  honor  to  belong. 

—-JOHN   E.    RICHARDS. 
San  lose.  Cal. 


COMPLETE    LIST    OF 
CALIFORNIA  LAW  BOOKS 


i 


'^  cjb  ^  s5b  (^  f^s  4&  G^  (^  ^ 


HISTORY  of  the 
BENCH  and  BAR 
of  CALIFORNIA 


»«?  <??  °r  «^  f  9?  '"k-  «^'  ^?  V 


CALIFORNIA  LAW  BOOKS 


COMPLETE  LIST 


The  followiiii;'  is  a  list  of  all  law  books  that  have  been  producetl  by  Califor- 
nia  authors   and   comi)ilers,   and   ptiblished   within  the   State. 

It  has  been  prepared  for  this  History  by  Mr.  F.  P.  Stone,  President  of  Ban- 
croft-Whitney Company,  from  his  records,  the  only  ones  that  exist  on  this  subject. 

There  were  a  few  omissions,  which  we  have  supplied : 


American  Decisions,  lOO  vols.;  1877  to  1888. 

American  State  Reports.  73  vols.;   1888-1900. 

Alexander  and  Joseph;  Probate  Practice,  i 
vol. ;    1892. 

Ames    (D.   W.)    on   Forgery;   1899. 

.Amendments  Codes.  1873-4;  1875-6;  1877-8; 
1880. 

Arizona  Reports,  vol.  i  ;  1883. 

Attorneys'  Directory.  Containing  complete 
list  of  attorneys,  county  officers  and  justices 
of  the  peace  throughout  the  state.  Issued 
biennially.  Chas.  W.  Palm  Co.,  Los  An- 
geles. 

Ballinger,  R.  A.,  Washington  Code,  2  vols. ; 
1897. 

Ballinger.  R.  A.,  Connnunity  Property;   1889. 

Bancroft's  California  Lawyer  and  Form  Book; 
1859. 

Bancroft's  Forms,  3d  cd.  of  Kent's  i'^orms,  b} 
J.  F.  Cowdery ;  1881. 

Bancroft's  Citizens  Law  Book ;   1883. 

Bates,  J.  C.  second  ed.  of  Hent's  Forms: 
1876. 

Barber,  W.,  Insurance  ;  1882. 

Bcdinger,  E.  W.,  West  Virginia  Digest  ;  1884. 

Blanchard  (  E.  P.)  &  Weeks  (E.  P.),  Mines 
and  Minerals  ;  1877. 

Boone.  C.  T.,  Banking;   1892. 

Boone,  C.  T.,  Real  Property  ;  1883. 

Boone,  C.  T..  Mortgages;   1884. 

Beach,  C.  F.,  Law  of  Railroads.  2  vols 

Beach,  C.  F.,  Law  of  Wills ;  1888. 

Boone,  C.  T..  Corporations;   1881. 

Boone,  C.  T.,  Test  Book ;  1896. 

Boone,  C.  T.,  Code  Pleading;  1885. 

Boone,  C.  T..  Forms  of  Code   Pleadint 

Belknap,  D.  P.,  Proliate  Law:  1st  editin 
2(]  edition,  1874. 

Brantly,  W.  T.,  Personal   Property:   i8go. 

Browne,   1..  Cuiiinidn   Words  and    Phrases. 


1890. 


1880. 
1861  : 


Browne,  I.,  Humorous  Phases  of  the  Law. 

Browne,  J.  H.  B.,  Medical  Jurisprudence  of  In- 
sanity; 2d  edition,  1875-1880;  first  edition 
printed  in  England. 

Buchan,  P.  G.,  Mechanics  Lien  Law ;  1868. 

Budd,  Jos.  H.,  Law  of  Civil  Remedies;  1898. 

Brunner,  A.,  Collected  Cases ;  1884. 

Burrows.  A.,  Inde.x  Digest  of  California  Re- 
ports, vols.  68  to  87 ;  supplement  to  Gear's 
Digest;   1891. 

California  Road  Laws;  various  editions  from 
1885  to  1899. 

California  Pocket  Codes,  5  vols. ;  1899. 

California  Reports,  127  vols.;   1850-1900. 

California  Pocket  Codes,  4  vols;  ist  edition, 
1881. 

(There  is  no  record  of  the  number  of  editions 
of  the  Codes  issued  up  to  1899.) 

Carey,  C.  H.,  Digest  of  Oregon  Reports,  vols. 
1-14;  Digest  of  Washington  Ter.  Reports, 
3  vols  ;  all  in  i  vol. ;  1887. 

Carney,  W.  A.,  Secretary's  Manual;  2(1  edition, 
1 900. 

Church,  W.  S.,  Digest  of  .Vmerican  Stale  Re- 
])orts  ;  vols.  25  to  48  in  i  vol. 

Church,  W'.  S..  Habeas  Corpus;  isl  eilitioii, 
18S3:   jd  edition,  1893. 

Church.  W.  S.,  Northwest  Digest,  covering 
Montana.  15  vols.;  Oregon.  26  vols.:  Wa.sh- 
ington.  13  vols.;  all  in  one  volume:  vol.  2. 
covering  Oregon,  1899.  -7-^-'  Washington, 
1 1-19;  Montana.  16-21. 

Codes  of  California,  annotated,  by  Creed  Hay- 
mond  and  J.  C.  Burch  ;  7  vols.;  1872. 

Codes  of  California.  Supplement  to  Pocket 
Editions;   1895. 

Coffey's  Probate  Decisions  (Hon.  James  V. 
Coffey,  Superior  Judge,  San  I-'rancisco  since 
January.  1883).  Reported  by  T.  J.  Lyons  and 
Edmimd  Tauszkv  of  the  San   I-"rancisco  bar. 


1132 


History  of  the  Bench  and  Bar  of  California. 


San  Francisco,  L.  R.  Dempster;  1888.  One 
volume.  Two  other  volumes  in  prepara- 
tion. 

Congdon,  H.  B.,  Mining  Laws  and  Forms ; 
1863. 

Copp,  H.  N.,  Mining  Decisions;  1874. 

Corporation  Laws  of  California ;  1899. 

Cowdery,  J.  F.,  Insolvency  Laws  and  Forms; 
1st  edition,  1878;  2d  edition.  1880. 

Cowdery,  J.  F..  Law  Encyclopedia ;  1871  ;  10 
editions  printed  between   1871   and   1881. 

Cowdery,  J.  F.,  Forms  and  Precedents.  Really 
the  4th  edition  of  Hent's  Forms ;   1895. 

Cowdery,  J.  F.  ;  Justice's  Courts  Treatise,  2 
vols. ;  1887-8 ;  supplement  to  above,  1890. 

Croke,  J.  G.,  Poems  of  the  Law;  1885. 

Croke,  J.  G.,  Lyrics  of  the  Law ;  1884. 

Deady,  M.  r..  Circuit  and  District  Court  Re- 
ports.  I  vol. ;   1872. 

Devlin,  R.  T.,  Law  of  Deeds;  ist  edition,  1887. 
2  vols.;  2d  edition,  1897,  3  vols. 

Deering.  F.  P.  and  J.  H.,  Supplement  to  Anno- 
tated California  Codes ;  1889. 

Deering,  F.  P..  Annotated  California  Codes, 
4  vols. ;    1885. 

Deering,  J.  H..  Supplement  to  Pocket  Califor- 
nia Codes ;  1893. 

Deering.  J.  H..  Digest  of  California  Reports, 
vols.  112-125;  1900. 

Deering,  J.  H.,  Digest  California  Reports,  i- 
100 :   3  vols. ;   1895. 

Deering,  J.  H.,  Digest  California  Reports,  vols. 
loi  to  III  ;  1896. 

Deering,  J.  H.,  Negligence ;  1886. 

Desty,  Robert,  California  Constitution  ;  1879. 

Desty,  Robert ;  Digest  California  Reports,  vols. 
35  to  46;  supplement  to  Parker;  i  vol.;  1874. 

Desty,  Robert,  Federal  Procedure,  6  editions 
prior  to  1884 ;  7th  edition,  1888,  i  vol. ;  8th 
edition.  1893,  2  vols;  9th  edition  by  M.  A. 
Folsom.  1898,  4  vols. 

Desty,    Robert,    Federal    Constitution,    i    vol.: 

1879- 
'  Desty,  Robert,  Federal  Citations,  i  vol. ;  1878. 

Desty.  Robert.  Commerce  and  Navigation : 
1880. 

Desty.  Robert,  Shipping  and  Admiralty  ;  1879. 

Desty.  Robert.  Removal  of  Causes;  1882. 

Desty,  Robert,  American  Criminal  Law;   1882. 

Desty,  Robert,  California  Citations,  i  vol.  ; 
1874;  Supplement.  1892;  2  vols,  in  one. 

Dillon.  J.  F..  Circuit  Court  Reports,  vol.  1  re- 
printed in  California;  1884. 

Drake.  E.  B..  Compilation  of  Spanish  Grants; 
1861. 

Election  Laws  of  California  ;  1899. 

Estee.  M.  M..  Pleading.  Practice  and  Forms. 
1st  edition.  3  vols.,  1869:  2d  edition,  by  John 
Haynes.  3  vols..  1879;  3d  edition,  by  C.  P. 
Pomeroy.  3  vols..  1885;  4th  edition,  by  C.  T. 
Boone,  3  vols..  1897. 

Finlayson's  Street  Law. 

Fisher.  R.  A.,  Digest  of  English  Criminal 
Law;  edited  by  Albert  Hart;  1872. 

Flint.  J.  H..  Law  of  Trusts;   1890. 

Florida  Reports,  vol.  10. 

Freeman.  K.  C.  Civil  Executions;  ist  edition. 
1876.  I  vol.;  2d  edition.  1888.  2  vols.^;  3d  edi- 
tion. 1899.  3  vols. 

Freeman.  A.  C.  Cotenancy  and  Partition;  ist 
edition.  1874;  2d  edition,  1886. 


Freeman,  A.  C,  Judgements;  ist  edition,  1873, 
I    vol.;   2d  edition,   1874,   i   vol.;   3d  edition, 
1881,  I  vol.;  4th  edition,  1892,  2  vols. 
Garfielde    (S.)    &   Snyder    (F.   A.),   Compiled 

Laws  of  California;  1850-1853. 
Gear,   H.   L.,   Index   Digest   of   California   Re- 
ports, vols.   I  to  67  in  I  vol. ;  1887. 
Gear,  H.  L..  Digest  of  California  Reports;  vols. 

1-64,   I   vol.;   1886. 
Gear.  H.  L..  Landlord  and  Tenant;  1888. 
Hall,  F.,  Land  and  Mining  Laws  of  Mexico : 

1885. 
Halleck,   H.   W.,   Mining   Laws   of   Spain   and 

Mexico ;  1859. 
Halleck,  H.  W.,  International  Law;  1861. 
Hammond,  W.  G..  Blackstone.  4  vols. ;  1892. 
Hawley,    T.    P.,    Digest    of    Nevada    Reports ; 
1878;   covering   Nevada   Reports,  vols.    1-12, 
and  Sawyer's  Circuit  Court  Reports,  vols,  i 
to  4. 
Harlow,    W.    S.,    Sheriffs;    ist    edition,    1884; 

2d  edition,  1895. 
Hayne,  R.  Y.,  New  Trial  and  Appeal ;  2  vols,, 

1884;  2  vols,  in  I,  1884. 
Harston,  E.  F.  B.,  Practice;  1877. 
Hart.  J.  H..  Practice  Act ;  1853. 
Hart  on   Mining   Statistics  of  California.   Ne- 
vada and  United  States,  with  Forms ;  1877. 
Hawes,  H.,   Parties  to  Actions ;   1884. 
Hawes,  H.,  Jurisdiction;  1884. 
Hawes,  Horace,  Will  Case;   1872. 
Heard  on  Curiosities  of  the  Law. 
Hent,    R.    W.,    Forms    and    Use    of    Blanks ; 

1866 
Henning  on  Insolvency. 
Henning's    Constitution    of    California ;    Palm, 

Los  Angeles  ;  1898. 
Henning's    County    Government  :    Palm ;    Los 

Angeles;   1897. 
Heron.  C.   H..  Jurisprudence;   1877. 
Hester's  Case  and  Citation  Index ;  1897. 
Hill,  W.  L.,  Washington  Codes,  2  vols. ;  1891. 
Hill,  W.  L.,  Annotated  Codes  of  Oregon;   ist 
edition.    2    vols..    1887;    2d    edition.    2    vols., 
1892. 
Hittell.    T.    H..    General    Laws    of    California; 

1850-1864;  2  vols.;    1865. 
Hittell's  Supplement  to  Hittcll's  Codes  of  Cal- 
ifornia. I  vol. ;  1880. 
Hittell.  T.   H..   General   Laws  of  California.  2 

vols.  ;  18SO-1864. 
Hoffman.  6..  Land  Cases.  1853-1858;  1862. 
Idaho  Reports,  vol.  1  ;   1881. 
Indermaur.  J..  Common  Law:  edited  by  E.  H. 

Bennett:   1878. 
Irrigation  Laws:  see  Works.  J.  1). 
James'  Alechanics'  Liens  in  California. 
Joyce,  J.  A..  Insurance.  4  vols. ;  1897. 
Jones.   B.   W..  Evidence.  3  vols. ;   1896. 
Labatt.  H.   J..  Digest  California  Reports.   1-16, 

2  vols. ;   1861. 
Labatt.  H.  J..  Practice  .\ct ;  ist  edition.  1856; 
2d  edition.   1858;   3d  edition,   i860;  4th  edi- 
tion, 1861  ;  5th  edition,  1868. 
Langdon.   C.   W.,   Treatise   on   Justices  of  the 

Peace:   1870.     Supplement  to  above,  1885. 
Lavvson.  J.  D.,  Expert  and  Opinion  Evidence; 

1883. 
Lawson,  J.  D..  Concordance:  1882. 
Lawson,  J.   D.,  Defenses  to  Crime;   vol.    i   by 

Harrigan    (L.    B.)    &    Thompson     (S.    D.), 


History  of  the  Bench  and  Bar  of  California. 


1133 


1874;  vol.  2  by  Lawson,  1884;  vols.  3.  4  and 
5  by  Lawson,  1885.  Supplement,  or  vol.  6, 
1892. 
Lawson,  J.  D.,  Leading  Cases  Simplified;  Com- 
mon Law,  1882,  I  vol.;  Criminal  Law,  1884, 
I  vol. ;  Equity,  1883,  i  vol.     Reprinted,  1891  ; 

3  vols,  in  I. 

Lawson,  J.  D.,  Rights,  Remedies  and  Practice. 

8  vols.;  1889-1891. 
Lawson,  J.  D.,  Usages  and  Customs;  1881. 
Lawson,  J.  D.,  Digest  of  Nevada  Reports,  vols. 

I  to  20 ;  1892. 
Lawson,  J.  D.,  Presumptive  Evidence;   1S86. 
Lindley,  C.  H.,  Mines,  2  vols. ;  1897. 
Lube's   Equity   Pleading;    1882;   2d   edition  by 

Stewart  Rapalje;  1889. 
Mack,  W..  Digest  of  American  State  Reports, 

1-24,  I  vol. 
Mechanics'    Liens,   the    Law    of,    with    Forms ; 

by    Frank   James,    of   the   Los    Angeles   bar, 

Los  Angeles ;  Chas.  W.   Palm  Co.,  one  vol. ; 

1900. 
Morrison,  R.  S.,  Mining  Digest;  1878. 
Montana  Codes  ;  annotated,  in  2  vols.,  and  in 

4  vols. 

Montana  Reports,  vols.  8  to  15,  inclusive. 

Myrick,  M.  H.,  Probate  Reports,  i  vol. ;  1880. 

National    Bankruptcy   Law ;    1898. 

Newmark,  N.,  Law  of  Sales;  1888. 

Nevada  Reports,  vols.  10  to  17,  inclusive. 

New  Mexico  Reports,  vol.  i;  1881., 

Notes  on  United  States  Reports,  12  vols. ;  1900. 

Notes  on  California  Reports,  4  vols. ;  1898. 

Olney,  W.,  Code  of  Civil  Procedure,  pocket 
edition  ;   1872-3-4-5. 

Oregon  Reports,  vols.  2  to  8,  10,  11  and  12  to 
17- 

Pajet  on  Judicial   Puzzles. 

Parker,  C.  H.,  Digest  California  Reports,  vols. 
I  to  34.  2  vols ;  1869. 

Parker,  C.  H.,  General  Laws  of  California,  i 
vol.;  1864-1871.  Supplement  to  Hittcll ; 
1871. 

Parker,  C.  H.,  Practice  Act;  1868. 

Piatt,  H.  G.,  Property  Rights  of  Married 
Women  in  California,  Texas  and  Nevada; 
1885. 

Pomeroy,  C.  P.,  Smith's  Mercantile  Law;  1888. 

Pomeroy.  J.  N.,  Equity  Jurisprudence;  ist  edi- 
tion, 1880,  3  vols.  ;  2d  edition,  by  C.  T.  Boone, 
J.  N.  Pomeroy,  Jr.,  and  C.  P.  Pomeroy,  3 
vols.  ;  1892. 

Pomeroy,  J.  N.,  Municipal  Law,  2d  edition, 
1889. 

Pocket  Codes  of  California,  5  vols. ;   1897. 

Proffatt,  John,  Private  Corporations  in  Cali- 
fornia ;  1876. 

Proffatt,  John,  Jury  Trial;  1876. 

Proffatt,  John,  Notaries;  Tst  edition.  1877;  2d 
edition  by  Tyler  (J.  F. )  and  Stephens  (J. 
J.)  :   1892. 

Proffatt.  John,  Cin"iositics  of  Law  of  Wills. 

Rapalje.  J.,  Digest,  3  vols.;  1891. 

Rai)alie.   S..  Criminal   Prncedurc ;    1890. 

Rahill,  J.  J.,  Corporation  Accounting  and  Cor- 
poration Law ;   1899. 


Rhodes,  A.  L.,  Digest  California  Reports,  vols. 
I  to  55;  2  vols. ;   1882. 

Rogers  on  the  Law  of  the  Road. 

Rogers  on  the  Law  of  Hotel  Life. 

Sawyer,  H.  C,  Nerve  Waste ;  1900. 

Sawyer  L.,  Circuit  and  District  Court  Reports, 
14  vols. 

Shearer,  L.,  Digest  of  California  Reports,  vols. 
I  to  10;  I  vol. ;  1859. 

Sickels,  D.  K.,  Mining  Decisions;  1881. 

Sharpstein,  J.  R.,  Digest  of  Life  Insurance; 
1872. 

Smythe,  J.  H.,  Homesteads ;  1875. 

Skidmore,  W.  A.,  Revised  Statutes  of  U.  S.  re- 
lating to  mineral  lands;  1875. 

Spaulding,  G.  W.,  Public  Land  Laws;  1884. 

State  Banks  and  Bank  Officers  (with  cita- 
tions), H.  W.  McGee,  B.  L. ;  Palm;  Los 
Angeles ;  1898. 

State  Edition  of  Codes  of  California,  by  Creed 
Haymond,  J.  C.  Burch  and  C.  H.  Lindley, 
5  vols. ;  1872. 

Stewart,  D.,  Marriage  and  Divorce ;  1884. 

Stewart,  D.,  Husband  and  Wife ;  1885. 

Thompson,  A.  W.,  Law  of  the  Farm ;  1877. 

Thompson,  S.  D.,  Carriers;  1880. 

Thompson,  S'.  D.,  Homesteads  and  Exemp- 
tions ;   1878. 

Thompson,  S.  D.,  Negligence,  2  vols.;  1880. 

Thompson,  S.  D.,  Stockholders ;  1879. 

Thompson,  S.  D.,  Corporations,  6  vols.;  1884- 
1895;   vol.  7,   1899. 

Treadwell,  A.  B.,  The  San  Francisco  Char- 
ter;   1899. 

Triplett's  Forms.  2  vols. ;  1889. 

Utah  Reports,  vols,  i  and  3. 

Wade.  W.  P.,  Attachment,  2  vols. ;   1886. 

War  Revenue  Law ;  1898. 

Washington  Reports ;  Washington  Territory 
3  vols. ;  Washington  Reports,  vols,  i  to  6. 

Weeks,  E.  P.,  Damnum  Absque  Injuria;  1879. 

Weeks,  E.  P.,  Depositions ;  1879. 

Weeks,  E.  P.,  Attorneys,  2d  edition  by  C.  T 
Boone. 

Weeks.  E.  P..  Mineral  Lands;  1877. 

West  Coast  Reporter,  9  vols.;  1884-1885. 

Wheeler,  A..  Land  Titles  in  San  Francisco; 
1852. 

White  (C.  L.)  &  George  (W.  F.).  Crmimal 
Law  and  Practice;   1881. 

Whitemore,  W.,  Index  of  California  Reports, 
vols.  I  to  53 ;  I  vol. ;  1880. 

Wood,  W.  H.  R..  Digest  of  the  Laws  of  Cali- 
fornia ;  1850-1860.  being  a  2d  edition;  i860. 

Wood,  W.  H.  R.,  Digest  of  Laws  of  Califor- 
nia;  I 850- I 857. 

Works,  J.  D..  Irrigation  Laws  and  Decisions 
of  California;  being  reprint  of  article  writ- 
ten for  this  History  (see  pp.  101-170). 

Wyoming  Reports,  vol.   i  ;  1879. 

Yale,  Gregory,  Mining  Claims  and  Water 
Rights;  1867. 

Yale.  Gregory.  Private  Land  Titles;  1861. 

Zabriskie,  J.  C,  Land  Laws  of  the  U.  S.,  i  vol.; 
1870. 


1134 


History  of  the  Bench  and  Bar  of  California. 


NATHAN  NEWMARK. 

Nathan  Newmark  was  born  in  New  York 
city,  June  3,  1853.  Coming  to  California  with 
his  parents  in  1856.  he  lived  in  Sacramento 
until  the  flood  of  1861-62  drove  him  to  San 
Francisco,  where  he  has  resided  ever  since, 
with  the  exception  of  two  years  spent  at  Cam- 
bridge. ^Massachusetts,  while  attending  the 
Harvard  Law  School,  and  a  visit  to  Europe. 

Mr.  Newmark  annotated  the  California  Code 
of  Civil  Procedure  in  1880.  and  the  California 
Political  Code  in  1881.  In  1887  he  issued  a 
work  on  Sales,  and  in  1888  a  work  on  Bank 
Deposits.  He  has  also  contributed  to  the 
American   and   English    Encyclop.Tdia   of  T.aw. 


and  to  the  Central  Law  Journal  and  other  legal 
periodicals.  He  is  a  graduate  of  the  San  Fran- 
cisco Boys'  High  School  and  of  the  University 
of  California.  He  was  admitted  to  the  bar  in 
1875. 

Devoted  to  his  special  province.  Mr.  New- 
mark  passes  his  time  in  the  great  Law  Library 
in  the  San  Francisco  City  Hall.  We  had  lost 
sight  of  him  for  a  lime,  pursuing  his  quiet 
but  industrious  and  important  work  as  a  law 
writer,  but  he  comes  into  most  honorable  view 
just  as  we  close  our  History — too  late,  in- 
deed, to  be  placed  in  the  general  array  of  our 
subjects,  but  after  all  it  is  most  fitting  to 
name  him  here,  in  connection  with  the  pro- 
ductions of  his  and  kindred  legal  minds. 


Stcpbcn  fID.  Mbite 


fln  /Iftemortam 


I 


Stephen  M.    White 


■2(3  e^  ^c  (^^  (^  (4a  oKa  c!^  ^ 


HISTORY  of  the 
BENCH  and  BAR 
of  CALIFORNIA 


■9?  «f"^'  ^  vr  •??  *  ^  ^T 


Stephen  HD,  Mbite  ^  Ifn  flDeinoriain 


In  our  sketch  of  Mr.  White,  on  page  642, 
he  is  referred  to  as  "perhaps  the  most  eminent 
of  the  State's  native  sons."  Since  it  was  writ- 
ten his  career  has  ended,  and  the  general  judg- 
ment of  the  bar  and  the  press  has  more  than 
confirmed  the  estimate  made  while  he  was  yet 
with  us.  We  placed  him  among  our  "Strong 
Men  of  Today,"  and  Fame  will  keep  him 
among  the  strongest  men  in  our  history 
through  all  time. 

Mr.  White  died  at  his  home  in  Los  Angeles, 
on  the  21  St  of  February,  1901.  He  had  com- 
pleted his  forty-eighth  year  on  January  19.  On 
the  morning  following  his  death  the  leading 
paper  of  Southern  California,  which  was  al- 
ways opposed  to  Mr.  White  in  politics,  but 
whose  proprietor  was  his  personal  friend  and 
professional  client,  declared  him  to  be  "the 
greatest  man  the  State  has  produced  in  the 
half  century  of  its  existence."  The  language 
was  not  stronger  than  that  employed  by  many 
other  journals,  of  all  shades  of  political  opin- 
ion, and  by  bar  leaders  in  memorial  council. 

The  legislature  was  in  session  at  the  time 
of  Mr.  White's  death.  Both  houses  took  ap 
propriate  action.  In  the  senate  Mr.  Ashe  of- 
fered a  joint  resolution  providing  for  the  ap- 
pointment of  a  committee  of  three  from  the 
senate  and  five  from  the  assembly,  to  include 
the  president  and  speaker,  to  attend  the  fu- 
neral. A  like  resolution  was  introduced  in 
the  assembly  by  Mr.  Fisk.  Both  resolutions 
were  adopted.  Memorial  resolutions  were  also 
adopted  by  both  houses,  the  authors  being 
Senator  Sims,  of  Sonoma,  and  Assemblyman 
Grove  L.  Johnson,  of  Sacramento.  Those 
gentleman  made  impressive  speeches  on  the 
occasion.  Feeling  tributes  were  also  paid  by 
Senatorr  Simpson,  of  Los  Angeles,  and  Short- 
ridge,  of  Santa  Clara,  and  Assemblymen 
James  and  Melick  of  Los  Angeles.  McBcth 
and  Schlcsinger.  of  San  Francisco,  and  Rad- 
clifF,  of  Santa  Cruz.  The  assembly  adjourned 
under  Hon.  Grove  L.  Johnson's  resolution, 
and  the  senate  adjourned  pursuant  to  a  resolu- 
tion offered  by  Hon.  John  F.  Davis,  of  Ama- 
dor. 


The  joint  committee  of  the  legislature  which 
attended  the  funeral  was  composed  of  Sen- 
ators Ashe,  Sims  and  Curtin,  and  Speaker 
Pendleton,  and  Assemblymen  Anderson,  Mel- 
ick. James.  Cowan  and  Guilfoyle. 

The    ex-Senator's    funeral    ceremonies    were 
conducted    at    the    Catholic    Cathedral    in    Los 
Angeles,   in  the  presence  of  a  larger  body  of 
representative     and     distinguished     men     than 
had  ever  assembled  in  the  State  on  a  like  oc- 
casion.    It  included  the  Governor  of  the  State, 
Hon.  Henry  T.  Gage ;  the  mayor  of  San  Fran- 
cisco,  Hon.   James   D.    Phelan ;    Speaker    Pen- 
dleton  of   the   assembly,   Hon.   James   G.   Ma- 
guire,  members  of  both  branches  of  the  legis- 
lature then  in   session,  the  mayor  of  Los  An- 
geles.  Hon.    M.    P.    Snyder,   and   leading   law- 
yers and  other  prominent  men   from  all  parts 
of  the  State.     The  active  pallbearers  were  the 
directors    of   the    Newman    Club   of   Los   An- 
geles, to  which   Mr.   White  belonged,  namely: 
John  A.  Francis   (president),  James  C.  Kays, 
L.  A.  Grant.  John  F.  Fay.  Jr..  R.  F.  Del  Valle. 
I.    B.    Dockwciler.    Joseph    Scott    and    H.    C. 
Dillon.       The     honorary     pallbearers,     among 
whose  names  will  be  recognized  the  first  men 
of    the    commonwealth,    residents    of    various 
sections,   were   the   following:     General  H.   G. 
Otis  and  e.v-Senator  Edward  Murphy,  Jr.,  of 
New   York,   who   served   for   six   years   in   the 
senate   with   Mr.   White ;    Governor   Henry   T. 
Gage,    Chief   Justice    Beatty    of    the    Supreme 
Court   and   six  associate  justices.   Hon.   E.   M. 
Ross.  Hon.  Olin  Wellborn.  Hon.  Lucicn  Shaw, 
Hon.   B.   N.    Smith.   Hon.   M.   T.   Allen.   Hon. 
Waldo  York.  Hon.  D.  K.  Trask.  Hon.  N.   P. 
Conrey,  Hon.   R.  j.   Waters.  Hon.  James  Mc- 
Lachlan.  Hon.  James   D.   Phelan.   Hon.  James 
G.    Maguire.    Hon.    W.    F.     Fitzgerald.    Hon. 
John    S.    Chapman.    Hon.    James    D.    Bickncll, 
Mayor  M.  P.  Snvder.  P.  W.  Powers,  John  T. 
Gaffey.    I.    H.    Polk.    Charles    Prager.    W.    W. 
Foote.    D.    M.    Dclmas.    John    Garber,    H.    W. 
Hellman.   M.   J.    Newmark.   K.    Cohn.   Eugene 
Germain.    Joseph    Mcsmer,   J.    M.    Elliott.    W. 
C.   Patterson.  J.   E.   Plater.  John   R.   Mathews, 
Major  H.  T.  Lee.  W.  H.  Perry.  J.  W.  Mitchell, 


1138 


History  of  the  Bench  and  Bar  of  California. 


William     Pridham,     Charles     Forman,     John 
Kenealy,    Richard    Dillon,    D.     M.    McGarry, 
Hon.   W.   A.   Cheney,   Hon.   J.   W   .McKinley, 
O.  W.  Childs,  J.  O.  Koepfli,  Henry  T.  Hazard, 
John   Crimmin,   W.   H.   Workman,   I.    N.   Van 
Nuys,  A.  J.  King,  Horace  Bell,  J.  A.  Redman, 
W.  R.  Rowland.  R.  Egan.  John  Foster,  W.  D. 
Gould.  T.  L.  Winder,  Judge  R.   B.  Carpenter, 
H^igh  L.  Macneil,  ex-Senator  Cornelius   Cole, 
W.   L.   Hardison,   C.   White   Mortimer.   Victor    . 
Ponet.  A.   Fusenot.  M.  Esternaux,  J.  Castruc- 
cio,    General    /\ndrade,   T.    L.    Duque,    A.    M. 
Stephens,  Jonathan   R.   Scott,  A.   W.   Hutton, 
Ben  Goodrich,  R.   H.   F.  Variel,  F.   P.   Flint, 
Hon.   W.  A.   Cheney,  Hon.  J.   W.   McKinley, 
B.  W.Lee,  S.  O.  Houghton,  Charles  Silent  and 
J.   A.   Anderson  Jr. ;   J.   S.    Slauson.   Kaspare 
Cohn.  F.  Q.  Storv  and  E.  F.  C.  Klokke;  Dr. 
John   R.   Havnes.   Dr.  Walter  Lindley,  Dr.   E. 
A    Bryant,  W.  R.  Burke,  Frank  Garret,  E.  F. 
Loud,  W.  A.  Clark,  J.  A.  Barham,  W.  H.  Al- 
ford,    R.    J.    Wilson,    Charles    Monroe,    J.    B. 
Sproule,    A.     F.    Jones.    Frank    McLaughlin, 
Frank    Flint,    Frank    R.    Finlayson.    John    P. 
Irish,  Gavin  McNab,  H.  B.  Gillis,  W.  R.  Rad- 
cliffe,  J.  H.  Farraher,  J.  J.  Dwyer,  J.  F.  Sulli- 
van, J.  A.  Filcher.  Edward  Maslini,  Walter  J. 
Trask.  Fred  Cox,  J.  H.  Sewall.  James  H.  Wil- 
kins.  T.  W.  H.  Shanahan,  H.  C.  Gesford,  T.  B. 
Bond.   Ed.   E.   Leake.   E.   L.    Coleman,   W.  V. 
Gaffev.  W.  R.  Jacobs,  Thomas  Flint,  Jr.,  John 
Curtin,  B.  F.  Langford.  D.  A.  Ostrom,  M.  F. 
Tarpey,   R.   B.   Canfield,  Marion   Cannon,   Ab- 
bot  Kinney,  George  H.  Fox,  C.   E.  Thom,  R. 
Porter    Ashe,    J.    Ross    Clark,    T.    E.    Gibbon, 
Willard  Stimson.  Frank  H.  Gould,  J.  V.  Cole- 
man.  Frank  J.   Moffatt,   R.    P.   Troy,   General 
P.  W.  Murphy,  J.  A.  Graves,  Fred  Harkness, 
W.    S.    Leake,    Dr.    W.    P.    Mathews.    C.    B. 
Younger,    W.    H.    Spurgeon.    Oscar    Trippett, 
Byron  Waters.  J.  Downey  Harvey.  George  S. 
Patton.  Peter  D.  Martin.  John  McGonigle,  Jar- 
rett    T.    Richards.    William    Graves.    John    A. 
Hick.=,   B.   D.   Murphy,   G.    G.    Goucher.   J.    C. 
Sims.    E.    H.    Hamilton,    N.    A.    Covarrubias, 
Max   Popper.   General  J.   W.   B.   Montgomery, 
Dr.  Joseph  Kurtz.  C.   F.  Heinzman.  C.   F.  A. 
Last.  J.  D.  Spreckels,  M.  H.  de  Young.  W.  R. 
Hearst.  T.   T.  Flvnn.  E.  B.  Pond.  E.  A.  Pus- 
chell.  Frank  J.   Heney,  Dr.  H.  Nadeau,  A.  B. 
Butler.   Walter   S.    Moore,   Garret    W.    McEn- 
eriicy.  James  H.  O'Brien.  J.  J.  Carrillo.  J.   B. 
Van  Demey,  A.  T.  Spotts,  John  P.  Dunn.  Ju- 
lius   Sieckes,    W.    D.    English.    T.    J.    Clunie. 
Warren    English.    Victor   H.    Metcalf.    W.   W. 
Bowers.  S.  M.  Shortridge,  George  .\.  Knight. 
W.  H.  L.  Barnes.  J.  C.  Campbell,  E.  S.  Pills- 
bury.  W.  E.  Dargie.  Judge  J.  V.  Coffev.  Judge 
VV.   W.   Morrow,  Judge  W.   D.  Gilbert.  Judge 
J.  J.  de  Haven,  J.  S.  Spear,  H.  W.  Frank,  F. 
M.  Coulter.  Niles  Pease,  H.  Jevne,  J.  Baruch, 
H.    C.    Lichtenberger,    W.    J.    Variel.    R.    J. 
Dillon.    L.    E.    Aubrey,    E.    A.    Meserve,    Dr. 
Carl    Kurtz,    M.    H.    Newmark.    Frederick   T. 
Griffith.  W.   G.  Hunt,  John   S.  Thaver,  J.  D. 
Hooker,    I.    A.   Lothian.   L.    C.    Schellcr.   Will 
Bishop  and  J.  W.  Lynch. 

The  mass  was  celebrated  by  Bishop  George 
Montgomery.  The  sermon,  a  very  practi- 
cal yet   moving  one,   was  preached  by   Bishop 


Horstmann  of  Cleveland,  Ohio,  who,  like  ex- 
U.  S.  Senator  Murphy  of  New  York,  and 
some  others  present,  was  on  a  visit  to  Los  An- 
geles. 

On  the  day  of  -the  funeral  the  flags  were 
at  halfmast  on  the  City  Halls  of  San  Fran- 
ci.sco  and  Los  Angeles.  In  one  city  he  was 
born,  in  the  other  he  died.  The  boards  of  su- 
pervisors of  both  cities  passed  appropriate  res- 
olutions on  the  subject  of  his  loss  to  the  State. 
On  the  day  of  his  death  Mayor  Snyder  of 
Los  Angeles,  with  commendable  promptness, 
made  public  suggestion  of  a  monument  to  the 
departed  leader,  in  the  following  proclama- 
tion : 

"Mayor's  Office.  Los  Angeles,  Cal., 
Feb.  21,  igoi. 
"With  profound  sorrow  the  mayor  of  the 
city  of  Los  Angeles  announces  the  death  of 
our  distinguished  fellow  townsman,  the  Hon. 
Stephen  Alallory  Wliite,  which  occurred  at  his 
residence  early  this  morning. 

"The  eminent  station  of  the  deceased,  his 
high  character,  his  magnificent  attainments,  his 
long  and  extraordinary  career  in  the  public 
service,  his  unfailing  devotion  to  the  cause  of 
the  people  of  his  native  state  and  his  splendid 
abilitv  which  he  contributed  to  the  discharge 
of  every  duty,  stand  conspicuous  and  are  in- 
delibly impressed  on  the  hearts  and  affections 
of  all. 

"Deeming  it  highly  proper  that  the  citizens 
of  our  municipality  should  take  the  initiative 
in  perpetuating  the  memory  of  California's 
greatest  son.  I  suggest  that  immediate  steps  be 
taken  to  erect,  at  some  suitable  place  within 
our  city,  an  appropriate  monument,  commem- 
orative of  Senator  White's  public  services,  the 
cost  thereof  to  be  defrayed  by  popular  sub- 
scription, the  voluntary  offering  of  a  grateful 
people. 

"As  a  mark  of  respect  to  the  memory  of 
this  eminent  and  faithful  public  servant,  I  re- 
quest that  the  city  hall  be  closed  on  Saturday. 
February  23.  the  day  of  his  obsequies,  and 
that  the  city  hall  flag  be  placed  at  halfmast  and 
so  remain   until   after  his  funeral. 

"M.  P.  Snyder, 

"Mayor." 
Mayor  Phelan  of  San  Francisco,  with  char- 
acteristic liberality  and  public  spirit,  made  the 
splendid  subscription  of  $2500  to  the  monu- 
ment fund  before  returning  to  his  home,  be- 
ing the  first  subscriber.  Hon.  Thomas  R. 
Bard.  Mr.  WMiite's  successor  in  the  United 
States  senate,  subscribed  $500.  Mr.  I.  W. 
Hellman,  the  San  Francisco  and  Los  Angeles 
banker,  subscribed  $250.  and  one  of  his  banks, 
the  Farmers  and  Merchants'  Bank  of  Los  An-, 
geles.  a  like  sum.  Mrs.  Eleanor  Martin  of 
San  Francisco  subscribed  the  same  amount, 
and  when  this  History  was  closed,  at  the  end 
of  March,  looi.  the  full  sum  desired.  $25,000. 
had  nearly  all  been  vouched  for.  The  monu- 
ment will  be  one  worthy  of  the  man  and  the 
State,  and  will  be  erected  in  some  distin- 
^nished  snot  in  Los  Angeles  city. 

Mr.  White's  will  was  written  four  days  be- 
fore his  death,  on  a  fly-leaf  torn  from  a  book. 
in  his  own  hand,  and  was  in  full  as  follows: 


History  of  the  Bench  and  Bar  of  California. 


1139 


Los  Angeles,  Feb.  17,  1901. — I  hereby  will. 
devise  and  bequeath  to  my  beloved  wife,  Hor- 
tense,  all  my  property.  I  appoint  her  execu- 
trix of  this  rny  last  will  without  bonds.  I  rec- 
ognize my  children,  William,  Hortense,  Es- 
telle  and  Gerald  G.  I  revoke  all  wills  here- 
tofore  made  by  me. 

Stephen  M.  White. 

'1  he  widow,  through  her  attorneys,  Bicknell, 
Gibson  &  frask,  petitioned  for  letters  of  ad- 
ministration. 

The  petition  showed  that  the  deceased  left 
property  valued  at  about  $118,000.  The  real 
property  comprised  an  interest  in  280  acres  of 
land,  valued  at  $4000;  lot  in  the  O.  W.  Childs 
tract,  $5000;  two  lots  in  East  Los  Angeles, 
$800 ;  five  lots  in  the  Lewis  tract,  $500 ;  lot  in 
the  Dana  tract,  $500;  two  lots  in  Mrs.  Glea- 
son's  subdivision,  $200;  an  individual  one-half 
interest  in  527  acres  in  the  Repetto  ranch, 
$20,000;  interest  in  171  feet  fronting  on  Main 
street,  between  Third  and  Fourth,  known  as 
the  J.  G.  Downey  homestead,  $30,000 ;  interest 
in  lands  in  the  Leonis  estate ;  five  lots  in  the 
Washington  Gardens  tract,  $1850 ;  lots  in  the 
Wolfskin  Orchard  tract,  $1000;  and  three  lots 
in  the  Morris  Vineyard  tract,  $1250. 

The  personal  property  included  outstanding 
accounts,  $5000 ;  law  library,  $4000 ;  private  li- 
brary, $500;  other  personal  property,  $1500; 
stock  in  the  Title,  Insurance  and  Trust  Com- 
pany, and  insurance  policies  aggregating 
$42,000. 

The  heirs  are  the  widow ;  William  White, 
aged  sixteen  ;  Hortense  White,  aged  thirteen  ; 
Estelle  White,  aged  fourteen,  and  Gerald  G. 
White,  aged  five. 

MEMORIAL  OF  THE  BAR. 

On  Thursday,  February  28,  1901,  over  one 
hundred  members  of  the  Los  Angeles  Bar  As- 
sociation met,  and  heard  the  reading  by  their 
president,  Hon.  R.  H.  F.  Variel,  of  the  report 
of  the  committee  before  appointed  to  draft 
resolutions  on  the  subject  of  the  life  and  death 
of  their  late  eminent  brother.  The  report  was 
listened  to  with  intense  interest,  and  was  unan- 
imously adopted.     It  is  as  follows : 

"IN  MEMORIAM. 

"1  he  symbol  of  the  broken  column,  typify- 
ing the  untimely  death  of  a  strong  man 
stricken  down  in  the  zenith  of  his  i)Ower  and 
fame,  in  the  midst  of  his  splendid  usefulness, 
was  never  more  strikingly  applicable  than  in 
the  death  of  the  distinguished  man  who  has 
just  passed  away. 

"Never  since  the  golden  sun  of  the  Occident 
flamed  bright  and  beckoning  upon  the  flag  of 
our  country  has  any  of  her  notable  sons  at- 
tained to  the  commanding  eminence  which  is 
with  common  thought  accorded  to  the  char- 
acter and  achievements  of  Stephen  Mallory 
White. 

"The  stock  from  which  he  sprang  has  pro- 
duced many  eminent  men.  California,  too, 
can  boast  of  a  long  line  of  nuistrious  dead. 
But  none  of  these  may  justly  claim  a  better 


right  than  he  to  enduring  fame — to  have  his 
name  emblazoned  in  letters  of  ineffaceable 
light  upon  the  very  foundations  of  the  capitol 
itself.  And  in  our  State  pantheon  his  must 
ever   be   an   honored   place. 

"Born  and  reared,  not  in  poverty,  and  yet 
with  none  of  the  advantitious  aids  of  fortune 
or  of  inherited  wealth  or  position,  he  achieved 
by  force  of  his  indomitable  genius  and  his 
rugged,  masterful  strength  of  character,  and 
within  those  early  years  when  many  men  of 
genius  are  yet  struggling  for  recognition,  an 
honorable  career  that  well  may  challenge  the 
admiration  of  the  world. 

"We  first  behold  him  a  young  attorney  at 
this  bar,  where  he  took  his  modest  place,  an 
untried,  unknown,  unheralded  man,  in  April, 
1875.  Not  long  did  he  remain  obscure,  for 
soon  we  behold  him  discharging  with  brilliant 
ability  and  success  the  duties  of  district  at- 
torney of  this  county. 

"And  then  a  new  star  rose  rapidly  in  the 
West.  Ricnly  endowed  with  all  those  gifts 
which  go  to  make  the  successful  lawyer,  the 
great  orator,  he  sought  with  the  most  untir- 
ing diligence  and  effort  and  the  most  exhaust- 
ive labor  to  perfect  his  superb  powers.  And 
soon  he  became  known  as  a  finished  lawyer,  a 
powerful  advocate,  a  forensic  gladiator  of  the 
first  ability. 

"We  next  behold  him  valiantly  battling,  with 
not  less  marked  distinction,  on  the  uncertain 
field  of  politics ;  and  successively  he  rose  to 
preside  over  a  state  and  then  a  national  .con- 
vention of  his  party,  to  be  a  state  senator,  a 
lieuteant-governor,  and  then  a  senator  of  the 
United  States. 

"In  all  these  large  public  relations  he  always 
rose  to  the  demands  of  every  occasion  and 
never  failed  to  wield  a  powerful  influence  for 
what  was  right  and  just,  according  to  his  own 
convictions ;  and  even  from  his  opponents  he 
always  commanded  the  most  profound  atten- 
tion and  respect. 

"His  most  eminent  characteristic  lay  in  his 
power  to  influence  deliberative  bodies,  and  he 
reached  the  highest  expression  of  this  great 
gift  during  his  career  in  the  United  States 
senate.  His  record  there  is  part  of  the  im- 
perishable history  of  that  illustrious  body,  and 
not  soon  will  the  renown  which  he  there 
achieved  be  covered  by  the  silence  of  ob- 
livion. 

"In  politics  he  early  espoused  the  Democratic 
faith,  and  was  always  loyal  to  his  professions. 
His  views  unon  great  national  questions,  how- 
ever, were  never  unduly  colored  by  partisan 
prejudice,  but  were  rather  tempered  by  a 
wise  and  calm  conservatism  that  always  gave 
his  counsel  great  weight.  On  more  than  one 
occasion  he  led  a  forlorn  hope  to  certain  de- 
feat, rather  than  surrender  his  convictions. 
He  was  the  friend  of  the  people  in  his  en- 
deavors to  preserve  unimpaired  the  purity  of 
the  ballot  and  to  compel  the  practice  of  clean 
methods  in  politics  and  legislation.  While  he 
was  nowise  hostile  to,  or  prejudiced  against, 
organized  capital,  or  wealth  in  any  form,  nev- 
ertheless he  firmly  believed,  above  all  things, 
in  the  supremacy  of  the  law,  and  the  right  of 


1140 


History  of  the  Bench  and  Bar  of  California. 


the  people  to  govern  themselves  according  to 
the  will  of  the  majority  when  constitutionally 
expressed,  ana  especially  in  the  right  of  every 
citizen  to  pursue  his  own  true  and  substantial 
happiness  so  far  as  consistent  with  the  equal 
and  just  rights  of  others  before  the  law.  He 
was  the  steadfast  foe  of  fraud,  force  and  vio- 
lence in  whatever  guise  presented — whether 
expressed  through  the  machinations  of  the  po- 
litical machine,  or  the  corrupt  or  insidious  use 
of  wealth  or  place,  or  whether  manifested 
through  what  he  considered  the  insolent  ag- 
gressions of  great  corporate  influence  or  the 
unjustifiable  extensions  of  the  large  powers 
of  government. 

"As  an  orator  at  the  bar,  before  a  jury,  on 
the  stump,  before  a  convention,  or  in  the  halls 
of  legislation,  he  was  matchless — irresistible. 
With  a  fine-toned,  sympathetic,  far-reaching 
voice  that  ever  rang  true  and  sincere,  and 
speaking  ever  from  profound  convictions  that 
were  the  result  of  earnest  thought  and  study, 
he  always  commanded  large  and  appreciative 
audiences. 

"He  was  a  man  of  great  public  spirit,  and 
he  believed  that  public  office  was  a  public 
trust ;  and  a  leading  thought  with  him  always, 
in  every  public  station,  and.  indeed,  through- 
out his  orivate  career,  was  the  general  welfare 
of  the  public.  Not  soon  will  the  people  of  the 
West  find  another  such  champion  to  speak  for 
them,  or  who  will  pour  forth  the  rich  treasures 
of  his  mind  in  such  unstinted  measure,  or  with 
such  force  or  power,  or  such  disregard  of 
self. 

"But  while  we  may  appropriately  dwell  with 
admiration  upon  those  striking  qualities  which 
enabled  him  to  achieve  success  on  the  larger 
fields  of  action,  it  is  of  more  consequence  for 
us  to  record  that  our  departed  brother  was 
above  all  a  man  of  the  highest  integrity  and 
honor  in  all  the  relations  of  life.  He  never 
stooped  to  win  success,  place  or  power  by  any 
indirection,  ne  never  corrupted  and  he  was 
incorruptible.  He  was  sunny,  o^enial.  affable, 
annroachable — a  loyal,  generous  friend ;  a 
courteous,  honorable  foe. 

"In  his  intercourse  with  his  brethren  of  the 
bar  he  was  manly,  kind  and  considerate.  Be- 
fore the  court  he  was  modest  and  courteous, 
but  withal  marked  by  a  dignity  that  stamned 
him  with  the  seal  of  greatness.  He  always 
sought  to  be  right,  he  always  reasoned  hon- 
estly, and  never  did  he  willfully  pervert  his 
great  powers  before  either  judge  or  jury  in  the 
endeavor  to  deceive  the  one  or  mislead  the 
other  that  injustice  or  wrong  might  knowingly 
be  done. 

"It  is  to  be  deplored  that  more  transcripts 
of  his  many  great  speeches  have  not  been  pre- 
served. What  was  greatest  in  them  could  not 
be  written,  and  has  passed  away  with  the  man. 
But  they  are  not  forgotten,  and  the  recollec- 
tion of  their  striking  brilliance  will  long  be 
cherished  and  preserved,  with  the  fragrant 
memory  of  his  many  virtues  as  lawyer  and 
man,  as  citizen  and  friend,  as  among  the  most 
valued  traditions  of  this  bar. 

"The  same  fine  spirit  of  duty,  chivalry,  and 
devotion    which   marked    his   public    and   pro- 


fessional  career   adorned   his   private   life   and 
beautified  his  domestic  relations. 

"To  his  family  he  leaves  the  priceless  mem- 
ory of  his  devotion  and  protection,  to  his 
friends  the  recollection  of  his  loyalty  and 
truth,  to  his  brethren  of  the  bar  an  example 
of  professional  achievement  worthy  of  all  im- 
itation, to  his  home  and  country  the  heritage 
of  many  good  works  wrought  in  their  behalf, 
and  to  all  struggling,  ambitious  young  men 
everywhere  he  leaves  the  record  of  a  career 
which  unmistakably  demonstrates  the  mighty 
truth  that  a  deserving,  capable  man  may  yet 
confidently  aspire  in  this  age,  mercenary 
though  it  be,  and  that  he  can  surely  win 
the  highest  professional  and  political  distinc- 
tion without  departing  from  the  path  of  recti- 
tude or  the  practice  of  common  honesty. 

"To  use  his  own  last  words.  'The  evidence 
is  all   in.   the   case   is   submitted.' 

"Great  lawyer,  great  man,  great  citizen, 
great  soul,  farewell ! 

"Wherefore,  brethren  of  the  bar  of  Los  An- 
geles, your  committee,  appointed  in  general 
bar  meeting  assembled,  desiring  only  to  ex- 
press a  true  estimate  of.  the  character  and 
worth  of  our  departed  brother  without  at- 
tempting any  detailed  review  of  the  events  of 
his  notable  life  work,  have  prepared  this  me- 
morial and  submit  it  for  your  approval,  with 
the  suggestion  that  it  be  further  noted  so  as 
to  be  a  part  of  this  record,  that  our  departed 
brother,  Stephen  Mallory  White,  was  born 
January  19,  1853.  at  San  Francisco,  State  of 
California,  and  that  he  died  February  21,  1901, 
in  the  city  of  Los  Angeles. 

"'We    recommend    that    an    engrossed    and 
signed  copy  of  this  memorial  be  furnished  to 
his   family  and  to  his  mother ;   that  copies  be 
given  to   the   press,   and   that   a   copy   be   pre- 
sented  to   each    of   the   Federal    and    Superior 
Courts  in  this  city  by  members  of  the  bar  to 
be  selected  by  your  honorable  body,  with  the 
request   that   it   be  transcribed  at  length   upon 
the  minutes ;   and  that  copies  be  furnished  to 
the    State    Supreme    Court,    the    State    senate 
and  lo  the   senate   of  the   United   States. 
"Henry  T.  G.-vge, 
"Governor  of  California. 
"Erskine  M.  Ross, 
"United    States   Circuit   Judge,   Ninth    Circuit, 

"Olin  Wellborn. 
"United   States   District  Judge.   Southern   Dis- 
trict California. 

"LUCIEN     Sh.'XW. 

"Judge     of     Superior     Court,     Los     Angeles 

county. 

John  D.  Bicknell, 
J.  S.  Chapman, 
George  J.  Denis, 
R.  F.  Del  Valle. 
Robert  N.  Bulla, 
Charles   Monroe, 
R.  H.  F.  Variel, 
Members  of  the   Bar. 

Los   Angeles,    Cal..    Feb.    28.    1901. 

After  the  reading  of  the  memorial.  Judge 
B.  N.  Smith  spoke  feelingly  of  the  deceased, 
recalling   many   acts   of   kindness,   of   upright- 


History  of  the  Bench  and  Bar  of  California. 


ness  and  honesty,  showing  the  grand  nature 
of  the  man  and  his  fitness  to  hold  the  honored 
places  he  had  been  called  to  fill.  Hon.  Will 
D.  Gould,  as  a  lifelong  friend  of  the  deceased. 
paid  a  touching  tribute  to  the  memory  of  his 
departed  friend. 

Hon.  John  W.  Mitchell,  who  is  sketched  in 
this  History  (as  are  nearly  every  one  of  the 
other  gentlemen  above  named)  closed  the 
meeting  with  a  eulogy  of  Mr.  White,  which 
a  leading  journal  declared  to  be  "beautiful, 
grand,  and  at  the  same  time  heartfelt  and 
touching." 

The  best  public  speakers,  including  the  ora- 
tor, Delmas,  at  meetings  in  various  parts 
of  the  State,  made  the  mournful  occasion  the 
subject  of  their  most  impressive  utterances. 
'1  tie  Herald,  of  Los  Angeles,  published  this 
from  the  pen  of  John  S.  Chapman,  the  bar 
leader  of  that  city,  under  the  caption.  "The 
Tribute  of  a   Friend" : 

"When  death  claimed  Senator  White  it  un- 
doubtedly extinguished  the  most  brilliant  gen- 
ius which  the  State  of  California  now  knows. 
or  perhaps  ever  knew.  The  nation,  indeed. 
has  furnished  few  who  were  his  equals  and 
scarce  any  superior.  Other  men.  doubtless. 
could  be  named  who  might  rival  him  in  some 
particular  talents  or  departments  of  intelli- 
gence, but  another  possessing  a  mind  equipped 
for  all   occasions,   possessing  all   of  his  quali- 


1141 

tics— tact,  judgment,  skill,  logic,  rhetoric,  in- 
formation and  learning  in  every  department  of 
life — and  in  an  equal  degree,  we  have  never 
met.  He  was  fitted  for  the  council  or  the 
field— profound  in  meditation,  irresistible  in 
action.  And  with  his  great  mental  qualities, 
he  possessed  a  remarkable  amiability  of  tem- 
per, a  fund  of  humor,  a  generous  and  genial 
nature — qualities  not  always  associated  with 
genius,  but  were  in  him  as  excellent  and  as 
rare,  almost,  as  his  powers  of  mind  and  ver- 
satility of  talents." 

The  faculty  of  the  State  Normal  School  of 
Los  Angeles,  by  E.  T.  Pierce,  president,  and 
Alelville  Dozier,  secretary,  issued  a  testimo- 
nial, which  shed  light,  as  the  Express  well 
observed,  on  a  less  understood  and  less  ap- 
preciated side  of  Mr.  White's  character. 

"The  cause  of  education  in  general."  we 
quote  from  this  testimonial,  "and  the  Normal 
School  in  particular,  found  in  Senator  White 
both  an  earnest  and  an  intelligent  friend  and 
advocate.  Himseii  a  firm  believer  in  public 
enlightenment,  and  a  zealous  advocate  of  civil 
liberty,  he  recognized  the  one  as  the  outgrowth 
of  the  other,  and  each  dependent  upon  the 
other  for  its  vei:y  existence,  and  his  labors 
in  connection  with  educational  questions  were 
ever  in  harmony  with  this  high  ideal  of  popu- 
lar instruction  as  the  basis  of  popular  inde- 
pendence." 


INDEX 


ARTICLES  and  GENERAL  HEADS 


A  Review  of  Military-Civil  Govern- 
ment, 184C-50.  Samuel  W.  Holla- 
day    3 

Adoption   of  the   Common    Law.      The 

Editor    47 

Attornev-Generals    of    California 357 

Broderick  Will  Case.    The  Editor 209 

California    Law    Books 1181 

Citizen.ship     of     Chinamen.     Marshall 

B.    Woodworth    1099 

Federal  and  State  Judiciary,  Past  and 

and    Present.      The    Editor 6.53 

Introductory:  Historical  View  of 
the  Judiciary  System  of  Cali- 
fornia.    Henry  H.  Reid XV 

Irrigation  Laws  and  Decisions  of  Cali- 
fornia.    John    D.    Works 101 

Legal  Education  in  the  State  Uni- 
versity.    Gnstav  Gutsch    221 

Lynch    Law    in    California.      John    G. 

Jury    267 

Masters   Who    Followed   the   Pioneers. 

The   Editor    559 

Men  of  the  First  Era.     The  Editor 417 

Necrologv      of      Recent      Years.      The 

Editor   537 

Our  First  Water  Rights  Decision ,^61 

Recovery    of    the    Pious    Fund.      John 

T.    Doyle    81 

Reminiscences  of  Our  Judges  and 
I>awvers.  E.  W.  McKinstry; 
William  T.  Wallace;  M.  M. 
Estee ;   The  Editor 377 

Seniors    of    the    Collective    Bar.      The 

Editor    771 


Some    of    the    Strong    Men    of    Today. 

The   Editor    617 

Stephen   ^L   White— In  Memorlam 1137 

The      Advi'Dturous      Career    of    L.    A. 

Norton.    The    Editor 593 

The     Birth     of     the      Commcmwealth. 

I'rofessor  Rockwell  D.  Hunt 35 

The  Bonanza   Suits  of  1877.     John  H. 

Burke    95 

The    (,'alifornia    Code    of    Laws.      The 

Editor   191 

The  Death  Penalty  for  Larceny.     The 

Editor    75 

The    Early    Bench    and    Bar    of    San 

Jose.    John   E.    Richards 1107 

"The  Field  of  Honor."  The  Editor..  1^27 
The    History   of   the    Mining    Laws   of 

California.     John   F.    Davis 279 

The    Horace    Hawes    Will    Case.      The 

Editor    213 

The  Junior  Rank.     The   Editor 993 

The    Remarkable    Contempt    Case    of 

Philosopher  Pickett.  The  Editor  367 
The     Celebrated     Will     of    James     G. 

Fair.      The   Editor 335 

The    State    Supreme    Court    From    Its 

Organization    349 

The    Strange    Story    of    an    Old    Bank 

Deposit.     The   Editor 197 

The  Treaty  of  Guadalupe  Hidalgo  and 

Private  Laud  Claims.     John  Cur- 

rey    57 

The    Tragic    History    of    the    Sharon 

Cases.     The   Editor 173 

Veterans      Surviving      in      1900.      The 

Editor   483 


BIOGRAPHICAL  SKETCHES 


Abbott,    John    E 553 

Abbott,    William   M 993 

Acker,   N.   A 993 

Adair,    A.    Aird 772 

Adams,    A.    C 662 

Adams,    Charles    A 993 

Adams,    Frederick    771 

Adams,    John    Quincy 975 

Aiken,    William   H 772 

Aitken,  John   R 663 

Alexander,   D.   E 773 

Al(>xander,    John    K 663 

Albery,    K 773 

Aldrich,    Hugh    S 993 

Allen,    M.    T 665 

Ames,    Fisher    773 

Anderson,  James  A 774 

Anderson,    W.    A.    (Sacramento) 774 

Anderson,    \V.    A.    (Woodland) 995 

Anderson,   William   H 993 

Andrews,    II.    P 994 

Andrews,    Lewis   W 995 

Angcllotti,   F.   M 665 

Annable,    E.    R 774 

Armstrong,    John    W 665 

Ariiot,   N.    D 666 

Archer,    Lawrence    528 

Austin,    H.    C 975 

Avery,    Russ    995 

Babcock,  (Jeorge   777 

Baggett.    William    T 777 

Baker,   E.   D 431 

Barclay,   II.   A 777 

Barker,   Donald    996 

Baldwin,    Joseph    G 559 

Baldwin,   Llovd    542 

Banning,    Edward    J 995 

Barham,    John    A 778 

Barnard,   Archibald    781 

Barnes,   Wm.    II.   L 617 

Bartnett,    Walter  J 996 

Bates,    Joseph    C 781 

Beard,    J.    S 667 

Beattv,    William    A 996 

Beatty,   William   II.   (Chief  Justice)...  658 


Beggs,   William   M 997 

Belcher,    Edward    A 667 

Belcher,    Isaac    S 541 

Belcher,    Richard    997 

Belknap,    D.    P 783 

Bell,  Aaron   668 

Bell,    Harmon    781 

Bell,    Horace    782 

Bell,   Theodore  A 998 

Bennett,    Nathaniel    445 

Bergerot,    P.    A 1001 

Berlin,    F.    A 783 

Bicknell,    John    D 619 

Biddle,    J.    H 998 

Billings,    Frederick    467 

I'.ird,    Calvert    T 783 

I'.lake,    M.    C 551 

inaiH-hard,    James    II 784 

I'.laiKliiig.    William    550 

P.lcdsoc,    P.eiijamin    V 1001 

P.ledsoe.    Robert    E 784 

Hoalt.    Jidin    H 785 

P.oltoii,    A.    E 786 

Booth,    A.    G 789 

Booth,    Ilenlev    <' 1002 

Bordwell,    Walter    789 

Bowden,    Nicholas    '(89 

Bowden,    Wiliam   A 1005 

Bower,    E.    C 790 

l',ovtl.   James  T 524 

Brant,    Allan    998 

Bridgford.    E.    A 669 

I'.rittain,    F.    S 791 

Hri>heck.   William   1 1002 

Hroughton,    Howard    A 1009 

Brousseau,  .Iiilius    791 

ISrown.    F.    H 1001 

Brown.    U.    W 791 

Brunson,    Anson    670 

Brusie,    Judson    1002 

Buck,   (Jeorge   11 671 

Buekles.     A.     J 672 

Budd,    James    II 792 

Budd,   Joseph   II 675 

Bulla,    Robert   N 975 


1146 


History  of  the  Bench  and  Bar  of  California. 


Huiks,    Paul    1005 

Burnett,   Albert  G 075 

Burnett,   Peter  H 451 

Burnett.    W.    C 7'.)7 

Burchard,   Daniel  W 792 

Bush,   E.    li 075 

Butcher,    William    P 795 

Byrne.    Heury    II 442 

Caiiwalader,    George    401 

Cahill,    U 797 

Callen,    J.    S 1010 

Campbell,    Alexander    514 

Carey,    John    T 798 

Carothers.   Thomas   L <S01 

Carter.    Henry    E 1005 

Carter.    Oliver    B 976 

( 'asserly,    Euj,'eue    439 

Catlin.    A.    I* 499 

Cliamhers.    .Joseph    F lt^6 

("liapin.iii.    .Tohn    S 020 

Cliapiiian.    M.    (' 798 

Cliapiiian.    William   II •»79 

Chi-tWdod.   .liiliii.   Jr 976 

Chillis,    .lohii    L 1(H)(! 

<'li<'ncy.    William   A 766 

Churchill.    Clark    >.->() 

Clarke.    Kobert    M 1010 

Clarken.    U.    M ,S02 

Clciiiclir.    Henry   X 1(105 

Clciiicut.    K.    P S05 

Chiiiic.    Thomas    J ,S05 

CraifT.    William   T 1010 

( "rot  hers.   (Jeorfre  E 1017 

Crothers,   Thomas  G 1021 

Cobb,    C.    W 1009 

Cobl).    Moses    G 806 

CofTey.  .lames  V 676 

CofTroth.    .lames    W .-)82 

Cole,    Cornelius    .529 

Cole.    Willoufihby    .S07 

Cooper,    E.    C .  . ." 1009 

Conlan,   Charles  T 1010 

Comte,    Aujrust    807 

Conner,    Henry    808 

Conrey,    N.    P t 679 

Coogan,   T.   C 811 

Cook,   Carroll    679 

Cook.    Elisha    442 

Coombs,    Frank    L 811 

Cooney.    M 811 

Corcoran.   John    M 680 

Cormac,   T.   E.   K 812 

Coulter,   W.   A 81.3 

Countryman,    It.    II 1013 

Cres\v(,dl,    H.    T 976 

Cross,    Charles    W 813 

Crowley,    T.    J 813 

Currey,   John    483 

Curtis,    N.    Greene 464 

Curtis.    William    J 814 

DaiuKcrlielil.    AVilliam    P .542 

Dainxerfield.    William    K 683 

Danni-nbaum.   Arthur  J 1013 

I)au«herty .    (J.    A 814 

Davis,    Edwin   A 087 

Davis,    Charles   Cassat 814 

Davis,    Henry   II 814 

Davis,    John    F 680 

Davis,   J.    W 684 

Davis.  William  It 815 

Day.    W.    S 687 

Deal.    W.    E.    F 819 

De   Golia,    George    E 810 

De  Haven,  John  J 6.58 

Delmas.    I).    M 625 

De  Long,   D    li 1014 

Del    Valle,    R.    F 825 

Denson,   S.   C 767 

Deuprey ,    Eugene    N 820 

Devlin;    Frank    R 1014 

Devoto,    James   A 1025 

De  Vries,   Marion   1013 

Duflf,   W.   L 820 

Dibble,    A.    B 549 

Dibble,  Henry  C 823 

Dickinson,    John    H 823 

Dillon.    Henry   C 824 

Dockweiler.    Isidore    B 1018 

Donnell,  John  A 823 

Donohoe.   Denis.   Jr loi4 

Dougherty.    Samuel    K 691 

Dorsey.   Jesse   R 1017 

Dow,  W.  A 823 


Dovle,  John  T 518 

Dumcy,   M.  C 825 

Dunand.    Louis   F 976 

Dunn.   Chauncey   H 826 

Dwindle.    John    W 465 

Eaton,   (>.    V 1617 

Ecker,   W.    H.   C 826 

Edgerton,    Henry    o70 

Eells,   Charles  P 826 

Elliott,    C.    A 1U17 

Emmet,    C.    Temple 4.58 

Estee,  M.  M Sj^J 

Estes,    Gustavus    K 1"18 

Evans.    Oliver   P Sj^S 

Fairchild.   James  D I'jl? 

Felton.   John   B ojjl 

Ferral,   Robert   V-.i 

Field,    Stephen    J ^_i 

Fifield.    William    II 

Finn.  John   F 

Fish.   William  A 

Fitzgerald.    W.    F 


Flint,  Frank  P 
Foltz.  Clara  S. 
Foote.  L.  H.  .. 
Forbes.  E.  A.  . 
Ford.  Henry  L 
Ford.  Tirey  L. 
Foulds.    John    \ 


835 
8.35 

1021 
6o 

1022 


828 
835 
832 
836 
836 
837 


Foulds.  .lonn  i: ":^.- 

Fowl.-r.  Robert  R II.'--- 


Fox.  Charles  N. 


00 


Fredericks.  John  D 1"1^ 

Freeman.    A.    C ^^ 

Freeman.    Edwin    %\ 2°^' 

Fry.    Fred   W »:^« 

Gage.   Henry   T »^» 

(iale.    D.    R «42 

Gallagher.    James    L l"JJl; 

(Jalpin.    Philip    G »46 

Garbcr,   John    <>-!' 

(Jardner.    W.    M l^>^a 

Gates.    L.    C ^-^8 

♦Gear.    George    D lO-^l 

Gear.    Iliram   L ^j^ 

Gearv.   Thomas  J "-il 

(Jeil.'  S.    F S-*"' 

(ieis.    Ben    F l"-6 

Gesf ord.    Henry    C 980 

Gett.    William    A 1<>25 

(iibson.   E.   M <>9-5 

(iibson,    James   A 704 

Gillett.    J.    X S41 

Glassell.    Andrew    ■•     841 

Goodfellow.    W.    S 649 

Goodrich.  Benjamin  846 

Gottschalk.    C.    V 69.i 

Gosbev.    I*.    F 8.50 

Goldner.    Alfred   C 849 

Gooding.    H.    C 845 

Gordon.    Hugh    T 979 

Goudge.    Herbert    J 1027 

Goubl.    Will   D S..:i 

Grant,  Gus  G.  1095 

Grant.    W.    H 692 

(Jrant.   William    1090 

(Jraves,    J.    A .8.53 

Graves.    Walker   C 8.50 

Gray,   Giles  H ,8.53 

(Jrav.    John    C 695 

Gray.   Rosco(>  S ,8.54 

Greathouse.    Clarence    R 5.5.3 

Greene,    William    E 699 

Gregg.    Frederick   W 10.33 

Griflith.    Hansford    B 1026 

Gunnison.    \.   J 527 

Gntsch.     Gustav     1027 

Haas.    Walter    F 1028 

Hairer.    John    S 447 

Hall,     E.     S 8.54 

Hall.    Frederic    W 8.54 

Ham.    B.    D 707 

Hambly,   Francis  J.   H 1030 

Hanlon.    Charles    F 8.54 

Hargrove.    Robert   Lee 1029 

Harlan.    Paul    C 1030 


*After  the  notice  of  Mr.  Gear  on  page 
1021  had  been  printed,  he  was  nominated 
by  the  President  to  be  Second  Judge  of 
the  Circuit  Court  of  the  First  Circuit  of 
the  Territory  of  Hawaii,  and  the  nomina- 
tion was  confirmed  l>y  the  United  State.s 
Senate  on  the  2d  of  March,  1901.— Editor. 


History  of  the  Bench  and  Bar  of  California. 


1147 


Harmou,    John    15.  . 

Harrier.    L.    G 

HarriniMii,   Ralpb  C 

Harrison,   Ralph  C 

Hart,    10.    C 

Hart.    W.    H.    H 

Hastings,    S.    C 

Harris,    Will    A 

Hassett.   M.   C...... 

Hastings,   Horace   M 

Hatch,  Jackson   

Haven,    James   M 

Haven,   Thomas  E 

Hawes,   Horace   . .  > 

Hawes,    Horace,   Jr .. 

Hawes,   Horace  (Fresno). 

Hawkins.   X.   A 

Hawks,  W.  W 

Havmond.    Creed    

Haves,   George  R.   B 

Hazard,    Henry    T 


t),S3 

1082 
4.")7 


ooJ. 

1U31 

GGU 

662 

707 

857 

454 

■  ■ ; : 863 

867 

860 

■  ■  ■  ■    983 

860 

; 1031 

21.3 

217 

860 

863 

593 

580 

550 

; 867 

Healey,    Benjamin    ^[j^ 

Hehbard    J^C.  B ■.■•••    ^Jg 

Heller.   L,.   S cfj-j 

Helm.    Lynn    ■  • .f.H^ 

Henderson,    John    H ^'^ 

Hendrick.    E.    W.. • f^ 

Hendrickson.  William,  Jr i"|>- 

Henley,   Barclay ^^^, 

Herrin.    William    F ^•^•' 

Herrin.   William  J 

Hewitt.   L.   R.-.. 

Hevdenfeldt.    Solomon    ^;J' 

HeVnemann. .  Alexander   ^«i2 

Highton,  Henry  E ^V,| 

Hilborn,    S.    G -,;,:,., 

Hiu.  A.  w.--; ;::;  ^865 

Hinckley,   A.   G • -.,,„ 

Hinkson.    Addison   C '  '° 

Hittell,   Theodore    H »!|?^ 

Hizar,    J.    C • .  •  ■ -,.,./., 

Hodghead,  Beverly  L ^'^-^ 

Hoefler,    L.    M %^, 

Hoffman,   Ogden   3' r 

Hoge.    Joseph    P. •^"•_? 

HoUaday,    E.    Burke   l'«| 

Holladay,    Samuel    W i^i 

Holland,    Nathaniel    '..'*•' 

Holloway,    James    B ';i| 

Holl,    S.   Solon »/./ 

Holmes,    Isaac    E ^"" 

Holton,   George   M '^j.., 

Hornblower,    F.    A °'V^ 

Hosmer,  John  A ^,' Y 

Houghton,    S.    O odi 

Hubbell,  Stephen  C p.';f 

Horton,    R.    Landon l^-^* 

Hudson,  Rodney  J i\r, 

Hughes,    Joseph    W '  J,- 

Huston.    Arthur   C... \\-}^ 

Hutchison,    Edward    L ^'J',., 

Hutton.   A.    W 'J-i 

Hunsaker,   William  J "i* 

Hunt,    A.    B %Ll 

Husted,    F.    M • li^ 

Hvatt.  Thomas  Hart,  Jr »';». 

ll'ybuKl.   M.    H '^« 

Irvine.    Leigh    H.... f* 

Jackson,    Charles    H » ' •' 

Jackson,  John  P «  ;:; 

Jacobs,   Myer    p.')' 

James,    William   P l'^*^ 

Jarboe,  John  R •''  ;.' 

Jarrett,    I.    Edward 'IJ'" 

Jones,    Albert    F ^\' 

Jones,    Edward    I '  ^7 

Jones,   George  L ^'"" 

Jones,    Johnstone    °°/, 

Jones,    Julian    P i^^l 

Jones.    T.    E 'JT, 

Johnson,    Matt    F •^';*;* 

Johnson.    Sidney    L ••^2 

Johnston.    William    A "1' 

Jordan.    William    H ^'« 

Jiidson.   Albert   H f*^- 

Jury.    John    G |"-^1.' 

Kahn,    Julius    -^"gi 

Kelly,  Frank  P J^?.Z 

Kemp.    John    W l''-^.' 

Kendrick.    William   T ^^Ji 

Kenney,    Elizabeth    I I'j-.' ', 

Kinkade,   John   T •'•^•.^ 

Kirkbride,    C.    N I"-" 

Landt,   S.   V 


883 


1038 
.  683 
.  473 
655 
.  1038 
.  887 
.  1(142 
.  1038 
.  1042 
.  884 
.  887 
,  .  648 
.  .    1041 


Lane.    Franklin   K.... 

Larkius,    E.    O 

Latham,    Alilton   S.. 

Latimer,   L.   D 

Lea,   Clarence   F.... 

Lee,   Bradner  W.'... 

Leishman,    David    .. 

Leonard,    F.    A 

Leppo,   J.    R 

Leviusky,    Arthur    L 

Lewis.    T.    L 

Lieb.   S.   F 

Lindsay,   Carl   E 

Linforth,    Walter    H I'J;*.^ 

Lippitt,    Edward    S ;'•>:; 

Llovd,   Warren   E ^"-'- 

Llovd,   R.   H 

Lockwood.    Rufus    A... 

Loewcnthal.     Max 

Logan,  J.   H JL^^ 

Lorigan,    W.    G. 'J 

Loughborough,    A.    H -^J-Z 

Luce,    M.    A l\\ 

Luckel.    Louis    ^"^^ 

Magoffey,    John   H... 
^laguire,  James  G... 

Mahan,    James    P ,. 

Mahan,   Lawrence  E J'J^^^ 

Mannon,   J.    M '„„ 

Martin.    Edward    p'S 

Mau,    Charles    A \\^^% 

Mavo.    Henry    B 1"^*» 

Merrill.    Annis    ^°? 

Met  calf.    Victor    H ««;? 

Middiecoff.  w.  w 1'^;;;*. 

Henry   E 


637 
577 

888 
718 


1045 

722 

1045 


Mills.    Henry   E ^"J" 

Mitchell,  John  W 1'^;'* 

Mit.hell.    Robert   B.. f;^[J 

Mnnteith,    George    W ^l.'^-: 


Montgomery.    Zachary    •J:^' 

Md.idv,    Frank    *-^ 

Mdcre,    A.    A.,    Sr 

Morehouse.    Henry    V 

Mi.r.'land.    William    W 

Moruan.    Charles   O 

Moruanstern,   Alfred  J 

Mdrgenthal.    A. 

Morrison.    Alex.    F 

Morrow,   William  W 

.M,>rtiiner,   Charles  White 

Mowrv,    Lyman    I 

Mueller.    Oscar   C 

Mulvihill.     Henry     

Mtiiison.    (iilbert    D 

Minphey,  J,  L 

Minphv.    William    G 

Murray,    Hugh    C 

Mvri.k.    M.    H 

McAllister.    Hall    

MeClellaii.    Clifford    

McClellaii.    R.   Bruce 

MeClellaii.  R.  Guy 

McConias.   C.   C.  .. 

:\I,('ounell.    John    R *^" 

McClure.   David   J^j^.lj 

594 
l(t45 


899 

9tl.j 

i,j3 

90(t 

10.54 

984 

904 

655 

903 

911 

1058 

1058 

984 

904 

988 

435 

726 

417 

1045 

1049 

543 

888 

436 


890 


MeCoy.    A.    M 

McCullough.   John  G 
McCutcheii.   A.    U.  .. 

McDonald.    J.    Wade •;j;:V 

McI lougall,    James   A ;^;j':? 

McElroy,   J.   P •• Tjli 

McEnerney,   Garret  W \f/l 

McFadzean.    Daniel ^^*^ 

McFarland.  Thomas  B '"'' 

McCowan.    Frank    ••| 

McGraw,    E.   W '^J  .\ 

McKee,    Robert    L |.' - 

McKeinia,    Joseph    ir.' 

McKinlcy.   J.    W '-, 

McKinstry,   E.  W ^;!; 

McLachlan.   James   '•- 

McNab.    John    L 1""'; 

McNuUa.    Thomas    •;- 

McNutt.   Cyrus   F ;  _ 

Naphtaly,  Joseph ;  _ ' 

Needham.   James   C.  .            "  •" 

Nowbv.   Nathan   

Newb'urgh.  Henry  .. 
Newlands.  Francis  G 
Newmark.    Nathan 

Norton.    Edwanl    M .,j- 

Norton.   ("apt-   ^'-   -^ kko 

North.   John   W                          -"^^ 


10.57 

10.58 

IKIS 

li34 

1061 


1148 


History  of  the  Bench  and  Bar  of  California. 


Nowlin,  Thomas  W 90S 

Nusbaumer,   Emil    915 

Nvo,    Stephen    (J T25 

Gates,  James  W 912 

Ogilen,   Frank   H 7»> 

Oneal,  Lotiis   '. 1057 

Oster,   Frank  F 730 

Otis,   George   E TctS 

Parsons,    Levi    470 

Patterson.    William    H 544 

Patton,    Charles   L 1061 

I'atton,  Joseph   H 1061 

Peixotto,   Edgar  D 1067 

Pence,   Wallace  M 911 

Pendegast,    W.    W 593 

Perkins,    Thomas   Allen 1062 

I'eter,    L.    N 1061 

Phibbs,  George  P 911 

Phipps,    W.    T 911 

Pierson,    William    M 641 

I'irkev,    Oval    733 

Pistolesi,    Louis   C 1063 

Poage,    W.    G 1062 

Porter,    Frank    M 915 

Post,    Charles   N 916 

I'owell,    Howell    A 917 

Pratt,  O.  C 441 

Preston,   Isaac   H 917 

Pringle,  Edward  J 543 

I'urington,    W.    A 912 

Randolph,    Edmund    452 

Uea.   E    M 1064 

Redding.    Joseph    D 917 

Ueddv,    Patriok    538 

Reed,    Geo.    Wm 919 

Reid,   D.    G 918 

Reid.    Henry   H 920 

Reynolds,   John    734 

Rhodes,   A.   L 73o 

Rhodes.  William  H.  ("Caxton") 54o 

Richards.  John  E 922 

Richardson,    Owen    D 10i2 

Rives.  James  C 1071 

Robertson,   R.   F 1063 

Rol)inson,  A.  K 922 

Robinson,  Tod   4o9 

Robinson,   Walter   H 1063 

Rogers,  Earl   1067 

Rolfe,    H.    C 735 

Rolley ,    George  T 1064 

Ross,  Erskine  M 6-i< 

Rothchild,    J.    M 922 

Rothschild,    Joseph    919 

Ruddock,  J.   C 921 

Ruef,   A 1064 

Russell,   John   H 923 

Russell.   Samuel  B 1>J<1 

Rust.   Richard  C 736 

Rvan.   Frank  D 924 

livland,   C.   T 548 

Salomon,   E.   S 987 

Sanborn,    M.    E 927 

Sanderson,    A.    A in-i 

Satterwhite,   John    10<1 

Sawyer,    E.    D 520 

Sawyer,  Lorenzo  569 

Scarborough,  James  G 10^2 

Schillig.   Lawrence   1072 

Schaertzer,  Henry  C 1076 

Schlotterback,    P.    L 1075 

Searls,  Xiles   494 

Sea  well,   James   M 739 

Selvage,  Thomas  H y24 

Sevier,    Denver    928 

Sevier,   Ernest    929 

Shaw.    A.    E 1076 

Short.    Frank    H 1075 

Shortridge,    Samuel   M 1079 

Silent,    Charles    933 

Simpson,    C.    M !j^4 

Stearns,    Frederick    W -'^'j^*^ 

Sullivan,   Jeremiah   F 74 1 

Sumner,    Charles   E 988 

Scheeline,    S.    C ".'28 

Schell,  George  W 740 

Seymour,  Arthur  M 1092 

Shadburne,  George  D 929 

Shaf ter,    James   M 575 

Shatter,    Oscar   L 573 

Sharpstein,  John  R 554 

Shaw,    Liicien    743 

Short,    M.    L 744 

Slauson,  J.   S 930 


Sloan,   E.   W.   F 478 

Smith,    B.   N 744 

Smith,  Lucas  F 747 

Smith.    Sydney    V 555 

Stephens,  A.   M 748 

Stephens,    William    I) 934 

Sterry,  C.   N 937 

Stewart,  T.   M 930 

Stewart,   William   M 505 

Stone,    Frank    M 938 

Stonehill,   Edward  B 548 

Strother.    John    P 937 

Taft,    Fred    H .^ 942 

Tapscott.    James    R 1080 

Ta vlor,  Clav  W 540 

Taylor,   Edward  R 648 

Tauszky,    Edmund    943 

Temple,  Jackson   660 

Thatcher,   Arthur  J 1081 

Thom,   Cameron   E 943 

Thomas,    Charles   W 943 

Thornton,  James  D 751 

Thornton,   T.   C 1081 

Tiugley ,   George  B 590 

Toland,  Thomas  0 989 

Trask,  D.  K 751 

Trask,  Walter  J lo82 

Treadwell,    J.    P 589 

Trout,   James  M 752 

Tuttle,  Charles  A 553 

Tuttle,   F.   P 945 

Turner,  J.   W 944 

Tuska,    Waldermar   .1 945 

Tyrrell,    John    R * 1082 

Udell,   Charles    9^6 

Unangst,  Edwin  P 754 

Valentine,    L.    H 950 

Van  Clief.   Peter  456 

Van   Duzer,   A.   P 949 

Van  T)yko.   Walter   495 

Van   Fleet.   William  C 755 

Vnricl.    11.    H.    F 946 

Varicl.   William  J 1083 

Vau,i;lian,    Marvin    T 1084 

^■r(M)IuMn.  Henry   539 

Wahrlialtig.    M.    S 951 

Wallace.    W.    B 7u( 

Wallace,    William    T 404 

WalliiiiT.    J.    M 757 

Walthall.    J.    M 1085 

Ward,   Shirley  C 1084 

Wascerwitz,    M.    H 108o 

Waterman.   J.    F 951 

Waters.    Russell    J 951 

Wavmire.    James   A 952 

Weaver.  J.  IL  G 957 

Wehe.    Frank    R 958 

Wclrh,   J.    R 1086 

Wcvl.   Bertin  A 1087 

Wellborn,  Olin  657 

Wells,   G.   Wiley 964 

Wells.    John    J 1086 

Wells.   T.    H 758 

Whc.iton,  M.   A 958 

Wheeler,    C.    M 964 

Wheeler.   E.  D 555 

White,   Clinton   L 1092 

While,   Stephen   M 642 

"In    Memoriam"    1137 

Wilbur.    Curtis  D 1087 

Wilev.   II.   R 968 

Wilcox,   Edwin  A 108/ 

Wilcox.  U.   E 1088 

Williams,    B.    T 765 

Willis.    F.    R 968 

Wilier.  George  F 1088 

Wiiinns,    Joseph    W 449 

Wils(,n.   Charles  E 967 

Wilson.    C.    N 969 

Wilson.   Percy  R 969 

Wilson.   Samuel   M 566 

W Is.  S.  D 973 

Wooilworth.    Marshall    B 1088 

Works.   John   D 646 

Works.   Lewis  R 1«'88 

Wrelman.  N.   E 1091 

Wright,   C.    C y^O 

Wright,   Selden  S 540 

AVitten.    C.    L 9(0 

York.  Waldo  M J-^9 

Young.   E.   B 9(3 

Younger,  Charles  B _974 

Zumwalt,  I.  G 1092 


History  of  the  Bench  and  Bar  of  California. 

INCIDENTAL  MISCELLANY 


1149 


Adams  &  Co.;  great  bank  failure 447 

Adventurous  Career  of  L.  A.  Norton.  ..      u93 

Alexander,  E.  P. ;  reference G(>4 

Alexander,   Roy  L. ;   reference G64 

Alcaldes;  Authority  and  Influence  of.  .  27G 
Allen.  Judge  C.  E.;  "Early  Bench  and 

Bar   of   San   Jose" 1126 

Almond,    William    B.;    Hittell's    refer- 
ence;   Richards'    reference.s;  XVII  1121 
Almond,  Judge  William  B.;  Anecdotes 

of    1121 

Angus,  James  S.;  Pair  will  case 337 

Appropriators;    Rights   of 506 

Archer,    Lawrence;    wins,    with   Judge 

W.  T.  Wallace,  a  bad  case 1118 

Archer,  Leo  B. ;  reference 529 

Arnot,  Raymond  H  (reference) 667 

Ashley,  D.   R.;   "Early  Bench  and  Bar 

of    San    Jose" 1128 

"Attorneys-General   of   California"....     357 

Baggett.  W.  T;  reference 431 

Baker,  E.  D.;  McDougald's  tribute 469 

Baker,  E.  D. ;  reference 503 

Baldwin,  A.   W.   (reference) 560 

Baldwin,   Barry;  reference 655 

Barnes,  W.   H.   L. 

Reference    679,    5.52 

In    Sharon   case 176,   177 

Hawes   will    case    216 

Burton,  John;  First  American  Alcalde 

of  San  Jose;   anecdotes  of 1107 

Bates,  Joseph  C;  Hawes  will  case....  2x6 
Beard,    Elias    L.;    "Early    Bench    and 

Bar  of  San  Jose" 1x22,  1124 

Beatty,  Chief  Justice;  Mining  Laws. 290.  319 
Beatty,   Chief  Justice;  death  of  Judge 

Terry   431 

Beattv,   Samuel  G. :  reference 527 

Bell,  Rev.  S.  B.  (Harmon  Bell) 781 

Benham,      Calhoun;      Broderick-Terry 

duel    251 

Bensley,  John   (reference) 519 

Bergin,    Thomas    I.    (sketch    of    Judge 

Sharpstein)    554 

Bergin,  Thomas  I. ;  reference 5.54 

Bishop,  Thomas  B. ;  reference 513 

Bishop  &  Wheeler  law  firm;  Fair  will 

case    345 

Black  Will  Case  (Judge  Sea  well) 739 

Blythe  Estate,  Case  of  (Judge  Coffey).  679 
Blythe    Estate;    sketch    of    W.    II.    H. 

Hart    857 

Bonanza  Firm  of  Mackay,  Fair,  Flood 

&   O'Brien 336 

"Bonanza    Suits    of    1877;"    John    H. 

Burke 95 

Booker,  Samuel  A.;  reminiscences 385 

Booth,  Newton;  sketch  of  Lockwood...  580 
Bowman,  J.  F.;  Shakespeare's  pla.vs.  .  565 
Boyd,    Alexander    (Sketch    of    Jas.    T. 

Boyd) 527 

Boyd,    James    T. ;    estimation    of    Gen. 

McCullough 595 

Bradley,   H.   W. ;  reference 493 

Bresse,  Louis  C. ;  Fair  will  case 337,  341 

Broderick,  David  C. ;  Notice  of 245 

Broderick-Terry  Duel  of  18.59 2.51 

Brown,    Gratz   K.;   sketch   of  Geo.    W. 

Monteith    3054 

Browne,  J.  Ross;  reference 289 

Buckner,    Jiidge    R.    B.;    "Early    Bench 

and   Bar  of  San  Jose" 1126 

Buckner,    Stanton;   reference 388 

Budd.    James    H. 

Fair   will   case .-{45 

Bugle  Song,  The;  Tennvson 461 

Bulkhead  Bill  of  18(>0 477,  511 

Bulkhead  Bill  of  1860 .564 

Bulkhead  Bill  of  1853 447 

Burbank,  Calel);  reminiscences 377 

Burke,     John     H.;     Bonanza     suits    of 

1877    95 

Burnett,  Peter  H.;  reference 47 

Suspends    I'refect    Hawes 215 

Caminetti   Act  of  1S93 3'28 

Campbell,  Alexander;  Fair  will  case.  .  .     216 

Campbell,  J.  <". :  reference 538 

•Campbell,  Judge  John  li. ;  Judicial  Con- 
test (sketch  of  B.  F.  Bledsoe) 1001 


Carpeutier,      10.      R.;      Harry      Bvrne's 

estate ". 443 

Castillero,  Andreas;  discoverer  of  New 

Almaden  mine   4.53 

Cavis,  James  M. ;  reference 594 

Code  Definition  of  Crimes;  Wisdom  of; 
Introductory  Article;   XV. 

Coffey;  James  V.;  references 590 

Coffey,  Edward  I.;  reference 676 

Coffey,  Jeremiah  V.;  reference 676 

Coffroth,  James  W. ;  lynching  of  John 

Barclay 272 

Cohen,  A.  A. ;  reference 448 

Collins,    Geoi'ge    D.;    Wong    Kim    ark 

case    1099 

Colton,  D.  D.;  Broderick-Terry  duel. 251,  261 

Broderick  Will  Case   209 

Colton,   Walter,   and   "Colton  Hall"...   1110 

Common  Law;  Adoption  of 47 

Comte,  August,  Jr.;  The  Law  Codes.  . .  192 

Congdon;  George;  reference 76 

Conness,     John;     Report     on     mineral 

lands 30'6,  308 

Constitutional    Changes.    Introductory 

Article;   XV. 

Contempt  Case  of  David  S.  Terry x6\ 

Cook,    Eli;   reference 442 

Cope,  W.  B. ;  reference 688 

Cope,  W.  W. ;  reference 542 

Cora,    Charles;    killing    of    Gen.    Rich- 
ardson    431,  448 

Cornwall,  W.  A.;  Gilbert-Denver  duel.  228 

Cornwall,  P.   B. ;  reference 490 

Courts    of    First    Instance;  Important 

Factors  in  Early  History 1110 

Cowles,   Samuel;  reference 527 

Crabbe,  Henry  A.;  Fatal  Filibustering 

Expedition    into    Mexico;    "Early 

Bench  and  Bar  of  San  Jose"...*.  1124 
Craven,     Nettie     R. ;     the      Fair     will 

case 339,  345 

Creanor,  Charles  M.;  reminiscences. . . .  385 
Crichton,   W.   D.   (sketch  of  Hon.  Jas. 

C.    Needham)    1057 

Crittenden,   A.   P. ;   reference 52 

Crittenden,  A.   P. ;  Notice  of 402 

Crittenden,  James  L.;  Death  of  Judge 

Terry   431 

Crocker,  Charles  F. ;  repair  of  Sutter's 

Fort   368 

Crockett,  Joseph  B.;  Pickett  Contempt 

case   *3,^0 

Crosby,  E.  O.;  notice  of 48,  49 

Crothers,  George;  the  Fair  will  case.  .  345 
Crothers,     Thos.     G.;     the     Fair     will 

case    .337,  345 

Currey,    John;    Tribute    to   Judge   Van 

Clief 457 

Tribute  to  Judge  Sloan 478 

References .589,  590 

Treaty  of  Guadalupe-Hidalgo,  etc.  57 

Pickett  Contempt  Case 370,  373 

D'Ancona;  Dr.  A.  A.;  ref(»rence 684 

Davis.     John     F.;     Article    on     Mining 

Laws   279 

Debris  Commission  of  California 327 

Delmas,  D.  M.;  the  Fair  will  case 345 

Denson.    Oatman   &   Denson;   the   Fair 

will  case .^45 

Denver.  General  James  W.;  Notice  of.  231 

Duel    with    Gilbert 2'27 

<luel  with  Gill)ert 227 

Deupr(>y,  lOugene  N.;  reference 512 

De  Young,  Charles:  killing  of  bv  Kal- 

loch .■ 513 

De    Young,    M.     II.;     shooting    of    by 

Spreckels    .513 

De  Zaldo.  Don  Ramon;  Notice  of  (Pat- 

t  erson )   .544 

Dickinson,  (!en.  John  H. ;  reference....  345 
DiuHiiii'k.   Kimball   II.;  last  Alcalde  at 

San    Jose    1109 

Division   of  the   State;   Gov.   Latham's 

^'ie\vs 475 

Dodge.    Henry    L. ;    reference 874 

DonniM-  I'artv  of  l.S4(;  (Sketch  of  Wm. 

C.   Murphy)    988 

Donner   j'arly.  The;  reference .5.33 

Doiiolioe.      Denis;      British     Consul     at 

San  Francisco;  reference  1014 


1150 


History  of  the  Bench  and  Bar  of  California. 


81 
429 


181 


Dovle.  John  T. 

"Recovery  of  the  Pious  1' uud, 
Kef erenco    

Dwinelle,  John  W. ;  reference 48 

The    Law    Codes 1>!;^ 

DwineUe,   S.   II.:  Notice  of 41; . 

Piclvett  Contempt  Case -wJ 

Duels.     See   "Field  of  Honor."  _ 

Dunn,  Francis  J.;  reminiscences {8( 

"Earlv    History   and    Early    Day    Law- 

vel-s-IIon.  M.  M.  Kstce ;  W | 

Ellfs.  E.  F.  AV.:  reference •  • .  ■  -i^^ 

"Eloquence    of    the    Far    AVest    —Col. 

Raker's    speeches:    reference 4._.4 

Estee    M.  M.:  Pickett  contempt  case.,  ^i  • 

Earlv  Day  Lawyers f^-* 

Evans.  Oliver  P. :  reference 4M 

The  Sharon  Case ■  l" 

Farish.    A.    L.;    the    Terry    Contempt 
case    

Fair,  James  G.:  Notice  of .  •  •  • 

Fallon.    Captain    Thomas:    hoists    the 

Flag  at  San  Jose  in  1846 HOi 

Flickinger,   J.    II.:    "Early    Bench   and 

Bar   of   San   Jose" 11^9 

"Fair  Trust  Will  Case" •>•« 

Ferguson,  William  I.:  Notice  of -44 

Fatal  duel  with  Johnston -40 

"Field  of  Honor.  The:"  Historic  Duels 

in  California:  The  Editor --^ 

Denver-Cilhert   —' 

P.n.derick-Smith    -i- 

Uust-Stid^-er    I-M 

'I'evis-Lippincott    —J' 

Johnston-Ferguson    -■*'_' 

Kroderick-Terry    -■*•' 

Field.    Stephen   J.;    Opinion    ui    Sharon 

The   Law   Codes    1;*;^ 

Field,   David  Dudley:  the   Law  Codes.  l!».i 

Fitch,   George  K. ;   reference ;j3( 

Fitch,  Thomas;  Duel  with  J.  T.  Good- 

man   Ij^^:. 

Keminiscences  of   ^J' 

Foote,  Gov.  Henry  S.;  references.  .444,  uOb 
Ford,       (Jen.       Tirey       L.:       Hydraulic 

Mining    •■••^" 

Franks,    J.     C:    the    Terry     contempt 

case    ^°^ 

Freelon,    T.    W. :    reference 443-4 

J.   D. :  reference -ISO 


Fry. 


Lelanil    Stanford's 


r,.->4 


Gage,    Stephen    T. 

Will     

Garber.  John. 

Allusion  to  Hall  McAllister 41i 

The    Fair    will   case 34.'> 

Garniss,   James   R.:   reference <m-1 

George,  Henrv:  E.   R.  Taylor's  service 

to    Wi» 

"Progress  and    Poverty    <)-t9 

Gilbert.  Edward:  fatal  duel   with  Gen. 

Denver    --^ 

Goodfellow,   W.   S. 

The  Fair  will  case 'V.it.  .U-> 

Goodman,      Joseph      T.:      duel       with 

Thomas    Fitch    '{'l'.) 

Gold  Mining  in  Ancient  Times:  Pliny's 

Description    -'•' 

Gorham,   George  C:   reference 4'_':: 

Grand   Jurv    Svstem   Modified 4'.m; 

Graves,   J."  A.;   sketch   of  Judge   P.run- 

son     671 

(Jrav,    Carleton:    reference <'>'.''.» 

<Jray,   Miss   Ida   B.:   reference <','.)'.i 

Gray.    Roscoe   S. :   reference T(I4 

GreiTie.   Carlton  W  (reference) 700 

Guadalupe    Hidalgo,    Treaty    of,    Etc.: 

John    Currey    •"•" 

Gutsch,    Gustav;    "Legal   Education    in 

the    Cniversity    of    California"...      221 
Gwin.    William    M.:    duel    with    Judge 

McCf.rklc     363 

P.roderick-Terrv    Dud    ;;-*6 

Haas,    Walter    F. ;    reference .".33 

Ilaggin,    James   B.:    reference 874 

P.roderick    Will    Case 211 

Haiglit,    Henrv    II.:    association    with 

Judge   Temple    660 

Hale  &-   Norcross   F.amous  Suit    ....6(>0,   708 

And  See  Baggett,  W.  T. 

Hamilton.   Jo. ;   references .">,S3.   ."'>!t4 

Ilartlv.  James  H. :  Iinpeacliment  of...     .">!I4 

Hastings  College  of  the  Law 221,  4.-.6 

Ilavemeyer   vs.    Superior  Court   of  San 

Francisco     6.")i> 


llaun.  Judge  Henry  P.;  extraordinary 

court    scene    426 

I  lawks,   W.   W. ;  Notice  of 593 

Hayes,    John;    throws    Kearney    from 

public    platform    512 

Ilayue.   Ro1)ert  Y.;  Fair  will  case 345 

reference    543 

Hester,    Judge    C.    P.:     "Early    Bench 

and   Bar  of  San  Jose" li.12 

llengstler,      Louis     T.;     Professor     of 

Jurisprudence    222 

Heron,  Matilda;  marries  Harry  Byrne  445 
llcniii.  \\llliam  F.;  Fair  will  case....     345 

Itercicnco    679 

The    Sharon    cases 179,    180 

Ilcsketh,    Sir   Thomas:    reference 173 

IliuliloM,    H.    E.:    reference o-kl 

Judges   as   I'.    S.    Senators 409 

"Ilistorv     of     the     Mining     Laws     of 

California."  Hon.  John  F.  Davis.  279 
Ilolladay,    S.    W.;    "Military-Civil   (Jov- 

ernment"    3 

I I  it  fell's   History  of  California. 

Story  of  a  Revolting  Case 273 

Influence   of   Alcaldes 276 

Early  Days  of  Placer  Mining 288 

Holland,    Nathaniel;  Notice  of 555 

Hoge,    Joseph    P.;    Pickett    contempt 

case    .369 

Howard,  Charles  Webb;  reference....  ."175 
Hunt,    Rockwell     D.;    "Birth     of     the 

Commonwealth"    35 

Hume,    Hugh;    banquet    to    Judge    Mc- 

Keiina    655 

Humphreys,  John  T.:  reminiscences..  383 
Hvdraulic     Mining     L'nder     Caminetti 

Act     329 

Johnston,   Geo.   Pen.;   Notice  of 243 

Fatal   duel   with  Ferguson 240 

Jones.   Charles  T. ;  reference ."»44 

Jones.      William      Carey;      e.stablishes 

school  of  jurisprudence 222 

Juanita;   woman  hung  by  a  mob 273 

Judiciary— Federal    and    State 653 

Jurv,  John  G.;  "Lynch  Law  in  Cali- 
fornia"         267 

Infernal  Machine  Sent  to  Judge  Field  428 
Inscription     on     a     Dog's     Monument; 

Byron    374 

"Irrigation      Laws     and     Decisions;" 

John    I).    Works 101 

Irrigation      Law      Remodeled:      Judge 

Bridgfoid    670 

Jessup     Case.     The:     sketch     of    Judge 

Fox    704 

.lohnson,   James   A.;    Pickett   contempt 

<ase 372 

Johnson,  Gov.  J.  Neely:  proclaims 
San  Francisco  to  lie  in  insurrec- 
tion          249 

Johnson,  Sidney  L.:  the  Law  Codes...  192 
.lones.    James    M.;    "Earlv    Bench    and 

P.ar   of    San    Jose" 1112.    1122 

Keai-nev.        Dennis:        borrows       Tom 

Fitch's  cIo(inence    .397 

Thrown    from    pulilic   platform...      512 

K<'eMe.    J;imes    K  ;    reference .543 

Kellogg.      M.      P..:      association      with 

Judge    Fox     704 

King.     FrcMlcric     R     (association     with 

Judge   Fox)    704 

Kniglif  iV:  Heggartv:  Fair  will  case...  345 
Know  Nothing  Party  of  the  Fifties.,  254 
Lackiiiann.     John:     sketch     of    W.     J. 

Herrin    983 

Lake,      l)elos:      Anecdote     of;      "Early. 

Bench  and  Bar  of  San  Jose" 1127 

Lake,    Delos;    Reminiscences   of .383 

Lawyers,       Memorable       Defense      of; 

Henry   Edgerton    572 

Lawyers    Selecting   Judges 401 

Leavenworth,  T.  M.,  Alcalde;  Clash 
with  the  "State  of  San  Fran- 
cisco"       nil 

Lee  iV-  Scott;  prominent  Los  Angeles 
law     firm;     the     Pomeroy     case; 

(Sketch    of   Judge    Shaw) 743 

Lees,   ("apt.    I.   W. ;    Sharon   case 181 

Legal     Education     in     the     State     I'ni- 

versity;     (Justav    <;utsch 221 

I.eib,     S.     F 648 

I.evingsfon.      Dr.      Marc:      Fair      will 

Dougall's    humorous    speech 471 

I.imllcy.    Curtis    II 223 


History  of  the  Bench 

Lippincott,  Beu;  "Wings"  Judge  W:it- 

son's  hat    1120,    1121 

Liquors   in   tlie   National   Capital:    Mo- 

Lockwood,    Ilufus    A.:    "Early    Beni-li 

and  Bar  of  Sau  Joso" 1121.  1125 

Llovd,    U.    H. ;    reference ■Ml 

LloVd,  K.  H.;  allusion  to  Hall  Mc- 
Allister         417 

Lloyd  &  Wood;  San  Francisco  law- 
firm;   Fair   will   case 345 

"Lord       of       Hardscrabble;"       "Karly 

Bench  and   Bar  of  San  Jose" 1118 

Louderback,   Judge  Davis  (judgment  in 

Hayes-Kearney   case    513 

Lvnch    Law    in    California;    John    ii. 

Jury    207 

Lyons.  T.  J.;  Judge  Coffey's  de- 
cisions          676 

case    337,   345 

Maguire,   James   G. ;    reference 538 

Market  Street  School  Lot,  San  Fran- 
cisco, How  Saved:  (sketch  of  E. 
D.    Sawyer)    524 

Marshall,    E.    C;    reference 197 

Marshall.  James  W.;  discovery  of  gold     282 

>Lirysville:  How  the  City  Received 
Its  Name:  (sketch  of  Judge 
Field)    423 

Mason,  R.  B.;  First  Military  Gov- 
ernor.    See  Introductory  Article. 

"Masters  Who  Followed  the  Pio- 
neers;"   The    Editor 559 

Mastick,   E.  B.;  reference 574,  575 

Matthews,      William;      "Early     Bench 

and  Bar  of  San  Jose" 1113,   1125 

May,     R.     M.;    First    Judge    of    First 

Instance  at   San  Jose 1112 

Melone,     H.     C. ;     "Earlv    Bench     and 

Bar  of  San  Jose" 1119 

Meredith,    Henr.v;    reference 506 

Metcalf  vs.  Argenti  et  al 579 

Metcalf  vs.  Argenti:  case  tried  in  Sau 

Jose   1123 

Metson,    William    H.;    reference 538 

Miller,    W.    H.:    U.    S.    Attorne.y-Gen- 

eral ;    Sharon    case 184 

Mills,    D.    O.;    Leland    Stanford's   will; 

(sketch    of   Judge    McKenna) 654 

Militarv-("ivil      Government,       1846-50: 

Samuel    W.    Ilolladay 3 

Mining    Laws    of    California,    History 

of;  John  F.   Davis 279 

Minor,    Peter    ().;    "Early    Bencli    and 

Bar   of   San   Jose" 1112 

Missing     P.ank     Depositors:      law     for 

l)ul)lication    197 

Mooii',  A.   A.,  Jr;  reference !U)I) 

Moore.    John    11.:    "1-L-uiv    Bench    and 

Bar  of  San  Jose" 1113.   Ills 

Montague,    W.    W.:    Pickett    contempt 

<"ise    :',73 

Moore.    Ben.;    Reminiscences    of .''.85 

Moultrie.     J.     A.;     "Early    Bench    and 

Bar   of   San   Jose" 11 2(1 

.Mind.pcli.     F.    B.:     "Earlv    Bench    and 

Bar  of   Sau   Jose" 1115 

-McAllister.    Matthew    II   ;    .Notice   of...      417 

.McCoiUle.    Judge   Jos.    \V.:    "Our    First 

Water   Rights   Decision" ItCl 

McCullotigh.    J.    <;..    Attornev-General: 

The    Law    Codes l'.)l 

McCnlloiigh.     Joiin     G.:     Remarks     on 

Death   of  Judge   Sloan 47S 

.McDonald.      Calvin      B.:      Account      of 

Tevis-Lippincol  t    dud    2:!7 

.McDonald.    Calviir    1!.;    line    Iriliulcs    to 

E.     D.     Bakei- 4;!4 

McGowan,    Edward;    the    <!ill(ert-l  )en- 

ver  duel    22,S 

MclOnernev,   <J.    W. :    Fair   will  case....      345 

.Mrl'Mil.ind,    Thos.    B.;    reference .583 

McGlvnn,     John     A.;     Broderick     will 

case    20!t 

McKee.    Samuel    B.:    Pickett    contenipl 

case    ;!(;!l 

McKee.     Samuel     P.ell;     "l^arlv     Bench 

and    I'.ar  of   Sau   Jose" I12S 

.McKinnev.      Fi'eeman:     "lOarlv      Bem-li 

and    Bar   of    San   Jose"..' in:{.    1124 

.  -McKinstry,    ]■:.    \V.:    Pickett    contempt 

<ase     .•{(;<» 

Reminiscences    of     ...t-.-:' ;!77 

.McKinstry.    E.    W.:    reference 221.    4.S4 

Remarks  on  A.  P.  Crittenden....      404 
-McKinstry.    E.    W. :    reference   to   (iov. 

Riley    XVI 


and  Bar  of  California. 


1151 


McKinstrv,   James  C;   reference 493 

Early    Judicial    Methods XVH 

McKune,  John   11.;   reference 504,  508 

McLaughlin.  John  F.;  Sharon  case....     178 
Nt'agle,     David;     killing    of    Judge    D. 

S.   Terry    185,   180 

New   Almaden   Mine  Case 453 

Xewlands,   Fran(ris  G.;  reference.  .  .173,   180 
0"(/onnor,       Cornelius;       hamiuet       to 

Judge   McKenna    (>55 

oluey,    Warren:    reference 542 

Papy,   J.   J.;   witticism  about   McAllis- 
ter famil.v    421 

Parker,  Samuel  H.;  reference 527 

I'aierson,  Van  R.;  Fair  will  case 343 

Peachy,   A.   C;  reference 452,  453 

Reminiscences    411 

Peck-Palmer   Briliery   Case;   Catlin....     503 
Peckham,    R.    F.;    "Early    Bench    and 

Bar   of   San   Jose" 1127 

Pence    iV:    Pence;    San     Francisco    law 

firm:   Fair   will   case 345 

Pendegast,  W.  W.;  the  Law  Codes 192 

Perkins,    George   (J.;    reference 002 

Perle.v,    D.    W.;    Judge     Terry's     law 

partner    249 

The    Broderick-Terry    duel 248 

I'erley,   D.   W-;   Reminiscences  of 384 

Peyton,  Balie;  Reminiscences  of 382 

Pickett,   Charles  E.;   Notice  of 367 

Remarkalile    Contemi)t    Case 367 

Pierson,  William  M.;  Fair  will  case...     345 

Pillsbury,   E.   S.:   Fair  will  case 345 

Pious    Fund,     Recovery    of;    John    T. 

Doyle    81 

Pixlev,   Frank  :M.  :   Reminiscences  of..     383 

Broderick  Will  Case 210 

Phelau,    James   D.;    reference;    (sketch 

of  J.   <i.   Jury) 10.30 

And     see     "Stephen     M.     White  — 
In    Memoriam." 
I'liny's    Description    of    Ancient    (!old 

Mining    279 

Politics    in    California     in     the     First 

De(-ade    253 

Pomerov.   John    Norton;   reference 221 

Populat'ion  of  Californhi.  ls47-l.s.-)(i.  . .  .      283 
Porter.   Nathan:  sketch  of  E.   D-   Saw- 
yer         524 

Pringle,  Edward  J.   (2d);  reference....      544 

Pringle,    E.   J.;   reminiscences 413 

Pringle,  William  B. ;  reference 544 

"I'rogress       and        Poverty,"        Henr.v 

(Jeorge;   how   suggested (!49 

Publication  of  Unclaimed  Bank  Ac- 
counts          197 

Purvis.    R.   B.,   Sheriff;   Sharon  case...      185 

Railroad    Commission    499 

Railroad      Transportation:      John      T. 

Doyle's    i>roposed    reform 518 

Ralston,     William    C.;    reference 486 

Randolph,    lOdmund:    reference .52 

Reardcn,    T-    II.:    Broderick-Terr.v   duel     247 
Recoverv   of   the    Pious    Fund   of   Cali- 
fornia :  John  T.   Doyle SI 

Redding.  Joseph  D. :  the  Teri'y  con- 
tempt   case    ISl 

R<m1(1v.     ('apt.     E.     A.:     (sketch     of     1'. 

Ked(ly)    ."..'W 

Kcilnian,  .1.  I'".:  l>'irst  County  Judge  of 
Sanla  Clara:  many  anecdotes: 
"Eailv    Bench    and    Bar    of    San 

Jose"    1114,   1117 

Kced.  'I'homas  B.;  reminiscences 395 

Keid.   D.  (!  ;  "Our  First  Water  Rights 

Decision"    .'tOl 

Keid.   Henry  II.:  Introductory  Article.    XVI 
KcuiaiU.-ilde  Contempt   Case  of  Phllos- 

o|>lier    Picket  I     .307 

Kcniiniscences  of  .Imlges  iind   Law.vers     377 
Rhodes,  A.   L. :  Pickett  contempt  case.     309 

Rhodes.    A.    L. ;    reference 527 

-And    s(>e    lut  roductor.v    Article. 
Kichards.   John    E.:   "Earlv   Bench   and 

Bar  of  San  Jose" 1  i07 

Kilcy.      Bennet;      Last    Military      (Sov- 

ernor.   (Introductory     Article. » 
Kilcv.     (Jov.     B.:     Overthrow     of     "the 

State  of  San   l-'rancisco" lill 

Uoss.  Judge  E.  M.;  reference;  (Inlro- 
dm-tory   Articlel- 

Reference    185 

Uuef.   Abraham:   the  Fair  will  ca.se...     ."{45 
I!  viand.   C.   T- :   "Early  Bench  and   Bar 

of   San   Jose" 1112 

S.indei'son.  Silas  W. ;  Picdvctt  con- 
tempt   case    372 


1152 


History  of  the  Bench  and  Bar  of  California. 


Sanford,    E.    K.;    "Early    Ucncb    and 

Bar   of   San   Jose" 1124 

San   Jose.    The    Early    Bench   and    Bar 

of;  John  E.   Richards 1107 

SargcHt,    A.    A.:    reference   to   Jno.    II. 

McConnell    437 

Satterlee,   John;   reference 446 

Sawver,    E.    D.;    allusion   to   Hall    Mc- 

'Allister    417 

Scarlet    Letter,    The 246 

Selovev,  A.   A.;  Notice  of ^48 

Seniors  of  the  Collective  Bar 771 

Shakespeare's  Accuracy  on  Legal  Sub- 
jects         519 

Shakespeare's  Plays,  Authorship  of. . .     565 
Sharon  Cases,  Tragic  History  of;  The 

Editor    173 

Sketch  of  W.  M.  Stewart 506 

Sharon.   William.    Notice  of 173 

Interesting  History;  sketch  of  A. 

Merrill    486 

Sherman,    (Jon.    William   T.;   Vigilance 

Committee  of  '56 270 

Shortridge,   S.   M.;   Fair  will  case 345 

Slack.  Chas.  W. :  references 221,  339 

Slickons:  letter  of  Zach  Montgomery..     bi>6 
Smith.    Alexander;    Pathetic   Story   of; 

The   Editor    197 

Smith.  Capt.  N.  T.;  Leland  Stanford's 

will    654 

Smith.   Sidney   V..   Jr.;   sketch   of   Sid- 
ney V.  Smith   555 

Sonntag.   Henrv  P.;   banquet  to  Judge 

McKenna     655 

Speaker   of  the   Assembly;   Memorable 

Contest    of    1861 537 

Sprague.    Royal   T.;    Pickett   contempt 

case    369 

Stackpole,  T.  M.;  the  killing  of  Judge 

Terrv    185 

Stafford.    William    M.,    The    Lord    of 

Ilardscrabble    1118 

Stanford       University       Constitutional 
Amendment;    sketch    of    Geo.    E. 

Crothers    1017 

Stanford.    Leland;    Judge    McKenna's 

relation  to  his  will 654 

Last   will  of    654 

The    Law   Codes    191 

Stanlv,     Edward;     (sketch     of    J.     G. 

Baldwin)    559 

Staples,      D.     J.;     (sketch     of     Lloyd 

Baldwin)    542 

Stebbins.    Rev.    Horatio;    death    of    O. 

L.    Shaffer    575 

Stewart.  William  M.:  free  mining.  .284,  309 

Stow,  W.  W.;  references 544,  545 

Strange    Storv    of    an    Old    Bank    De- 
posit;   The    Editor 197 

Strong  Men  of  Today 617 

Sturdivant.      Robert     O.;     (sketch     of 

Montgomery)    537 

Swett.   John:    (Zach   Montgomery) 537 

Sullivan,     Judge    J.     P.;     the     Sharon 

cases 176,   178 

Sunday   Law;   Theaters   Closed    in   the 

Sixties:  sketch  of  S.  S.  Holl 871 

Summerfleld,    The    Case    of;    Caxton's 

Strange    Story    546 

Supreme    Court    of    California;    Com- 
plete List  of  All  Judges 349 

Taggart.    Grant    I  ;    Pickett    contempt 

case    369 

Tauszky.   Edmund;  Judge  Coffey's  de- 
cisions         676 

Telescopic  Eve.  The;  Caxton's  Story..     546 

Terry.    David   S. ;   Notice  of 249 

Broderick-Terry    duel 245 

Terrv,    David    S.;    the    Yoakum    cases; 

"S.   S.   Holl 872 

Terrv.     David    S.;    A.     E.     Wagstaff's 

■"Life"    173 

Temple,  Jackson;  the  Law  Codes 193 

Tevis.    Llovd ;    reference 874 

(Sketch  of  Annis  Merrill) 486 

Teschomacher,  Henry  F.;  Gilbert-Den- 
ver duel    230 

Thomas.   A.;  association  with  Jackson 

Temple   660 

Thornton,  James  D.;  Pickett  contempt 

case    372 

Tompkins,  Edward;  the  Law  Codes.  192,  193 

Tracy,  F.  P.;  Reminiscences 400 

"Chief  Justice   Beatty    660 

"The  Lord  of  Hardscrabble;"  "Poem"  1118 


"The    State    of    San    Francisco;"    see 
"Early    Bench    and    Bar    of    San 

Jose"    1110 

Tingley,  George  B.;  "Early  Bench  and 

Bar   of   San   Jose" 1113 

Tragic    History    of   the   Sharon   Cases; 

The   Editor    173 

Tuttle,   Charles  A.;  the  Law  Codes...     192 
Tug-Boat   Marriages;   Judge  M.   T.   Al- 
len         665 

Turner,   Judge   Wm.    R. ;   trouble   with 

Judge   Field    425 

Tyler,    George    W. ;    "Adoption    of   the 

Common   Law"    48 

The  Sharon  cases   175,  177 

Unclaimed     Bank    Deposits;     law    for 

publication     197 

Union  I'art.v,   Organization  of;   (sketch 

of  Judge  Van  Dyke) 496 

University    of    California;    (sketch    of 

Judge  Van  Dyke)   499 

Universit.v    of    California,    Legal    Edu- 
cation   in;    Gustav   Gutsch 221 

Unprecedented         Judicial         Contest; 

(Sketch  of  B.  ¥.  Bledsoe) 1001 

Van  Dyke.  Walter  (sketch  of  Tingley)     543 

Veterans   Surviving   in  1900 483 

Vigilance    Committees    of    San    Fran- 
cisco    274,  276 

Voorhies,      William;      "Early      Bench 

and  Bar  of  San  Jose" 1112 

Vrooman    Act,    The 539 

Wagstaft'.     A.     E. ;      "Life     of     D.     S. 

Terry"    173,    185 

Walker,    Gen.   William 454 

Wallace,      William     T.;     the     Sharon 

cases   176 

Reference 594,  2X1 

The   Havemver   case 659 

Letter  of  H.  E.  Highton 4uJ 

Reminiscences    405 

The  Pickett  contempt  case.... 370,  o<3 
Wallace,    William    T. ;    "Early    Bench 

and  Bar  of  San  Jose".  .1113,  1114,  1118 
Washington,   B.    F.;   reminiscences....     412 
Water    Rights;    first    decision    in    Cali- 
fornia         861 

Watkins,  A.  A.;  banquet  to  Judge  Mc- 
Kenna         655 

Watson,      Judge      John      H.;      "Early 

Bench  and  Bar  of  San  Jose"  1113,  1114 
Webster.   Daniel;   Independence  of  ine 
Judicary;    (Introductory  Article.) 
Weeks,    James    W. ;    Alcalde     at     Sau 

Jose    in    1847 1109 

Westmoreland,    Chas.;   arraigns   Judge 

Turner    427 

White,    Charles;    Alcalde   at    San    Jose 

in   1848    1109 

Will   Cases;   David   C.   Broderick 209 

Horace    Ilawes    215 

Ja  nies    (J.    Fair    335 

James   I'.lack;    (Judge   Seawell)...     739 
Williams.    Thomas   II.;    Broderick   will 

case    210 

Wilson,    S.    M.;    the    Pickett    contempt 

case   369 

Wilson   &   Wilson;   San    Francisco  law 

tirni:   the   I'nir   will   case 345 

Winans.  Joseph  W.;  reminiscences....  410 
Woman  Ilnng  by  a  California  Mob....  273 
Wong    Kim    Ark    Case;    Citizenship    of 

<'hin(>,se    1099 

Wood  worth.     Marshall     B.;     "Citizen- 
ship  of   Chinese" 1099 

Works,  John   D.;   Irrigation  Laws  and 

Decisions   of   California 101 

Opinion  in  Sharon  case 186 

"Wright    Act."    relating   to    irrigation; 

Sketch    of   Judge   Bridgford 670 

Same  (sketch  of  C.  C.  Wright)...     970 
Vale.   Gi-egory;   Broderick   will   case...     211 

"Mining       Claims       and       Water 
Yale,  Gregory;  secures  Judge  Almond's 

demijohn    1121 

Rights;"  (Judge  Davis'  article)2S7,  307 
Yates.    A.    I>. ;    "Early   Bench   and   Bar 

of   San    Jose" 1113.    1125 

Yoakum,    Bill    and    Tom;    lynching   of; 

S.    S.    Holl 872 

Yoell,     J.     Alexander;     "Early     Bench 

and  Bar  of  San  Jose" 1125 

Yontz,    John;    First    Sheriff    of    Santa 

Clara   County    1113,   1119 


1 


/'•'••I 


I'  J 


